CRIMINAL LAW THEORIES ..................................................................................................................................3 Reasonable Person ....................................................................................................................................................5 LEGALITY Statutory Interpretation .....................................................................................................................

.5 UNKNOWN MENS REA IN STATUTE ...................................................................................................................6 ACTUS REUS ..............................................................................................................................................................7 MENS REA: Guilty Mind ......................................................................................................................................... 10 CULPABILITY TERMS ........................................................................................................................................ 12 MPC Mens Rea Definitions .................................................................................................................................... 13 STRICT LIABILITY [MPC 2.02(5)/2.13] ............................................................................................................... 14 MISTAKE OF FACT [MPC2.04] ............................................................................................................................ 16 TYPES OF INTENT SPECIFIC INTENT, GENERAL INTENT, STRICT LIABILITY .................................. 17 MPC: Ignorance or Mistake of Fact AND Law 2.04 .............................................................................................. 19 MISTAKE OF LAW [MPC 2.02(9)] ........................................................................................................................ 20 CAUSATION [MPC 2.03]......................................................................................................................................... 22 PROXIMATE CAUSE/LEGAL CAUSE intervening cause ............................................................................... 22 CRIMINAL HOMICIDE .......................................................................................................................................... 25 First Degree Murder (express malice): ................................................................................................................... 26 Second Degree Murder (implied malice): ............................................................................................................... 27 VOLUNTARY MANSLAUGHTER...................................................................................................................... 27 INVOLUNTARY MANSLAUGHTER ................................................................................................................. 30 Model Penal Code 2.10 MURDER, MANSLAUGHTER, NEGLIGENT HOMICIDE ...................................... 31 FELONY-MURDER RULE ..................................................................................................................................... 32 Limitations on Felony Murder ................................................................................................................................ 32 ATTEMPT (Inchoate Crimes) .................................................................................................................................. 35 MENS REA FOR ATTEMPT ................................................................................................................................ 36 ACTUS REUS FOR ATTEMPT ............................................................................................................................ 37 7 CL TESTS FOR ACTUS REUS OF ATTEMPT + MPC Test ............................................................................ 38 DEFENSE TO ATTEMPT - Impossibility ............................................................................................................. 40 ATTEMPT DEFENSE - Abandonment .................................................................................................................. 41 SOLICITATION ....................................................................................................................................................... 41 CONSPIRACY .......................................................................................................................................................... 42 MENS REA for CONSPIRACY ............................................................................................................................ 44 SUPPLIER RULE (Lauria) .................................................................................................................................... 44 ACTUS REUS for CONSPIRACY ........................................................................................................................ 45 ACCOMPLICE LIABILITY = COMPLICITY ..................................................................................................... 47 MENS REA for accomplice .................................................................................................................................... 48

ACTUS REUS for accomplice ............................................................................................................................... 49 GENERAL DEFENSES ............................................................................................................................................ 50 MENTAL CAPACITY .............................................................................................................................................. 52 DIMINISHED CAPACITY ...................................................................................................................................... 57 SELF DEFENSE ........................................................................................................................................................ 57 4 ELEMENTS ........................................................................................................................................................ 57 Imperfect Self Defnese ........................................................................................................................................... 58 Self Defense and Battered Women ......................................................................................................................... 62 CASES ........................................................................................................................................................................ 63 Actus Reus .............................................................................................................................................................. 63 Mens Rea ................................................................................................................................................................ 64 Causation ................................................................................................................................................................ 65 Intentional Homicide .............................................................................................................................................. 66 Unintentional Homicide/FM ................................................................................................................................... 66 Capital Murder ........................................................................................................................................................ 67 Self Defense, Necessity, and Duress ....................................................................................................................... 67 Mental Illness as a Defense ..................................................................................................................................... 68 Attempt ................................................................................................................................................................... 68 Complicity .............................................................................................................................................................. 68 Conspiracy .............................................................................................................................................................. 69

CRIMINAL LAW THEORIES

PUNISHMENT Harsher punishment (more ppl in prison) Greater compliance Legislatures decide what and how much punishment fits offense Theories to justify punishment inform judges, lawyers, legislature MPC obvious drafted in 1950s during rehabilitation popularity. Punishment is societal condemnation and stigma w/conviction. Diff than tort/contract b/c public, social harm. Also need to justify it b/c pain/deprivation inflicted intentionally by state Punishment needed so threats of punishment taken seriously Constitution: may not be punished twice for same offense, may not be punished retroactively, and may not be subjected to cruel and unusual punishment. UTILITARIAN (societal use of deterrence/forward looking) (dominated in 20th) Punishment justified by utility to society as whole. Focus on future behavior Amount of punishment that effects behavior across society goal laws max net happiness society. Laws should be used exclude all painful/unpleasant events Some punishments must be disproportionate to keep people from doing it b/c seems minor. Ex. Speeding tickets. Punishments should not be groundless, unprofitable Deterrence: individual (punishment deters by incapacitation and intimidation not to commit again) or general (punish D to convince general community forego crime) People act rational, self-interested, individuals so would be deterred from engaging in crime when think rationally. Can question this o Not always true. Passion crimes? Getting caught might be low chance o Wrongly assumes ppl making choices b/t socially accepted choice. Rehabilitation: popular in 60s. Same goal to reduce future crime but educate not to commit. View as illness. Some ppl thought being soft on crime. Studies showed programs werent effective. Advocates say didnt give them a chance. Certain areas still persist (drug, assault, domestic violence, targeted anger management) o Issue: Indeterminant sentencing: how long incarcerate? As long as takes. Could be rest of life for petty crime. Incapacitation/Incarceration: Remove offender from society. Indiv. deterrence & sends message. Works if keep long enough and too old to commit crime, but very $ RETRIBUTIVIST (offender deserves it/backward looking) Punish as much as deserves. Serious crimes =serious punishment. [some assoc DP w/R] Humans have free will and justly blamed when choose violate societys mores Care a/b past behavior, what offender did, seriousness of crime. Moral desert is sufficient reason and only necessary reason to punish. Dont have to punish just to reduce crime. May be others, like crime prevention. Society has duty to punish. Some hold that wrongdoer has right be punished-pay debt. Not focused on future of society as whole. Tells how much punishment due and to put ceiling/floor on type of punishment due under utilitarian theories Types assaultive (morally right hate criminals/hurt them back), protective (secure moral balance/encourage self-restraint/pay debt), victim vindication (right a wrong) MAIN DIFFERENCES: 3

(1) U forward looking, only care about past extent predict future. Must produce social benefit. R look backward and justify punishment solely voluntary commission of crime. (2) U see people rational. R focus on free will and choice, so blamed when choose violate

CRITICISM of EACH: Of U: deterrence uses person as means to end. U justify punishment of innocent as long as deters future crime. Critics doubt rehabilitation works. Of R: shouldnt inflict pain if no benefit. Society should reduce overall suffering. Glorifies anger/hatred/revenge (assaultative) Founded on emotions, such as anger. HYBRID SYSTEM EXISTS Hybrid of BOTH. How and whether deserve to be punished (R), but what message send to rest of society (U)? They place limits on ec. other. Judges have diff sentencing options Denunciation theory: Punishment expresses societys condemnation. Educative. And focus on future like U. But moral condemnation like R. STATUTES/GENERAL CRIM LAW STUFF 3 ?s: whether criminal act occurred? Accused is guilty? Should punish? Statutory system cant punish if no statute. Blended w/CL and penal codes All 50 states & fed gvt have crim codes. Vague so judges interpret statutes. Courts may NOT overrule statutes except on constitutional grounds (US/ state) Statute tells you what Prosecutor has to do to prove case. ACT + MENTAL STATE = CRIME Crim law involves PUBLIC law. Crime causes SOCIAL harm. Crime involves societal condemnation and stigma Classifications: o English CL, divided felonies & misdemeanors. All felonies punishable by death o Modern day: felonies divided into degrees. MPC: Created b/c state statutes were mess. Used mix of old English CL terms and other states language. 1950s tried write criminal code with single definition and consistency. No state adopted in entirety. One size fits all, so states wanted own special version of certain crimes so only adopted sections. It did spur state legislatures to clean up their own codes. Not Fed Gvt, still a mess. Constitution: Must defer to it. Due Process, Jury Trial, Equal Protection Reasonable doubt: Prosecution must prove EVERY element beyond RD True defense: Proven every element beyond RD but not guilty b/c of X Defense: differs depending on JD. But usually just preponderance not RD Overturning cases: o Evidence at trial insufficient. Cant be re-trial is AC believed at time committed, was not a crime or fi statute unconstitutional. o Prosecutor didnt prove element. Can be re-trial is prosecutor didnt allege certain element of crime. o Jury given wrong instructions. Maj of cases. New trial unless AC believes as MoL properly instructed jury can only reach 1 conclusion Brothel Boy: How deal with D who didnt understand what he did but did something abhorrent like raped virgin. Boy only knows brothel life where sex ok if paid. Mentally ill (mens rea for crime?) Villagers want hang. Moral v Legally wrong. What best punishmenteducation, prison? Deterrence by punishing? 4

Criminal Procedural Information: Most cases dont go to trial or result written opinions Prosecution must prove every element BRD o BRY: subjective state of near certitude. Hard quantify JDs differ but for defense, usually D just proves preponderance Grounds overturning these cases: (1) Evidence at trial insufficient to convict particular D=no re-trial. No re-trial b/c double jeopardy. If AC says conviction has to be overturned b/c at time act committed was not a crime. No re-trial. Same if statute found unconstitutional or statute doesnt cover what person did. [best for D] (2) Prosecutor didnt prove an element required in Statute=re-trial. Ex burglary crime different categories whether break into during day/night or house/business. What if prosecutor didnt allege certain element of the crime. YES can re-trial b/c havent actually gone through trial on every element of the crime. (3) Jury given wrong instructions=usually re-trial. Large number of cases. Generally new trial unless AC believes that even a properly instructed jury can only come to 1 conclusion. Could go other way but a lot more dicey - reasonable jury would have had to convict. North Carolina Notes Hasnt adopted MPC, uses lots of CL lingo w/mens rea

Reasonable Person
The reasonable person is generally defined as what a reasonable person in the same or similar circumstance would do. Courts will take into account some physical characteristics when deciding customized reasonable person standards but is very hesitant to change the definition of a reasonable person based on mental differences

LEGALITY Statutory Interpretation

no crime without law, no punishment without law Cant punish unless defined as crime before engaged in that activity. Immoral Crime State legislature and Congress define crime. Municipalities may have ordinances. Balance: Statutes cant be too specific b/c people let off on technicality. Cant be too vague b/c then depends on discretion of police/judges and must give warning 1st and principal US legal doctrine. Might mean let go for terrible thing, but too imp Make sure to identify if the statute is GENERAL INTENT, SPECIFIC INTENT, or SL Principles of Legality: (1) Understandable to reasonable law-abiding persons [assuming individ. consult law] (2) Not delegate basic policy matters to police, judges, juries on ad hoc basis/subj basis (3) CL Lenity Doctrine - Judge interpretation of ambiguous statute biased in favor D o MPC does not have this, if ambiguous, shall be construed to further the purpose of the code. Cases Reception Statute if crime not in statute but CL crime, then stands. In practice, CL prosecution rare b/c statutes supersede and prohibit similar conduct. Penn had this statute in Mochan so use CL find guilty. 5

o Most JD have abolished CL crimes. D only convicted if in statute. Keeler (1970): statue interpretation of fetus have to use CL definition o F: Keeler kicks ex-wifes stomach and kills fetus. o R: To be charged w/murder of fetus-court must interpret if fetus a human being under murder statute. Cali no reception statute. Calis first penal code 1850, and court has to look at CL to figure out terms definitions. CL born alive rule that must be born to be murder. [so if fetus born then died, would be murder] o H: No murder. Court reasons using fair notice/fair warning aspect of DP. o Dissent: Makes analogy to elderly & corpse that people previously considered dead may not be when hearts & lungs functioning. line not constant since 1850, & judges use scientific/medical discoveries to determine end of life. Why not when life begins? Dont have problem defining vehicle to SUV - in 1850 horse. o Doesnt work b/c know old person alive. Court wont make leap. Not their role to define when life begins sensitive topic. Vagrancy statutes: Legality raised most. Get people off street and from congregating regardless doing anything wrong. Problem in Chicago. Good intention but not specific enough. Statute said cant stand on in public area w/ no apparent purpose H: Unconstitutional b/c no fair notice and arbitrary dont know where areas are. Absolute discretion to police. Arbitrary enforcement. How far go to disperse? What is apparent? Well-intended legislative bodies draft provisions too vague and lack constitutional analysis. Court takes cases seriously out of concern innocent ppl. CRIME = ACTUS REUS (phys/ext.) + MENTAL STATE (mental/internal) + Result (and Causation) + Attendant Circumstances Concurrence of the elements Actus Reus and Mens Rea must occur at the same time

All Elements Of A Crime: (1) Voluntary Act, (2) Social Harm, (3) Mens Rea, (4) Actual Causation, (5) Proximate Causation Omission to act: almost never responsible for a failure to act except in 5 situations: (1) Statutory duty to act (like paying taxes) (2) CL recognized status relations (parent to child, spouse to spouse, employer to employee) (3) A person who contracts to protect another (4) When a person creates a risk of harm and then fails to do something to diminish the risk (5) When the D acts with no duty to act but then stops and makes matters worse for the victim by ceasing his actions, a duty exists.

UNKNOWN MENS REA IN STATUTE

Steps to break down a statute Write out all elements of the crime Determine if they are conduct, result, or AC Assign the proper mental state to each element When the statute is SILENT on MR for an element of a crime, go to 2.02(1),(4), and (3)

o Step 1: 2.02(4): if an MR has been assigned to one element but not to others, assign the same MR to all elements UNLESS there is a clear legislative intent not to do so Grammatical queues to legislatures intent (middle of sentence, etc.) o Step 2: 2.02(3): if there is clear legislative intent not to assign MR to all elements of a crime, plug in purpose, knowledge, or recklessness for the unassigned elements. ALWAYS RUN THRU BOTH SCENARIOS FOR STATUTORY CONSTRUCTION Look to concurrence of the elements all MR and conduct must be happening at the same time MPC disfavors negligence; criminal liability should be higher than neg o Fed law is not governed by MPC like above Fed law uses a flexible standard in deciding how much culpability to expect for each crime (like Morissette which required a higher culp for severe punishment crimes, crimes requiring act rather than omission, and actual harm over risk)

ACTUS REUS
Do/fail to do something that have legal duty to do. Usually affirmative, can be omission. (1) Voluntary act (2) causes (3) social harm. Proctor You cannot criminalize what you plan to do in the future. NO CRIMINAL LIABILITY WITHOUT A CRIMINAL ACT o We dont want to punish innocent actors o How do you PROVE the actor was going to commit the crime? (1) Act is bodily movement, physical not internal. Act not result of conduct. Voluntary has narrow meaning. Willed act. Used mind to do act. Not just brain (involuntary) Voluntary Act is a willed muscular contraction. o Retrib more useful: dont deserve punish if not free will/choice. o Prosecution must prove voluntary act beyond reasonable doubt o Why not hold accountable involuntary? Util: Law cant deter involuntary. (3) Social harm: Some conduct might not cause injury. I.e. drunk driving. But U future risk of harm is enough reason punish. But if harm is endangering people, then is harm Result crimes: Ex. Murder. Doesnt tell you what act lead-gun, knife, but result criminal Conduct crimes: Ex. drive drunk. Focus on conduct might not lead bad result. Risky & take chances with other peoples lives = harm. (not tangible as result harm injry/dath) Can be BOTH conduct & result (Ex. Burglary/Arson). [Relevant for AL (using 2.06(4)) Time Framing: Can make all difference. Did D set entire chain of events off? Most courts take NARROW time frame but can stretch out. o Also if looking for voluntary act-might depend on the time. Courts should focus on relevant conduct (conduct w/requisite mens rea) o People v Decina: Epileptic drives and kills 4. Narrow: involuntary when lost control. Broad: voluntarily chose to drive and knew susceptible.

MPC 2.01(1) No person may be convicted crime in absence conduct that indicates voluntary act or omission to perform act of which physically capable 1.12(1) Act=bodily movement whether voluntary or involuntary 2.01(1) Involuntary movements=reflex, sleep, convulsions, unconsciousness, hypnosis. o Note habitual or conscious conduct is voluntary. Courts no sympathy o Hypnotism controversial. Dressler-p91/101: better see it as voluntary & use excuses to defend 2.01(4) Possession is act if knowingly obtained or knew in control for enough time to terminate possession 2.05(1): rqmnts of 2.01 dont apply to violations b/c drafters felt with extremely minor offenses, litigation of involuntary-act claims shouldnt undermine law enforce. Cases Martin v State, Al., 1944: D at home, arrested, brought into highway by police and charged with being drunk/profane on public highway. Court said must be voluntarily and D forcibly brought there. Policy concern that police create crime that didnt exist (sounds like entrapment). Not guilty. Involuntary evidence: harder to convince judge let in b/c relevant CRIMINAL OMISSION: General rule: no criminal law duty act to prevent harm of another, even if may lose life in absence of assistance only few exceptions o Policy behind: inherently more ambiguous. Harder determine motive/culp. If accused of omission must have been possible for person to have committed that act. Must be a LEGAL duty, not MORAL. Many find rule morally repugnant. But practically case backlog, where draw line? Leads to proof of mens rea & causation difficulties. People v Beardsley, 1907: D drinking w/V when she took pills & became unconscious. Gave to neighbor & she died. D responsible? Moral-maybe. But legally, high threshold to convict someone of manslaughter for lack of responsibility. Even if bad outcome cant hold legally responsible unless legal duty. No duty. Similar Genovese (attack in NY). Universe of duties must act when: Commission by omission Status Relationship: Legal relationship of protector, parent/child and H&W o Ex: mother leaves child w/father knows abusing, guilty child abuse In Custody or Care of Vulnerable Person Voluntary Assumption of Care & Seclusion of Victim o Even if didnt have initial responsibility to aid. Makes matters worse If Created Harm: could rise even if non-culpable of rick created o Debate whether someone that justifiably shoots in SD, has duty aid Agreed to in a Contractual Obligation o Ex. Agreed house/feed/care stranger, diseased parent, babysitter, doc Statute on Point/Duty (Bad Samaritan Laws) o In accident, must stop. Parents must provide food/shelter. o Bad Samaritan laws controversial. In some JDs. Joint Risky Undertaking Mountain climbing, exploring caves, etc. - DRUGS/ALCOHOL USE DO NOT COUNT CL approach legal duty What is the relationship between the victim and accused? 8

MPC Liability for omission (similar CL) 220.1(3) if law defining offense provides for it (ex. failure control/report fire) 2.01(3)(b) duty to act otherwise imposed by law o Note MPC doesnt give categories or rules or what relationships. Incorporates most CL categories. CL approach probably most fair. o 4 CL categories: (1) if imposed by statute; (2) if it arises from a status relationship; (3) if agreed to by contract; or (4) if voluntarily assumed. Notes CL and MPC: just b/c person in danger and COULD do something duty Sometimes hard distinguish omission/voluntary act: doc turning off respirator (p109) Exs: Lifeguard (contractual duty). Babysitter (not familiar, maybe K?). Cousin (probably notunless raising kid). Close friend (no). Stranger pushed child in pool (Yes, caused peril) Attendant Circumstances Other special factors that must exist for crime to occur. Not conduct itself. Social harm hasnt occurred w/o these circumstances. Ex. One or more person is AC that has to be present for statute a/b drunk in public Extra things must be proven for violation of statute to occur, things D cant control and might not know they exist. Ex: Burglary statute: breaking entering dwelling another at night w/intent commit Fel o AC= Dwelling, someone elses house, at night (all must be present) o Conduct=break/entering o Mens rea=intent POSSESSION Having control is enough to convict US v Maldonado- Ds power to exercise control over cocaine rendered him guilty MPC 2.01(4) Possession is an act if the possessor knowingly procured/received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession. Constructive possession 1. Effective power over the thing possessed and 2. The intention to control it HARM A bad intent can only be punished if it is connected to inherently unlawful conduct or demonstrable harm. Usually not an issue. Actual/Potential harm (driving without a license = potential for social harm) USC Concerns range of harm is not infinite 1A protections, etc. Lawrence v TX gay sex is not a social harm criminal statute is unconstitutional. Courts will step in and set the contours of what types of harm we want to minimalize. VOLUNTARINESS D cannot be convicted unless he committed a VOLUNTARY act. People v Newton D brought gun onto plane legally, which made an unexpected landing in NY, where having a gun on a plane is a felony. 9

o D is NOT GUILTY bringing a gun on a plane in NY was NOT voluntary. Questions of voluntariness come down to how you FRAME the crime. Newton VOLUNTARILY brought the gun onto the plane (broad time frame-guilty) But, he did NOT VOLUNTARILY bring the gun into NY (narrow time frame- NG) The majority of courts look at a NARROW time frame Martin v State Cops brought drunken guy onto hwy, arrested for being drunk on a hwy. Being on highway was NOT voluntary. MPC 2.01 must be voluntary. MPCs involuntary acts : reflex/convulsion, unconscious/sleep movements, hypnosis, any movement otherwise not a product of the effort/determination of the actor Key question Can D control their own actions? Usually goes to a jury. STATUS You can have to DO something before you can be held culpable You cannot be convicted for your PROPENSITY to commit a crime. (Cant be punished for being an alcoholic/addict) Robinson v CA criminalizing the status of being a drug user is unconstitutional. LEGALITY/SPECIFICITY A criminal prohibition must be clear enough that it tells you what you can/cannot do. D must have NOTICE of the crime Statutory prohibition must be defined in advance Common law crimes can get absorbed when states adopt the MPC/other penal code o Reception Statutes Statute must be sufficiently SPECIFIC to put the D on notice as to what conduct is prohibited o Vagrancy, begging statutes pose problems what exactly is not allowed? o Chicago v Morales loitering with a criminal purpose is criminalized WTF does this mean? Too unspecific.

MENS REA: Guilty Mind

The term mens rea can be interpreted in 2 different ways: 1. A guilty mind (a morally blameworthy state of mind) 2. A particular state of mind (a specific state of mind set in the definition of the crime)(this is the more common definition of mens rea) Actus Reus + Mens Rea + AC + Causation + Result = CRIME.

Intent requirement for each element that Prosecutor has to prove EACH element be beyond RD to be guilty. High threshold.

Policies Utilitarian: to deter must appreciate punishment. People act rational and think about consequences Retributive: morally unjust punish accident, rather than by choice cause injury 2 meanings of mens rea developed: Culpability approach: Older analysis. General. Dont care what did, just that acted wickedly and morally blameworthy. Dont have specific intent level. 10

Elemental approach: Modern, MPC. Specific requirements exactly what mental state must be. Intentional, reckless, negligence etc. Forces jury to answer specific questions based on evidence of trialD prefers. Legislature tend drafts statute more specifically MPC v CL Lingo: MPC uses precise definitions. JDs vary with CL lingo malicious willful. Intent had broader CL meaning: (1) desire/conscious object cause harm or (2) acts w/knowledge that social harm is virtually certain occur as result conduct Motive: Some argue not relevant. But might be relevant specific intent. Ex. CL larcenytaking persons property with intent steal this has to do w/actors motive. Also relevant for defense and for sentencing. REGULATORY STATUTES DO NOT NEED MENS REA high risk of widespread harm to a large group of people. Public benefit outweighs potential harm to D.

Transferred Intent Attribute liability to D who, intending kill 1 person, accidentally kills other. Justified on necessity and proportionality. Easy case when: D intends cause specific harm just one specific individual, B; B escapes unscathed; victim C suffers harm meant for B Argument against: Might not need to use TI, for ex, statute says cause harm to a person doesnt matter if it wasnt who meant. Gets tricky when transfer b/t 2 different types of crime/types of social harms. o Ex. Intend throw rock at person, hit property (intent battery prop damage) Transferred intent applies to RESULTS not to conduct MPC version of Transferred Intent 2.03(2)(a) Specific & General Intent (Not as important today. Court use different ways) Specific v general intent might still matter ONLY in CL (dont talk about it in MPC). It matters for some defenses, mistakes & attempt. Old distinction: Line used to be when general just blameworthy mind and specific emphasized expressly required proof of particular state of mind Today: Specific when have to prove general intent to act (i.e. assault) and something on top (i.e. assault with intent to rape). More than a just general harm extra layer o Ex. Specific Intent: CL burglary: B&E dwelling of another at night w/intent commit felony. Actus reus of offense complete when offender B-E. But mens rea pertains future act (commission felony) Ex. CL larceny: Trespassory taking/carrying away of personal property w/intent permanently deprive. So must have specific intent permanent Ex. Receiving stolen property with knowledge its stolen. Ex. Most murders. Specific result is MURDER o Ex. General: Battery (intent apply unlawful force) Assault, Rape. Focus conduct Another distinction b/t specific/general: o Purpose/knowledge = specific Recklessness/negligence = general Specific v General and ATTEMPT: Attempt need to be PURPOSE. So this is where distinction b/t P & K matters. MPC 2.02 Elemental approach. Must prove every element of each material element. Sometimes offense has different level culpability for different elements. No specific/general intent distinction. Unlike CL w/tons terms, uses just 4 levels Hierarchy: 11

o If prove P, proved K/R/N. If proved R, proved N etc. o Not really logical b/c N different from other 3. Not aware. How prove N and R? o Line b/t R/N more troubling P/K P/K line = really want occur v knowing something bad will happen(subj) Material: description of harm prohibited. Defenses. (MPC 1.13) Procedural: SoL, venue, JD etc

CULPABILITY TERMS
o PURPOSE 2 definitions depending what applying to Conscious object to engage in conduct of that nature or cause result (result/conduct) Aware of existence of such AC or hopes they exists (subjective standard) o KNOWLEDGE (subjective) also 2 definitions [see 2.02(7) high probability?] Aware conduct of nature or that such ACs exist (AC/conduct) Aware practically certain conduct will cause result (results) o RECKLESSNESS (objective not just Ds state of mind like P/K) Consciously disregards substantial and unjustifiable risk. S&U risk if gross deviation from standard of conduct that law-abiding person would observe in actors situation o Subjective b/c D must be aware risk. Obj. b/c risk has to be Substantial & Unjustified. o Some risks are (like surgery). Gross deviation makes jury question. o NEGLIGENTLY Should have been aware of substantial & unjustifiable risk. S&U risk is gross deviation from reasonable person [not law-abiding person] o Fail appreciate risk but should have been aware. Not tort law which is any deviation, must be gross. B/c crim is stigma and prison so higher bar o R actor consciously disregards risk, N actors risk-taking inadvertent o R uses law-abiding person and N uses reasonable person o Reasonable person evaluated from perspective person in actors situation. Physical characteristics included. Not hereditary or matters of intelligence/temperament. Courts debate. MPC RULE WHEN NO MENTAL STATE SPECIFIED IN STATUTE: 2.02(1): Prosecution must prove 1 of 4 mental states with regards to EACH of the material elements of the crime 2.02(4): If statute doesnt give mens rea for each element but if there is ONE mens rea then apply that to EACH element UNLESS a contrary purpose appears. o If single mens rea it will modify each actus reus offense, unless legislature had clear contrary purpose o Look at grammar where in statute definition is that mens rea. Ex. FI knowingly restrain another unlawfully would mean knowingly restrain victim and knew restraint unlawful Ex. Burglary: enter unoccupied structure w/purpose commit crime purpose in middle, demonstrates intention not require purpose to preceding phrase 2.02(3) If still have blank, can prove, at minimum, P/K & R. NEVER insert N. o Burglary ex above. Enter unoccupied structure has 2 material elements: (1) enter (conduct) & (2) unoccupied structure (AC). Prosecutor must prove did these 2 elements P/K/R plus had purpose commit crime. If two mens rea and 1 blank default to minimum if cant apply 2.02(4)

12

MPC v CL: makes difference what mens rea apply. If apply K under MPC rules would have different result thaN CL if didnt apply & he didnt have to know fake. o Same with drug statutes which say knowingly possess and x amount do have to K the amount? If MPC would use K and would be D friendly b/c could argue hard to know exact amount of drug. If CL and dont have to know-guilty MPC Approach 2.02 (definitions used by many jurisdictions)

MPC Mens Rea Definitions

(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) Kinds of Culpability Defined a. Purposely intent if the element involves the nature of the actors conduct or a result thereof, and it is the actors conscious object to engage in conduct of that nature or to cause such a result and If the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist b. Knowingly CONDUCT CRIME: If the element involves the nature of his conduct or the attendant circumstances he is aware that his conduct is of that nature or that such circumstances exist and RESULT CRIME: if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result. Ex: Machine gun into crowded bar practically certain will kill someone, throwing a stick of dynamite into a group of people c. Reckless- he consciously disregards a substantial and unjustified risk that the material element exists or will result from his conduct. a. Risk that is a gross deviation from a standard of conduct that a law-abiding person would observe in the actors situation b. Drive by bar, dont know if anyone inside, shoot machine gun inside; setting fire to a bar What is justifiable risk? Self-defense, surgeon d. Negligence (More severe than civil negligence) He should be aware of a substantial and unjustified risk that the material element exists or will result from his conduct Attendant Circumstances- Aware of its existence or believes/hopes it exists. **Purposefully and knowingly are typically grouped together. (3) If statute is not clear on what mens rea applies to each element, courts have to look at legislative intent (statutory construction). If law doesnt set mens rea at all, element is shown if person acts purposefully, knowingly, or recklessly Recklessness is the minimum that must be proven (Recklessness is not sufficient for culpability) (4) Culpability applies to all material elements When the law prescribes a culpability that is sufficient for the commission of an offense, without distinguishing among the material elements, the culpability applies to all the material elements of the offense, unless a contrary purpose plainly appears. 13

(5) If law defines type of mens rea required, State can establish it by proving any kind of culpability above it. (7) Knowledge under the MPC is may be satisfied by an awareness of a high probability of facts existence, unless they honestly believe that something does not exist. (8) Wilfulness may also be satisfied by acting knowingly, unless purpose to impose further reqmts. appears. Can willful blindness regarding an attendant circumstance constitute knowledge? o State v. Nations: Statute prohibited endangering the welfare of a child. Bar owner claims to be unaware girl stripping was under 17. State requires knowledge here. Court says D acted recklessly at most, but not knowingly because legislature didnt adopt MPCs definition of knowledge. o Some states equate Willful Blindness to knowledge (Purposely avoiding facts so you dont know) o 2 questions to ask: (1) what do you have to instruct jury, (2) what inferences can jury draw from evidence o Willful Blindness Instruction- jury can find had knowledge and is guilty if was aware of high risk of harm and deliberately decided to avoid finding out.

STRICT LIABILITY [MPC 2.02(5)/2.13]

Strict Liability Crimes imposed despite absence of culpable mental state SL not favored by criminal law. If SL D has NO defense. Dont talk about SL w/MPC!! o Retributivist: no mens rea so no culpability if never entered mind o Utilitarian: Deterrence effect but if no mens rea, no thought process so not rational person. Usually support SL found in U grounds. Might be unfair but penalties for SL crimes are generally light & deter dangerous conduct. Might deter b/c wont risk getting involved, & less backlog in courts o Alternatives? Court require R and set higher penalties to deter. Or low penalties & low level mens rea. Or allow lack mens rea as affirm defense SC held might overcome presumption against SL when: (1) crime not from CL (2) evident legislative policy undermined if mens rea required (3) standard by statute is reasonable & properly expected (4) penalty small (5) conviction not gravely besmirch but not systematic approach. Difficult predict when court will allow SL statute
If law doesnt specify offense as strict liability question of statutory construction: 1) Legislative History 2) Severity of punishment 3) Other parts of statute

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4) Inherently dangerous activity? 5) Is there a way for D to avoid liability? 6) Is it part of a comprehensive regulatory scheme that is made to protect the public, not individuals, from harm? a. Pure foods, traffic offense- strict liability 7) The higher the penalty allowed, the more reluctant courts are to assume, noting else appearing, that statutes are strict liability a. Long prison sentence factors against strict liability, but its still possible That a statute doesnt specify a mens rea doesnt mean one is not required Presumption that mens rea required for conviction of crime

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More open to SL when strictly regulatory, public welfare offense, & malum prohibitum Male in se=mens rea requirement: Homicide, rape, arson, robbery, theft-traditional CL crimes. Wicked in themselves so need to prove mens rea, long prison sentences. **Malum Prohibitum=Strict Liability: Wrong b/c prohibited. Newer crimes, Ex. speeding requirements, illegal & bad but nothing inherently immoral but just b/c statute made bad. SL focus on these crimes. Generally are public welfare offenses Public Welfare Offenses: SL applied when want to deter someone before act. Ex. Food & drug distribution, environment, traffic violations - dont have problem with Some non-public welfare offenses characterized as SL: statutory rape. Dont need prove knew victim underage (AC). Non-public, unlike public, carry stiff penalties & malum in se so stigmatized despite absence proven moral fault CASES Staples v US, 1994: D had weapon, Statute required automatic firearms registered. had semi civilian version, but had parts that made it auto. Claimed didnt fire auto. o Material: possess (act), gun (AC), unregistered (result/omission) o Apply: No mens rea, so SL, and doesnt matter if knew automatic. Court holds legislature didnt intend SL. Gvt argued public welfare crime but Court says traditionally those had light, financial penalties. Congress in this statute had 2-year prison so not intend punish innocent gun owner if didnt know automatic. o Dissent: Owness on owner of dangerous instrument. Morissette: D went onto US property, collected casings to re-sell. Strict laws ab trespassing on fed land & taking property. Statute didnt have mens rea but gvt said SL. Theft traditionally in se. No SL, Need specific intent. o MPC: 213.1, 213.6: Prohibits defense of ignorance or reasonable mistake of age when victim below 10. [NO DEFENSE SL NO MISTAKE, GOOD FAITH etc.] MPC: Tried get rid of SL. 2.02(1) Every element need mens rea. Sole exception: 2.02(5): SL only if a violation (violation: punished financial & not w/prison/probation)

MISTAKE OF FACT [MPC2.04]

Ignorance or mistake as to a matter of FACT is ordinarily NOT a defense in the sense that it invokes a defense doctrine unrelated to the elements of the charged offense. It will, however, sometimes prevent liability if it shows that the defendant lacked a mental state essential to the crime charged. o Mistake is not a DEFENSE it is a way to escape liability by poking holes in the prosecutions case you cant prove mens rea due to my mistake o Ex. D1, hunter, shoots and kills V1, believing killing deer. D2 has nonconsensual sex w/V2 believing consented. D3 carries away property belonging V3, thinking has permission take. D4 drives above speed b/c speedometer broken o In each case caused prescribed social harm, but unaware/mistake ab fact pertaining to element of offense. D1 didnt know shooting human, but death human element of murder. D2 thought consented, negating lack consent element of rape; d3 thought had right take property, didnt intend steal; D4 didnt know driving above limit, actus reus of offense. Retributivist: How can punishment be justified if D really thinks innocent & all its all moral culpability? Utilitarian: If D is held responsible we are demanding more careful & increases safety for everyone. If really in good faith really deterring by punishing? 16

Why exculpate? What makes persons mistake involuntary has to do w/cognition rather than volition so goes to mens rea. Not defense - negates mens rea.

CL approach to Mistake of Fact (more complicated than the MPC): When deciding if a mistake of fact is a defense, must first determine what type of crime has been committed: Strict Liability, Specific Intent, or General Intent.

TYPES OF INTENT SPECIFIC INTENT, GENERAL INTENT, STRICT LIABILITY

Strict Liability: o AT CL, mistakes are irrelevant in Strict Liability crimes. Ex. Run a red light, doesnt matter if you thought it was green, you will be guilty of the crime b/c its a strict liability crime. o A mistake of fact cannot negate a mens rea requirement in a SL crime b/c there is no mens rea requirement to negate! Specific Intent: o At CL, in Specific Intent crimes you must prove it was Ds goal to produce crime o Specific Intent crimes require some proof of a specific state of mind that goes beyond simply intending to cause the social harm set out in the definition of the crime Ex. Burglary breaking and entering the dwelling house of another at night with the intent to commit a felony inside. The actus reus of Burglary is complete the moment a person breaks and enters anothers home at night. But to be guilty of the crime of burglary, the person must have a particular intention that goes beyond the breaking and entering the intention to commit a felony inside the house. The burgler DOES NOT have to commit the actual felony inside, he just needs that intention. o a mistake negating your mens rea can completely exculpate D b/c a mistake negates specific intent o The mistake must actually negate the mens rea and not just be a mistake of fact that doesnt affect the mens rea o Remember that historically CL crimes just had to prove actus reus and a little later in history, needed to also be morally blameworthy. A few crimes required specificintent. o An unreasonable mistake of fact CAN serve as a defense in Specific Intent crimes BUT unreasonable mistake of fact CANNOT serve as a defense in a General Intent Crime..IMPORTANT DIFFERENCE o 3 Types of Specific Intent Crimes 1. Statute requires a specific Intent 2. Statute requires a specific motive a. Ex. Larceny requires actor to permanently deprive owner of propertynot simply borrow the property 3. Statute requires knowledge of some very specific factual circumstance a. Ex. Receiving stolen prop w/ knowledge it was stolen General Intent: o At CL for General Intent, remember that the D must commit the actus reas of the crime with a morally culpable state of mind. o Was the Ds mistake a culpable/blameworthy mistake? 17

o The D will be acquitted of General Intent crime if but only if his mistake of fact was a reasonable mistake of fact. A reasonable mistake of fact is a non-culpable mistake and thus negates the mens rea. ***Sometimes CL courts will find moral culpability EVEN IF the D has acted on the basis of a reasonable mistake of fact Sometimes CL courts will apply the moral wrong doctrine Regina v. Prince D really believed 13 year old girl was 18 years old AND the jury concluded that mistake was a reasonable mistake of fact. The crime for which the D was charged was taking away any unmarried girl under the age of 16 out of the possession of her father. Prince committed the actus reus required of the crime but under the CL he committed the crime in a morally blameless manner b/c of the reasonable mistake of fact, however, the court affirmed Ds conviction by applying the moral wrong doctrine. Moral Wrong Doctrine looks at the facts through the eyes of the defendant and then asks was the Ds act a morally wrongful act? (not necessarily an illegal act) Because the D committed the morally wrongful act of taking away the 13 yr old girl from her father, he has mens rea and is guilty of the crime under the moral wrong doctrine. Moral Wrong doctrine is controversial and rarely used and is only for CL not MPC Specific Intent when a statute requires that D must have a particular intention the crime is a specific intent crime (some defenses are only available if the crime is a specific intent crime) requires a particular state of mind that goes beyond intending to cause the social harm set out in the crime a mistake negating your mens rea can completely exculpate D (mistake negates specific intent)] There are really 3 types of specific intent crimes: 1. Statute that requires the intention of committing some act that goes beyond the actus reus of the crime. (eg. Burglary) 2. Statute that requires a specific motive. (eg. Larceny) 3. Statute that requires knowledge by the actor of some very specific factual circumstance. (eg. Receiving stolen property with the knowledge that it was stolen) o People v Navarro, 1979- specific mistake case: D charged w/CL larceny, specificintent crime. Wants jury to be told mistake reasonable when took property. Court classifies under male in se (theft traditional crime). Court holds doesnt matter whether reasonable as long as in good faith intent element not met. Specific intent to steal if honestly believed abandoned whether reasonable or not - dont have specific intent. o Rule: If mistake of fact negates specific intent part offense, not guilty Navarro Doesnt matter if mistake R, N. Didnt prove mental element BUT if mistake of fact not related to mental element, then doesnt negate specific intent o Ex. D obtains heroin thinking cocaine & prosecuted knowingly receiving controlled substance (specific intent b/c requires proof actor aware AC of controlled substance). Still prosecuted b/c error doesnt go to specific intent. Still controlled substance mistake just about nature drug.

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General intent a statute that does require a mens rea but does not have a specific mens rea listed in the statute (as the specific intent crimes do) then the statute is a general intent crime. your mistake must negate your WRONGFULNESS. Your mistake must be reasonable. If in good faith, you believe what you are doing ISN'T BAD (and it's a reasonable belief), you may be off the hook. More difficult use. Did mistake negate moral culpability? Culpability approach. Ex. assault hard make mistake that negates culp. when point gun or hit o Since today most crimes have mens rea then makes sense apply elemental approach with all non-SL crimes, but some courts still use distinction based on whether crime characterized as general/specific o General rule: Not guilty if general intent crime if mistake reasonable, guilty if mistake unreasonable. Mistake has to be reasonable and good faith

Requirement of Reasonableness (CL rule): A mistake of fact must be reasonable, a reasonable person would have made the same mistake under the circumstances. Moral Wrong: even if an actors mistake of fact is reasonable, his intentional commission of an immoral act serves as the requisite blameworthiness to justify his conviction. o Ex. Navarro: If a judge believed it was still morally wrong take abandoned items, then hed still be liable. o Regina Even though you thought the girl was 18, taking her from her Dad regardless makes you a bad person - liable o Criticism: permits conviction who didnt know and had no reason know violating law. Also fair punish person unintentionally committing actus reus, if he intentionally committed immoral act. How determines immorality? Legal Wrong: (CL) If the Ds conduct, based on the facts as he believes them to be, constitute a crime not simply a immorality, he may be convicted of the more serious offense of which he is factually guilty. In modern law & MPC, will hold guilty of lesser crime & not higher o Ex: D committed indecent acts on minor under 16. General-intent crime X. D reasonably believed victim older. Had been older, would be crime Y. So D committed actus reus crime w/mens rea crime Y. Still hold guilty more serious X o Criticism: ignore lacked mens rea so punishment can be disproportionate Regina v Prince (1875): D accused taking unmarried girl out of parents house w/o consent. Thought 18 not 14. If apply doctrine, different result: o Moral Wrong: 3 steps: (1) Ask whether reasonable or not. If unreasonable, convict. P reason. (2) What did D reasonably think doing taking 18 w/o permission (3) Even facts as reasonably believed, still immoral take w/o consent o Legal Wrong: If as claim, she is 18, not prohibited by statute. If lesser statute making illegal than might be crime o CL: legal doctrine applies & there was lesser statute that a crime applied, still guilty higher offense o Modern: Convict of lesser crime (MPC 204(2))

MPC: Ignorance or Mistake of Fact AND Law 2.04

(similar CL) MPC draws NO distinction between Specific and General Intent 19

Only question you need to consider is DOES THE D HAVE THE PARTICULAR MENS REA FOUND IN THE DEFINITION OF THE CRIME? Essentially you apply the CL specific intent rule to every crime under the MPC because every crime under the MPC has some specific definitional mens rea requirement. 2.02(1) need P/K/R/N as law requires with respect each material element o If mistake means no intent since every element must be proven to have mens rea cant convict. Elemental approach. Straight-forward. Mistake of fact NEED NOT BE REASONABLE as long as it NEGATES THE STATE OF MIND REQUIRED for liability. 2.04(1) Mistake is defense if it negates mental state required to establish any element of offense 2.04(2) Exception: Mistake-of-fact defense is not available if D would be guilty of another offense had the circumstances been as he supposed D can only be punished for the LESSER offense (variation of the legal-wrong doctrine)

MISTAKE OF LAW [MPC 2.02(9)]

MUCH stricter than Mistake of Fact General rule: ignorance of the law is no excuse.(US v. Baker)-watch seller Doesnt usually serve as failure-of-proof either. K/R/N as whether conduct constitutes offense, or meaning offense, is ordinarily NOT an element so no mens rea to negate Concern: Ds let off hook b/c loopholes this is how I read it Justification: Law is definite, so no reasonable mistake. Other argument-laws vague so could indefinitely disagree on meaning, so courts must determine meaning. Need obj. Dressler thinks better no-excuse rule is deter fraud. False claims that didnt know law. Generally not allowing MOL as a D encourages citizens to learn the law utilitarian. MOL not allowed when: o Acting on advice from private counsel - NOT a defense. Controversial. o Reliance on own interpretation NOT excused, even if reasonable (People v. Marrero) o This really goes against retributive theory but does follow utilitarian theory MOL is a defense in 3 situations : Reasonable reliance, fair notice and mens-rea: o Reasonable Reliance -Excused for relying on an official interpretation of law, erroneous from person w/responsibility for interpretation, administration, enforcement of law Narrow application statement of law must be contained in either a statute later declared invalid, a decision from the highest court in the jurisdiction, or a statement from a public official in charge of its application Ex: Twitchell AG said Christian Scientists couldnt get in trouble Reliance on private counsel does NOT count o Fair notice doctrine. Under certain circumstances, if it would be grossly unjust to hold a D liable for not knowing the law, a person who is unaware of a duly enacted and published statute may successfully assert a M-O-L defense Ex. Lambert: Didnt know if convicted felony & in LA had to register w/in 5 days. SC held has to be actual knowledge of duty to register or probability of such knowledge. Atypical. Also omission. More legality 20

Ex. Or accused of kidnapping when told by officer could restrain person (Weiss). He truly believed had authority so helps negate mens rea SC 3 Factors of a statute that may allow a M-O-L defense: Statute punishes an omission The duty to act is imposed on the basis of a statuts The offense is a malum prohobitum

o Different Law Mistake: Allowed sometimes if D lacks knowledge about different/another type of law. Ex. D arrested for bigamy, but believed that his divorce had gone through; D2 is arrested for rape, but claims the lady is his wife (no rape) he doesnt know his marriage license is invalid, D3 doesnt pay a high mechanic bill, and then just goes and takes her car (not realizing a state law made the car technically the mechanics) Specific intent different-law mistake defense if negates mens rea Ex. D3 doesnt have the specific intent for larceny (doesnt want to deprive someone else of their property she thinks the car is HERS!) Cheek v. US Man doesnt think his income counts as taxable wages, so he doesnt pay for 6 years. Charged with intentionally violating a known duty his mistake of law should go to the jury, says SC, because his mistake (if believed) would negate mens rea b/c the mens rea in the statute was known legal duty) General intent not defense (different than MoF approach) Ex. D charged rape w/V, believed legally wife but marriage invalid still guilty. SL intentnot defense. SL no mens rea to negate. Ex. D prosecuted bigamy, believed legally valid divorce o Legality situations might help. Ex. provision left out in printing. Statute has to be in existence before act. Once exist, dont give pass b/c didnt read it MPC basically codified CL limited situations when MOL is recognized 2.02(9): Mens rea existence of law NOT element of defense unless crime defined & statute says something a/b a mens rea requiring D to know of the law. o Most statutes silent & assume know what law says o If mistake negates mens rea attached to element of crime, mistake prevent prosecution proving element beyond RD If mistake goes to issue of whether law applies or whether knew was a law, only way help 2.04(3)(b): Ds belief that action is lawful is a defense if (1) relies on an official statement of law (2) found in a statute/decision/official interpretation/etc. and (3) the reliance is otherwise reasonable. Doesnt not recognize advice from a private lawyer 2.04(3)(a): Fair notice. D not guilty if doesnt believe conduct illegal & the statute defining the offense is (1) not known to her and (2) not published or reasonably made available o Different b/c in Lambert statute was published and available, just not alerted o Notice of law does not mean personally just could get notice if tried 2.04(1): Mens Rea negation - MOL is a defense if it negates a material element of the offense or if the law expressly provides for a MOL defense. Relates generally to different law mistakes treated like a mistake-of-fact. CASES 21

Bray: D plead guilty to crime but didnt know if misdemeanor or felony. Moved to Kansas from Cali. Even Cali didnt know and accused lying on gun permit app. Prosecution has to prove felon and takes months figure out he was. Mistake ab whether felon or not. Mistake ab ANOTHER type of law (Kansas) and doesnt give you knowledge on AC (felon or not) under crim statute about being prosecuted again. If negates mens rea relevant.

CAUSATION [MPC 2.03]

If a crime requires proof of a result, the prosecution must prove that the defendants conduct was the legal cause of that result. The necessary causation is of two types: factual causation and proximate causation. Both must be proven before liability is imposed. Causation, whether factual of proximate, may be direct of it may instead cause the particular result by means of other intervening causes. Basic question Who should be held responsible for the crime? Causal link between the Ds action and the result (social harm) Justification: o Retributive concept of just desert. Personal responsibility, not like tort and VL. o Utilitarian doesnt explain very well (why should someone who acted immorally get a lesser sentence just because he didnt actually CAUSE the harm?) Omissions: General Rule: DO NOT establish causation ACTUAL CAUSE BUT FOR TEST But for Ds voluntary act(s), would the social harm/result have occurred when it did? o D can be a but-for cause of harm but lack mens rea o D can have the requisite mens rea but lack the but-for cause of the harm Works to EXLUDE possible Ds determines who the possible universe of Ds are Multiple actual causes o If D accelerates a result, they are a but for cause (But for their actions, V would not have died when he did) o Remember question is always NARROW Would the harm have occurred in the same manner at the same time as it did? Concurrent Sufficient causes o 2 acts independently are sufficient to cause the death (shot in head and heart) change the test to the SUBSTANTIAL FACTOR TEST o MPC 2.03(1) much cleaner but-for test SUBSTANTIAL FACTOR TEST When 2+ causing harm, especially simultaneously use substantial factor test o Was each persons conduct substantial factor bringing about result, at this moment and in this way? o Remember key part test at this moment. W/o 2nd Ds action V would not have died when he did maybe 5 minutes later etc. Accelerating result. o Also if 2 D - not in concert- shoot V & neither would have killed, but together do kill, then satisfy causation std. b/c killed in this way

PROXIMATE CAUSE/LEGAL CAUSE intervening cause

(MPC 2.03.2b, 3b MPCs rough version of Prox Cause) Of people that meet the but-for test, who will hold legally responsibility? This is a policy decision very very few bright line rules! Question of what is just? 22

General Rule : the defendant will be regarded as the proximate cause if the result occurred as a natural and probable consequence of his act and no intervening factor sufficient to break the chain of causation affected the events. A defendant will not be relieved of liability simply because the result that he intended materialized by an unanticipated sequence of events. Intent to commit the crfime is implied, because ordinary people intend the natural and probable consequences of their actions. Cant be proximate if not actual. (not all actual are prox) If direct cause of social harm then also proximate cause. Proximate cause issues arise w/intervening forces when but-for agent comes into play after Ds voluntary act/omission or before social harm occurs. o Ex: (1) D harms V (2) another force (3) intervening force aggravates Vs injuries Intervening Forces: (1) Act of God; (2) Act independent 3rd party accelerating/ aggravating the harm; (3) Act/omission of victim assists in bringing about the outcome

- Superseding Factors CUTS OFF LIABILITY- D is not liable if there is an : 1. Intervening act (must be set in motion AFTER the Ds act cant be a pre-existing condition) 2. Act is UNFORESEEABLE (improper medical treatment is sometimes foreseeable, unless its grossly negligent) 3. It is the SOLE MAJOR CAUSE of result (if it simply combines with the effects of Ds conduct, both are concurrent proximate causes, and the chain will remain intact) When does IF supersede & D not liable? Courts use causation factors (not bright-line): (1) De minimus: too small contribution role to Vs demise, cant argue causal a. Ex: I assault you, and then you stub your toe Im still liable (2) Foreseeability of intervening force o Responsive/Depdendent a force that comes into existence as a response to the Ds conduct. Intervening cause must be reasonably foreseeable. o wont break chain. Foreseeable, so D liable Ex. If V try get away from danger. situation created by D, even if V negligent in efforts, still hold D responsible as long as not totally out-of-ordinary Ex.2. B/c of D, V goes to hospital and dies when the doctor performs medical care poorly D normally still on the hook, not the doctor. **Only time D will get off the hook is if the responsive intervening cause was more than unforeseeable but truly bizarre Ex. When V went to the doctor, the doctor strangles V. D is no longer on the hook, the doctor is. o Coincidental/Independent A cause that already existed. The D put the victim in a place where the coincidence could act on it. o usually breaks chain and relieve D Ex. B/c D, V goes to hospital & killed by knife-wielding maniac D is a but for cause of the death, however, the intervening cause is a coincidental intervening cause and thus D is not causally responsible for Vs death. D is not the proximate cause. (3) Intended Consequence Rule: Same result happens, just maybe a few unintended steps in between. Because the intended result is the same, the D is still held responsible. (Ex: D gives Nanny poison saying meds for V (her child). N puts on fridge thinking V doesnt need it & V finds in fridge drinks on ownD still on the hook) 23

(4) Apparent Safety Doctrine: when V was previously placed in danger by D but is now in a place of safety anything new happens not linked to D b/c crime was terminated. Ex. V in fight with Husband. V forced leave house freezing night, could have gone to fathers but slept outside & froze death. H not liable b/c V free immediate harm (5) Human Intervention by victim: V freely, voluntarily, deliberately makes choice. Had other safe option but made choice leading to more harm. Ex. V chose sleep in cold & dies when had house D not on hook (6) Omissions: Rarely viewed as breaking causal harm. Ex. D drives car negligently, cause death V. V didnt have seat belt. D liable Even if intervening actor has duty to act, i.e. father doesnt intervene to stop beating of child by D, D still liable and father might be liable on basis omission NOTE: victim stabbed, goes hospital, Jehova witness & refuses blood transfusion. o Intended consequences: he stabbed her & what happened as result. o Foreseeability: was it foreseeable person would make that choice? o Human intervention: independently, voluntarily made choice not get blood. o Might matter if docs said 100% save life. Or ruled like tort take victim as find. o Court said set in motion and would not break causal chain. On an exam, draw a line. At beginning of the line put the words Ds voluntary act, and at the end of the line put social harm. Then see if there are any casual events that can be placed in the middle of the line. If there are none, then there are no intervening causes. This is Direct Causation and the D is both the actual AND the proximate cause of the harm. If there is something that happened between the Ds act and the harm, it is possibly an intervening event and we must decide whether to shift the responsibility for the harm from the D to this intervening cause. If this intervening cause is the proximate cause of the harm, the D cannot be held guilty of the crime because one of the essential elements, proximate cause, is missing. MPC (just from book) 2.03(1)(a) Applies but-for rule. When concurrent sufficient causes (ie D1 and D2 independently inflict immediately-lethal wounds on V), result described as death form 2 wounds and jury decide if each party butfor cause and dont need substantial factor test Different CL: treats Prox Cause as related to actors culpability. o Did D have same level culpability P/K/R/N required by offense? D not acted w/culpability unless actual result, including how occurred, was not too remote or accidental Single Prox. Std invites jury to reach commonsense result. o In rare situation when offense no culpability requirement, causation is not established unless actual result probable consequence of actors conduct. So F-M rule w/MPC, D may not be convicted if death not probable consequence of felonious conduct. Scenarios, p.219 X intentionally stabs V. V will die in 15. D intentionally shoots V. V would not die on its own. V dies in 10. o Who is but for? X is responsible. But for what D did, V would have died in 15 not 10. D is but for when at this moment he would not have died. D contributed. o If V could have been saved in that 5 minutes, then X may not be the proximate cause. D is now the prox cause. o If V could not have been saved in that 5 min, then both x and D are proximate causes D unintentionally shoots V.

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o Cant pursue intentional homicide crime. But does lack of mens rea effect causation? NO. MENS REA & CAUSATION ARE COMPLETELY DIFFERENT ISSUES. It effects which crime will be convicted off, but it does NOT change the crime. V dies in 15 o This Oxendine. D not but for b/c no change to when, moment, V dies. X but-for. On an exam, look for these 5 elements of a crime in this order: 1. Voluntary act (rarely an omission) 2. Look for the social harm as defined in the offense 3. Mens Rea Almost all crimes have a mens rea 4. Actual Cause 5. Proximate Cause

CRIMINAL HOMICIDE
Homicide is the killing of another human being. 1. Common Law Classifications: at common law homicides are classified as justifiable, excusable, or criminal. Justifiable homicides are those commanded or authorized by law, and are not punishable. Excusable homicides are those in which the killer is to some extent at fault but where the circumstances do not justify infliction of full punishment for criminal homicides; the killings remains criminal but the penalty is reduced. Any killing that is not justifiable or excusable is criminal homicideeither murder or manslaughter. 2. Classification Under MPC: the model penal codes abandons the common law scheme. Most states divide murder into degrees. MURDER Common Law Murder is the intentional killing of another person with malice aforethought. Traditional common law did not distinguish murder from manslaughter. Manslaughter does not require malice. There are NO degrees of murder in the common law. Malice Aforethought: malice aforethought is sometimes defined as the intention to kill, actual or implied, under the circumstances which do not constitute excuse or justification or mitigate the offense to manslaughter. The intent to kill is actual where the defendant consciously desired to cause death, and implied where the defendant intended to cause great bodily harm or where the natural tendency of her behavior was to cause death or great bodily harm. No ill will or hated of the victim need to be shown. Absent evidence of adequate provocation, malice aforethought exists if, at any time during the killing, the defendant had any one of the following states of mind. Intent to kill: if the defendant intended to cause the victims death, the killing is with malice aforethought and thus murder (express malice). o Was death the probable and natural consequence of Ds actions? o Was a deadly weapon used? (natural/probable consequence use of such is death, obviously) 25

 Intent to inflict great bodily harm: if the defendant intended to inflict serious bodily injury upon the victim, even though she did not consciously desire to cause the victims death, and did in fact cause the victims death, the killing is with malice aforethought and thus a murder. (implied malice) Intent to commit a felony: if the defendant was in the process of committing a felony when she did the act that caused the deathand therefore had intent to commit a felonyshe acted with malice aforethought. (implied malice) Reckless disregard for value of human lifedepraved mind or abandoned and malignant heart murder: Extreme recklessness regarding whether conduct will hurt someone; acting in the face of an unusually high risk that her conduct will cause death or serious bodily injury. Just dont care enough about other peoples safety that youre going to stop doing what youre doing ExampleRussian Roulette game; (implied malice). o Be aware Reckless is used in the MPC to mean criminal negligence, an involuntary manslaughter crime- so, here, EXTREME recklessness MUST be shown o Factual determination based on the case risk-taking that justifies saying D as good as intended to kill the victim Intentionally shooting a gun into a room of people Speeding drunk in the rain Trains Rottweiler to attack, and not securing them Omission parent fails to feed a kid for 2 weeks Conscious disregard of a substantial and unjustifiable risk to human life Degrees of Murder: at common law there were no degrees of murder, however, statutes have changed that.

First Degree Murder (express malice):

Statutes typically classify the following homicides as first degree murder. Common approach to 1st degree murder- premeditation and deliberation can occur in an instant. As long as killing is intentional, going to be hard for court to say it was not premeditated and deliberated. Premeditated Killings: premeditated killings are those in which the intent to kill is formed with some reflection, deliberation, reasoning or weighing, rather than simply on a sudden impulse. Thus premeditation is, in a sense the process by which intent to kill is formed or the defendant finally decides to act on the intent to kill. Elements: Deliberate intentional killing Premeditated With malcie Factors : Time to consider actions, planning/rational though, motive, cold-blooded-ness, absence of passion/panic, did D bring weapon the scene?, continuous struggle or is there a break in the action? o US v. Watson allowed 1st degree murder when D was wrestling with a cop and reached for cops gun and shot the cop. Court ruled that the D premeditated killing the cop between the seconds between taking the gun and shooting the cop. Deliberate to measure and evaluate the major facets of a choice or problem o Cool purpose = free from the influence of excitement or passion 26

Premeditated- law is divided on how much thought actually has to go in beforehand (1) Proof of opportunity: some courts defer to juries conclusions that defendant did premeditate and tend to uphold a verdict of guilty of premeditated murder if the evidence show the defendant had sufficient time to provide an opportunity to premeditate and jury found she in fact did. No reqmt. of a long period of time during which the evidence suggest she might have premeditated. These courts say that the intent can occur as instantaneously as a successive thought. (2) Proof of actual due consideration: a few courts insist on somewhat direct proof that the defendant did in fact give the question whether to kill reasonably calm consideration.

Killing During Enumerated Felonies (FM): killings committed during the perpetration of certain felonies are often made first degree murder. The relevant felonies are listed in the statute. Killing by Poison, bomb, lying in wait: killings committed by use of poison or a bomb, or after lying in wait for the victim are sometimes specifically made first degree murder.

Second Degree Murder (implied malice):

Second degree murder is the voluntary killing of another human with malice aforethought and without premeditation and without adequate provocation (see below for this discussion). o Malice can be express or implied. Malice can be when the defendant acts with the intent to kill, the intent to inflict great bodily injury, recklessness (depraved heart) or when there is a Felony Murder (the death of a human during the commission of an inherently dangerous crime, usually Burglary, Arson, Rape Robbery, Kidnapping (bark)) that is independent from the actual death of the victim. under statutes that divide murder into degrees, all killings committed with malice aforethought (or depraved heart/extreme recklessness) that are not specifically made first degree murder are second degree murder. This is Murder without premeditation or deliberation (not planned). Reckless murder falls within this category b) Manslaughter Killing of another person without malice. 3 Types i. Voluntary Manslaughter ii. Involuntary Manslaughter - Criminally negligent homicide iii. Involuntary Manslaughter - Misdemeanor manslaughter

VOLUNTARY MANSLAUGHTER
- Heat of passion killing Intentional killing that would otherwise be murder but that was committed in response to sudden and adequate provocation and is thus without malice aforethought and therefore voluntary manslaughter. Downgraded/mitigated murder. Elements: Kills someone With reasonable and adequate provocation Actually provoked 27

No time to cool off Without malice

Provocation Honor killing defense has disappeared modernly under the CL, The reasonable person is now more subjective and flexible than a strict reasonable person standard, and now informational words may be ok to provoke when in the past, no type of words were ever enough to provoke. o The defendant must have acted with one of the states of mind necessary for malice aforethought, but the provocation reduces the killing from murder to manslaughter. o At Common Law, VM was only available in a few situations (response to physical attack, mutual combat, sight of adultery) it has now been EXPANDED o Some states allow VM only in sudden quarrel/heat of passion (anger), but the MPC allows it MORE BROADLY o MPC EMOTIONAL INTENSITY- not necessarily anger o MPC also has no requirement of SUDDENNESS o Ex. You get INFORMATIONAL word that your wife has cheated on you and you immediately kill the wife o Mere words are not enough but sometimes INFORMATIONAL words are o Typically need to actually SEE or EXPERIENCE the provocation rather than hear something. Ex. You actually see your wife cheating on you and you kill her.

1. Elements of Provocation Reducing Murder to Manslaughter (1) There must have been adequate provocation of the kind that would cause a reasonable person to lose control and act rashly and w/o reflection (Mere words are not enough); (2) The defendant must have in fact been provoked, and the provocation must have caused the defendant to kill the victim. (3) The interval btwn. the provocation and the killing must not have been long enough for the passions of a reasonable person to cool (cooling time) The killing must have occurred in the heat of passion; and (4) The defendant must not actually cooled off during the interval btwn. the provocation and the killing. Voluntary Manslaughter TEST: 1. WAS D ACTUALLY PROVOKED? 2. WOULD A REASONABLE PERSON HAVE BEEN PROVOKED HERE? a. Would a reasonable person have been THAT UPSET in this situation? b. MPCs reasonable person is an average D who took on SOME of the subjective characteristics of the D, but not all of them i. Ex: Same gender, disability, size but NOT emotional characteristics (Unlike England) 3. (for CL only) WAS THERE SUFFICIENT COOLING TIME? a. Did D cool off? b. Would a reasonable person have cooled off? 28

2. Reasonable (adequate) provocation: whether provocation is reasonable under the circumstances is traditionally judged from an objective standard, such that the situation must have been one in which the reasonable person would have been provoked. (1) Characteristics of the reasonable person i. Purely objective standard: some courts take the position that the reasonable person should not be regarded as having any of the defendants peculiar characteristics, b/c it would deprive that standard of its objective nature. ii. Compromise standard: other courts adopt a compromise position that permits consideration of some of the defendants personal characteristics typically his physical characteristics rather than his mental characteristics. iii. Model Penal Code: (see below under involuntary manslaughterMPC doesnt differentiate between involuntary or voluntary) (2) Particular situations: there are certain situations that are considered insufficient as a matter of law to reduce a killing to manslaughter. i. Words alone: mere words, no matter how insulting, are not adequate provocation. However, informational words may constitute in some situations. ii. Battery: only a violent and painful blow can be sufficient provocation. iii. Assault: in some aggravated cases, assault may sufficient provocation. (firing a gun) iv. Adultery: discovery of ones spouse in the act of committing adultery is sufficient for a finding of provocation. v. Mutual combat: if two persons voluntarily engage in a fight, in the course of which one is killed, the homicide is manslaughter. The suddenness of the affray is the provocation. (3) If the defendant intended to kill the provoking party but killed someone else, either by accident of b/c he was mistaken as to who provoked him, the killing is still voluntary manslaughter. 3. Actual Provocation: no matter how reasonable the provocation, a killing will not be reduced to manslaughter unless the defendant was actually provoked. It must be shown that provocation was such as would cause a reasonable person to lose control and that the defendant in fact became so enraged that his conduct was directed by passion and not reason. 4. Absence of reasonable cooling period (1) Majority rule: the general rule is that homicide is not manslaughter if b/w the provocation and the killing there elapsed sufficient time to enable the passions of a reasonable person to cool. (2) Minority rule: some courts require only the defendants own passions not have subsided. It is immaterial that the passions of a reasonable person would have cooled during the lapse time, as long as the defendant himself was still enraged at the time of the killing. 5. No actual cooling off: regardless of the period of time b/w the provocation and the killing, it must be shown that the defendants passion did not in fact subside. Thus if the defendant is unusually controlled and regains composure in a short period of time before the killing, the homicide is murder even though the passions of a reasonable person would not have been cooled.

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6. Model Penal Code Position: under the MPC, a killing that would otherwise be murder is reduced to manslaughter if it was committed under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse. VM Justifications: Provocation as an EXCUSE its not socially useful, but we understand where you are coming from HUMAN ELEMENT people just Lose Control in some situations Human frailty. Justification you fucked my wife, which was like taking my property? Mixture of J/E

INVOLUNTARY MANSLAUGHTER
An unintentional killing is involuntary manslaughter if it is the result of criminal negligence or (2) it is caused during the commission of an unlawful act that is not a felony or that for some other reason is insufficient to trigger the felony murder rule.

Elements Kill Comission of non-felony unlawful act OR In commission of lawful act which might produce death, in an unlawful manner OR Without due caution or circumspection

At CL, the term unlawful Act can mean a morally wrongful act that isnt criminal! At CL, any morally wrongful act that leads to an unintentional death would amount to involuntary manslaughter. Ex: Midgett v. State father beat child to death, but intended only to beat him to keep him alive to continue beatings. 1. Killing by Criminal Negligence: an unintentional killing caused by the commission of any lawful act in a criminally negligent manner that might produce death (without due caution or circumspection). The situation must have been one in which there was both a high and unreasonable risk of death of another. (failing to be aware a substantial and unjustified risk, and such failure is a gross deviation from the standard of care which a reasonable person would exercise in the situation) (1) Often, the line between this and a finding of malice aforethought (murder) is drawn on the actors consciousness of his risk-taking someone who SHOULD be aware of the risk, but isnt, is held under criminal negligent manslaughter, but one who is aware of the risk and disregards it is liable for depraved heart/reckless indifference murder. i. Ex: Playfully shooting a gun, knowing it is halfway loaded = murder, but doing it honestly thinking its not loaded, but not checking, is criminal negligent manslaughter. 30

ii. Parent neglecting to feed child = murder. Parent not realizing the child hasnt been fed for 4 days = manslaughter. 2. Killing by Commission of an Unlawful Act (Misdemeanor Manslaugher): an unintentional killing caused during the commission of an unlawful (non-felony) predicate act is involuntary manslaughter. (1) A misdemeanor will suffice for manslaughter. A felony that for any reason will not support felony murder will be enough for involuntary manslaughter. (2) Limitations on the doctrine i. Predicate offense must be malum in se rather than malum prohibitum: some jurisdiction hold that the predicate act must be not only unlawful but also malum in se (wrong in itself rather than simply malum prohititum) (prohibited for convenience). (traffic violations are only malum prohibitum so they are insufficient predicate for misdemeanor manslaughter).

Model Penal Code 2.10 MURDER, MANSLAUGHTER, NEGLIGENT HOMICIDE

recognizes Murder, Manslaughter, and (unlike CL) negligent homicide 1. Murder: under MPC, murder is defined as a killing committed (1) purposefully, (2) knowingly, (3) or recklessly under the circumstances manifesting extreme indifference to the value of human life. a. If the actor intentionally takes a life, or acts with extreme recklessness/depraved heart = murder i. MPCs recklessness version of Murder is basically the MPCs answer to FM. When the D acts recklessly (such as committing an inherently dangerous crime like robbery or rape) it is presumed that the D is responsible for any deaths that occur during the commission of the dangerous crime. HOWEVER, the MPC allowed this to be a rebuttable presumption which allows the defense to rebut the murder charge. b. No DEGREES of murder in MPC graded as a felony in the 1st degree c. Abandons concept of malice aforethought Presumed if the actor is engaged in, or an accomplice in the commission of, an attempt to commit, or flight after committing or attempting an enumerated felony. d. Drafters were anti-FM, but had to put it in for political reasons. Non-conclusive presumption. (Most states FM is a non-rebuttable presumption contrast) 2. Manslaughter: the MPC abandons the distinction b/w the two traditional types of manslaughter, and instead creates a single manslaughter offense. Under this scheme, manslaughter is (1) a killing committed recklessly, or (2) a killing that would otherwise be murder but is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse, determined from the viewpoint of a person in the actors situation under the circumstances as he believes them to be. Felony in 2nd degree. a. Reckless homicide could be punished as manslaughter or murder under MPC its up to a jury to decide: i. For murder, the recklessness must manifest extreme indifference to the value of human life 31

b. No manslaughter liability under MPC for criminal negligence drafters didnt think someone who lacks a conscious disregard deserves the serious conviction of manslaughter c. Extreme Mental and Emotional Disturbance is EXPANDED from CL 3. Negligent Homicide: the MPC creates a new homicide offense of negligent homicide consisting of killings committed negligently Ex: State v. Forrest, son killed father in hospital- shoots in head 4 times. There is evidence of premeditation and deliberation- 4 shots, type of gun, statement that he wanted to put father out of misery. As a rule, good motive is not enough to lower charge. Court found guilty of 1st degree murder. Can argue for heat of moment (jury nullification).

FELONY-MURDER RULE
If you attempt or commit a felony, and someone dies in process guilty of felony murder. Murder simply must occur during the commission of the felony may include fleeing the scene of a crime or evading the police Ex: People v. Fuller Def. steals car, gets into car accident and kills another drive. Charged w/ first degree felony-murder. Underlying felony is burglary. If no felony-murder homicide, maybe here involuntary manslaughter or 2nd degree murder. It doesnt matter that the burglary is over b/c its connected Described as strict liability- state relieved of proving mens rea for murder. State must prove guilty of felony, and causal connection between felony and death. o Generally, Ds mens rea regarding the killing is irrelevant o Even if D is a minor accomplice, doesnt matter whether D intended to kill, was reckless, negligent, or accidental if you commit a felony and someone else dies as a result guilty of murder Policy: Why do we have felony murder rule? o Deter people from committing dangerous felonies o Deter people from committing felonies in dangerous manner (carrying weapon) o If D decides to do something as bad as a felony, D cant claim innocence deserves punishment (retribution) o Underlying rationale- if D chooses to commit a felony and someone dies as a result, D deserves the highest punishment Enumerated v. Unenumerated: Enumerated listed in statute as felony murder felonies; 1st degree murder Nonenumerated (Predicate) felonies that are inherently dangerous to human life

Limitations on Felony Murder

(1) Death of another must be foreseeable: some courts require that the death of another have been foreseeable result of the felony. (2) Felony must be dangerous: a number of states limit felony murder to underlying felonies of a specific nature, which often requires that the predicate felony be dangerous. (3) Felony must be independent (merger rule): most courts hold that felony murder can be applied only where the predicate felony is somewhat independent of the killing. If the 32

predicate felony is the assault or battery by which the victims death is caused, the felony merges into the killing and thus does no retain sufficient independence to be a predicate felony. i. Ex: You cant use voluntary manslaughter as the predicate felony to get murder 1 allowing this would render VM charges extinct! (4) Death must be caused in the perpetration of the felony: all courts agree that the killing must be caused in the perpetration (or attempted perpetration) of the predicate felony. The completion of the crime occurs when the party has made it to a place safe from apprehension. (5) Courts will try to limit FM: i. Limiting FM to the enumerated felonies ii. Requiring a together causal link than simply but-for (Martin, Stamp cases) iii. Limiting it to INTENTIONAL killings that occur during the course of the felony iv. Looking at the different permutations that occur, and looking at WHO DIED, their relationship to the underlying felony, and HOW they died 1. Who died? Who killed that person? 2. Protected Person Theory (Hickman) MINORITY a. we care about the deaths of INNOCENT PARTIES innocent party dies, the FM applies. Death of co-felon dies from police officer, you are NOT guilty of FM. b. Doesnt matter who the killer is 3. Agency Theory (Washington) MAJORITY a. FM reaches deaths caused by agents of the felon, but not the intervening 3rd party such as police shooting and killing b. If co-felon (agent of the crime) kills someone, all co-felons guilty of FM c. More common rule, but not overwhelmingly 4. Proximate Cause question in these theories (Martin/Stamp debate) a. Ask how tight is the proximate cause? b. Is D only on the hook for deaths that arent too remote? v. When is the commission of the felony over? This is CRUCIAL! (Gladman/res gestae) 1. Factors How far away is D physically from crime? How much time has elapsed? Are the cops in pursuit? Had felon reached safety? These questions affect whether the felon can be guilty of FM.is the death too long after the felony was committed

Analysis of FM
1. Did the defendant act with the state of mind that is sufficient to establish malice aforethought: Did the defendant act with intent to kill? or Did the defendant act with intent to cause serious bodily injury? or Did the defendant act with awareness of high risk that death of serious bodily injury would be caused? Was death caused in the commission of a felony sufficient to invoke the felony murder rule? If the defendant had any of these states of mind at the time of the defendants conduct that caused the victims death, the killing might well be murder. 2. Is there an applicable statute that separates degrees of murder? If so: 33

 Are there facts suggesting that the killing was premeditated? Under many such statutes, this will make the killing first degree murder. Was the killing caused during the commission of specifically listed felonies? Often this will be 1st degree murder felony murder. Under such schemes, all killings that meet the general definition of murder are not raised to first degree by these two methods will be second degree murder. In the absence of a statute, do not worry about degrees, b/c common law murder is not divided into degrees. Degrees ONLY exist under a given STATUTE. 3. If the facts suggest that the killing was murder, do those facts also include all four elements of adequate provocation? A sufficient provocation; A showing that the provocation did in fact stimulate the defendants killing of the victim; A lack of a cooling period b/w the provocation and the killing; and The failure of the defendant to have actually cooled off after provocation. If so, the killing will most likely be reduced from murder to voluntary manslaughter. 4. After covering the possibility that the killing might be murder of voluntary manslaughter, consider as an alternative whether the killing might be involuntary manslaughter under either of the following approaches: Did the defendant act w/o male aforethought but with criminal negligence? Was the death of the victim caused during the commission of an unlawful act that does not bring into play the felony murder rule? Also watch for a statue in the question creating the crime of criminally negligent homicide. If such a statute is applicable, a negligent killing will constitute this crime rather than involuntary manslaughter. 5. If there is any chance that any of these offenses apply, consider whether there are problems of causation. Consider separately three different possibilities: Is there any chance that the victim failed to die within a year and a day so as to invoke this special rule? Was there factual causation (did the defendants acts cause the victim to die as and when the victim did die)? Was there proximate cause? Most importantly, was any factor interjected into the chain of causation b/w the defendants conduct and the death of the victim that might be regarded as a superseding factor?

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ATTEMPT (Inchoate Crimes)

[incomplete/imperfect] ATTEMPT Intent to commit a crime Mens rea necessary for the target crime Look at 7 different act tests or the MPC act test o CL cant abandon o MPC can abandon

Definition: D w/intent commit offense performs act done towards carrying out intent Why punish? -Deterrence (earlier we stop people from thinking about crimes, the better). Retributive thinking about crime = you are worthy of punishment. Attempted crime = D is a bad person. Without attempt crimes, there is low risk for a criminal to try a crime with a low success rate. Punish attempts may prevent further crimes (some are predisposed to criminal activity). We dont want to let people go for being LUCKY/BAD criminals. How much is attempt punished? o MPC punishment for attempt is the SAME for the punishment of the completed crime Exception- Capital murder/1D felony (life in prison sentences) = 2D felony punishments. o Consistent with subjectivism You are as BAD as the person who completes the crime o NOT accepted in most jurisdictions o MPC 5.01 (a) and (b) are for completed, but imperfect attempts You did everything you could, the crime just didnt happen is for incomplete attempts D attempted SOME of the crime, but stopped short Common Law- Most states (NC included) punish attempts 1 level lower than the completed crime. o Ultimately, the crime caused less harm. o Some states simply cut sentence in half Complete v Incomplete attempt: o Complete: Does every act planned but unsuccessful producing intended result. Matter of luck go as far to shoot gun but misses. o Incomplete: Stops short of everything need to do to commit crime Person gives up change heart, doesnt work today etc Stopped by 3rd party police, victim etc. 2 Approaches: o Objectivist: Many CL states use b/c easier test. What did D do? In eyes of 3rd party. Bright-line. D must have done substantial action before he hold liable for an attempt. Focus on social harm cause apprehension to public o Subjectivist: MPC approach. Focus on Ds mind & intent (mens rea). Proof planning persuasive. We care about INTENTIONS. To hold liable, we must witness just enough conduct that reinforces our belief. Even if doesnt result in social harm can be punished. o Ex: Objectivist attempt D walks into bank, gun in hand, with a ski mask on. Subjectivist D circles the block, with a gun and ski mask in the car MPC TAKES SUBJECTIVIST APPROACH TO ATTEMPT, COMPLICITY, AND CONSPIRACY 35

CL/MPC differences - 1. CL drops offense one level, MPC does not, 2. MPC has one test, CL has 7 different tests that vary in strictness, 3. MPC is able to abandon and CL is not

MENS REA FOR ATTEMPT

Traditional rule: D must have the specific intent to commit the underlying crime. o Intent to commit the target offense MUST be proven EVEN IF such intent is not required to be proven to be guilty of the targeted offense Ex. Attempted murder must show the specific intent EVEN IF the charge of murder does not require specific intent (such as a gunman shooting blindfolded into a crowded room as a joke not intending to kill if he kills, he will still be guilty of murder, if he doesnt kill he wont be guilty of attempted murder because he DID NOT have SPECIFIC INTENT to commit the targeted crime) o MPC- Must have the purpose (which essentially specific intent) o Lyerla problem what if the underlying crime is one of GENERAL intent? (negligence/recklessness)? CL no attempt liability for unintentional crimes! (Lyerla) MPC 5.01 tries to fix this Both MPC and CL require you have purpose to engage in conduct or cause a result, depending on what the crime requires CL NO ATTEMPTS FOR UNINTENTIONAL CRIMES

MPC 5.01: Didnt achieve goals. Subjective approach. (1) Definition of attempt (a) Purposely engages conduct would constitute crime if AC were as he believes them to be CONDUCT CRIMES - D does all the conduct, but for some reason there is a lack of an attendant circumstance, so the crime doesn't occur (COMPLETE) (b) When causing particular result is element of crime, does or omits to do anything w/purpose of causing or with believe that it will cause such result w/o further conduct on his part RESULT CRIMES - D does all the conduct, but the result doesn't happen (all AC's occur) (COMPLETE) (c) Purposely does or omits do anything that, under circum as believe to be, is act or omission constituting a substantial step in course of conduct planned to culminate in commission of crime Act test. D takes SOME STEPS towards offense. [INCOMPLETE] Similar 1(b), implied that even if not conscious object, if believes result guilty (2) Determines what is substantial step for incomplete crimes (1) Conduct, in order to be deemed a substantial step, must strongly corroborate the actors criminal purpose (serve as evidence/testimony of the intent). 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 specifically designed for such unlawful use or which can serve no purpose of the actor under the circumstances. 36

f. Possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place to be contemplated for its commission, where 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 Applying MPC: (1) Complete or incomplete attempt? (2) if complete, result or conduct? (1)(a) use complete conduct crimes. (1)(b) use complete result crimes (1)(c) use incomplete crimes What if a crime involves an attendant circumstance? Ex: Crime requires you to purposefully engage in a behavior, knowing about something else (AC) MPC - KEEP the mens rea that is necessary for the AC - don't use the mens rea for the ACT ATTEMPT SUMMARY CL - Attempt is a Specific-intent crime You must have specific intent of the target crime Majority of states - no attempt liability for unintentional crimes Doesn't tell us what to do with attendant circumstances: Doesn't tell us if the mens rea for the crime is transferred to the AC, or if there is a default Actus Reas - series of Act Tests - different ways courts look at cases, no single rule within any given jurisdiction Attempt is usually punished less seriously than a completed crime at CL NC - level of felony/misdemeanor is dropped 1. MPC - tweaks this a LITTLE bit Must have PURPOSE to engage in the conduct/or to proscribe the result For AC, keep the mens rea that is attached to the underlying crime Ex: Strict liability AC in a crime, keep the strict liability for the AC in an attempt Gives us ONE SINGLE ACT test - SUBSTANTIAL STEP test Did the actor take a substantial step towards the crime? It must strongly corroborate the actor's intent Punishment - because MPC focuses so heavily on the SUBJECTIVE view of the actor (if you try to commit a crime, you are just as bad as the successful criminal), MPC punishes attempt the same as a completed crime This changes the strategy in a lot of cases - no point to argue an attempt

ACTUS REUS FOR ATTEMPT

where to draw line b/t preparation v perpetration Mere preparation v establishing attempt. Require conduct or not sure what D meant to do but also want officers to intervene before harm balance test. Common Law 37

Preparation alone is not enough, there must be some appreciable fragment of the crime committed, it must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter, and the act must not be unequivocal (undetermined, questionable) in nature. CL holds that the Actus Reus is fulfilled somewhere between preparation and perpetration Obviously this is very vague o A declaration of intent is also not enough, it does not amount to an attempt. o Whenever the desire (intent) of a person to commit a crime is clearly shown, slight acts done in furtherance of this design will constitute an attempt. People v. Rizzo Defendants wanted to rob the person making the bank deposit that day, but they could not find him and the person they thought had the deposit did not in fact have it. There must be a dangerous proximity to success; an act very near to the accomplishment of the crime.

7 CL TESTS FOR ACTUS REUS OF ATTEMPT + MPC Test

Last Act Principle If the defendant completes his last act in the commission of a crime, typically this will be sufficient to deem his behavior an attempted crime (ex: pulling the trigger, yet missing; attempting to pick-pocket an empty pocket) no chance for the criminal to change his mind o *A mere collection of materials and preparation for completing a crime, unaccompanied by any present attempt, is too remote Physical Proximity Test How physically close to completing the crime did the defendant get (ex: holding a match near a gasoline doused stack of hay). Dangerous Proximity There must be a dangerous proximity to success. The acts constituting an attempting must come very near to the accomplishment of the crime. How likely is the attempt to work and how bad is the crime going to be? Three elements: o the nearness of the danger o the greatness of the harm o the degree of apprehension felt Indispensible Element Test Is there something the defendant needs or needs to do before he can complete the crime, and that thing is not yet within his control. If so, unlikely to be deemed an attempt. But-for-interruption But-for intervention, would the crime have occurred? Probable Desistance Probability that the defendant would have stopped on their own and not committed the crime. If the D has gone so far that the ordinary person would not now turn back, he has fulfilled the Actus Reus requirement. Abnormal Step Test Did the defendant take a step that a normal law-abiding citizen wouldnt take? Did they do something abnormal that shows that they were likely to commit a crime? Unequivocal Looking at the defendants conduct, are we certain that the defendant was going to commit the crime Substantial Step/MPC 5.01(1)(c): MPC test Focuses on what the D has ALREADY done, not how much FURTHER they need to go (like last act and proximity tests) MPC 5.01(2) Determines what is substantial step as MoL

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The Actus Reus of attempt is satisfied if the D takes a SUBSTANTIAL STEP towards committing the crime EVEN IF there is much more that needs to happen for the crime to actually occur. The substantial step must CORROBORATE the Ds intention. It must first be demonstrated that the D had the INTENT to commit the offense and that the conduct itself must be substantial enough to CORROBORATE that intent. Substantial steps are outlined below.

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(a) lying in wait, searching for, following V (b) enticing, seeking to entire V to place contemplated for commission (c) checking out place contemplated for commission of crime (d) unlawful entry structure, car or enclosure contemplated for crime (e) possession of materials to be used, designed for unlawful use, no lawful purpose under circumstance (f) possession, collection, fabrication of materials to be used, at or bear place, no lawful purpose (g) soliciting innocent agent engage conduct constituting element of crime

DEFENSE TO ATTEMPT - Impossibility

Factual Impossibility: It is actually impossible for D to commit the crime because some FACT is not as they believe it to be and that fact is required for the elements of the crime to be present. Fully intend commit crime but circumstances beyond control prevent. Courts NOT sympathetic. NO DEFENSE. o Ex. D wants kill V. Fires into bed where thinks asleep. V not home. Guilty. o Ex. Pickpocket hand in Vs empty pocket. Pulling trigger unloaded gun Inherent Factual Impossibility: Rare. Try sink battleship w/cap gun. Voodoo cases. Conduct harmless, but actor morally blameworthy b/c really believes it. [Courts are usually sympathetic to these simpletons] Legal Impossibility: What the D thinks is a crime is actually LEGAL and cant be a crime. DEFENSE. Crime never happened b/c act is not illegal. Lawful act w/guilty conscience. Legality principles. Shit, I committed this crime of dropping a puppy. NOT A CRIME. Hybrid: Has elements of both factual and legal impossibility. Generally treated as a FACTUAL impossibility and therefore is not a valid defense.. NO DEFENSE generally. Definition: Ds goal illegal but commission of offense impossible due to factual mistake regarding legal status of some AC (factor) that constitutes an element of the offense o Crime is impossible because D made a FACTUAL mistake about the LEGAL status of some element of the offense o Ex: Shooting a person that D thinks is alive but died minutes ago from a heart attack, shooting a tree stump thinking its a human o Ex. D trying tamper w/jury but approaches person w/bribe thats not a juror. Whether person is juror is legal and factual question, depending who ask. D say legally impossible commit crime b/c person not juror. Prosecution say made factual mistake as to who juror is. What did not technically illegal. o Ex: Defense if D receive unstolen property o Any hybrid impossibility can be characterized as a FACTUAL or LEGAL mistake: As a matter of law, shooting a corpse is not, and never will be, a crime of murder killing a living human is an element legal impossibility Had the facts been as D thought they were, he would have attempted murder he just got lucky! factual impossibility o ON THE EXAM If dealing with CL, say that in many jurisdictions this exam scenario would be factual impossibility and show how it could be so argued, and then show how it could be argued to be legal impossibility and then point out that many jurisdictions including the MPC have ABOLISHED the distinction because the D is determined to be just as culpable in either scenario Thousand case (2001): hybrid example - guilty 40

o Policemen pose as minor and talk w/D in chat-room. D send images. FACT person receiving images not minor. But whether minor is LEGAL construct. Subjectively, D thought everything doing a crime. But reasons beyond control crime not established. Courts sympathetic claims impossibility. Concerns courts. But hereMajority finds policy behind substantive crime more important how construe statute. So guilty. Dissent says state has always taken objective approach to attempt and looks at steps much closer so why not taking subj approach and statute should be changed instead making example. People v. Jaffey D received what he believed to be stolen property. The property was actually not stolen property. When D received the unstolen property, he could not be convicted of the crime receiving stolen property b/c it wasnt stolen. However, he could have easily been found guilty of attempting to receive stolen property. But the property was not actually stolen which makes it a legal impossibility (which is what the court decided). D was let off. MPC ELIMINATES FACTUAL AND HYBRID IMPOSSIBILITY DEFENSES Eliminates factual - (a) purposely engaged in conduct would constitute crime if AC has as he believedhe believed a minor so thats what matters. Eliminates hybrid Legal impossibility ONLY defense. Favors prosecutors but cleaner o Note: not using substantial step test b/c have COMPLETE attempt. If incomplete, would then use test and guilty too. Same result.

ATTEMPT DEFENSE - Abandonment

CL THIS DID NOT EXIST - Once there is an ATTEMPT, there is no ABANDONMENT o But, courts get around this by FUDGING what TEST they use to categorize the attempt! Hey, well let you off because we can just classify your actions as not constituting an attempt MPC - - 5.01(4) complete and voluntary renunciation of your criminal underlying purpose Ds abandonment is NOT voluntary if its motivated by GETTING CAUGHT The abandonment must be TOTALLY abandoned So, MPC and CL often come to the same result, albeit by different means

Book Notes Attempted Assault: CL attempted assault would be attempt commit battery. Most JD dont recognize. If attempt to commit an attempt allowed, never ended domino effect

SOLICITATION
CL: Definition: D invites, requests, commands, hires, (MPC adds encourage) another to engage in criminal conduct. No overt act requirement The D requesting must have a stake in the outcome Can ONLY be charged with solicitation if solicitation was unsuccessful / crime was not completed / isnt being charged for attempt Solicitation ALWAYS merges with conspiracy SPECIFIC INTENT crime Only exists because of GAPS in our ATTEMPT LIABILITY 41

Crime is committed when D REQUESTS another to perform a crime whole point is to get D where the traditional ACT TESTS FAIL Solicitation is committed VERY, VERY EARLY because of this, many states ignore the MPC approach and punish it LIGHTLY less than attempt D is guilty of solicitation AT THE MOMENT he requests, does not matter if the request was received or not

MPC: Punish same as if he completed the crime. Definition: D promoting/facilitating commands, encourages, requests another person engage specific conduct constitute crime or attempt to commit crime. DOES NOT require communication under the MPC, CL can require it Affirmative defense if complete and voluntary renunciation of crim purpose Today: Most States adopted MPC version of solicitation definition but reject MPCs harsher punishment. Courts not sympathetic w/impossibility Ex: A sends e-mail to B asking B to kill C email never gets to B A is STILL guilty of conspiracy. If A solicits B to commit a crime and B AGREES, then the crime of solicitation MERGES with conspiracy and A would not longer be charged with solicitation but rather conspiracy (under both the CL and MPC)

CONSPIRACY
An agreement between 2 or more people to commit an unlawful act, or do a lawful act in an unlawful manner. Modern approach: Overt Act Purpose to agree Purpose to promote crime Under CL, you can be convicted of BOTH conspiracy AND the crime Under MPC, once the crime is committed, you can NOT be charged with conspiracy, you will be charged with the completed crime either directly or as an accomplice. Assess liability much earlier in time than attempt. CL 2 people are needed. MPC only one. o CL Courts have been friendly where 1 D and 1 undercover cop even though there are not TWO people with the requisite mens rea o At CL, the MOMENT 2 people agree to commit an unlawful act, conspiracy has occurred different than most state statutes or the MPC Make sure separate conspiracy from conspirators. Conspirators can get out of conspiracy or go off and do other things. Policy: A group is more likely to be able to commit to a task and carry it out. Group is capable of more complex/dangerous/extreme crimes. Ultimate harm is people COMING TOGETHER. More resources. Problems: too vague. too inchoate. Focuses on mens rea and not as much conduct, so persons punished more for what say than do. 42

CL: Straight-forward definition. Agreement to commit crime. Needed 2 conspirators, narrow. Specific intent crime b/c purpose to commit target crime. Conspiracy DOES NOT merge with the crime if crime is committed MPC - 5.03: o Purpose to Agree o Purpose to commit target crime o Subj. Broader. Agreement made w/purpose promote commission of crime. o Under MPC, once the crime is committed, you can NOT be charged with conspiracy, you will be charged with the completed crime either directly or as an accomplice. o 2 Mens-rea: purpose enter into agreement + purpose commit target crime o Can find 1 person guilty-dont need other. No plurality agreement o Punished same as attempt=punished same as target crime o Unlike CL, wont let be convicted of both conspiracy & attempt. Or both conspiracy & target crime (AL). No double-sentence. Merge. Modern Approach: o Purposeful Agreement of 2+ (wants evidence on both, not just going after 1) o Purpose To commit a crime o Overt act required some little act. Doesnt have to be substantial step. Can be as simple as buying a roadmap o Majority states: dont punish conspiracy as harsh as target crime. Ex: NC and most states: If its a conspiracy to commit felony, punish for felony 1 degree less than what planning. Same for misdemeanor, 1 level down. o In most states can be punished for conspiracy AND target crime (diff than attempt where cant merge into target crime) Overt Act In most jurisdictions (not Federal) we need proof of an OVERT ACT to show that there really was a conspiracy. o VERY LOW BAR o NOT the act test doesnt have to be a criminal act, can be ANYTHING that shows us an agreement was made o Prosecutor-friendly. Defense hates. Procedural and evidentiary advantages. o Easy sweep Ds into conspiracy. Responsible for things didnt participate in o Once get crime of 1+ person prosecutors always charge conspiracy. Bring in lots of Ds w/relatively little evidence on each individual one. o Expand Ds you can charge o Expand # of CRIMES you can charge o Important how Prosecutor defines conspiracy if broad/narrow effects how many people bring in whether going for top or all. DEFINING WHO IS PART OF THE CONSPIRACY IS KEY DANGER: If dont characterize conspiracy correctly, and dont identify goal correctly, cant prove D wanted commit THAT crime o Hearsay Exception: Conspiracy exception to the rule. Your admissions AND the statements of your agents can be used against you b/c standing in your shoes. Every co-conspirator is agent of each other. So can get on stand and talk about anyone what said and did.

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o One joint trial: Technically, dont bring in evidence until establish conspiracy but all comes in at once practically. Also hear evidence about all conspirators so hard distinguish o Venue: Broad venue rules. Any JD agreement, overt act, target crime occurred.

Pinkerton Rule: Makes Conspirators Accomplices. (Only Fed level unless state adopts) o Rule: Once part of conspiracy, D is liable for any crimes committed by anyone else part of the conspiracy do if (1) in furtherance of the conspiracy & (2) reasonably foreseeable o Factors when 1 partys actions imputed on other (1) in furtherance of conspiracy itself (2) w/in scope of conspiracy (3) reasonable foreseeable to conspirators o This can pull in the lowest participants. Doesnt depend on what conspirator did or even what aware. Still might be held accountable. Deterrence value? o Diaz hes liable because bringing a gun to a drug deal is foreseeable. o MPC REJECTS PINKERTON RULE MPC: rejects Pinkerton. Wants strictly construe Ds subj intent. to get a co-conspirator you must use accomplice liability Look at JD for rules. 2 levels: o (1) purpose to agree We infer the purpose from the existence of an agreement. Not a huge barrier to prosecutors. + o (2) purpose to promote target crime We have to prove you agreed with the purpose to rob bank/murder/etc. This is where we LOSE Ds I thought we only agreed to rob the dude! I didnt know about the killing! o (1) prosecutors infer a lot. Not huge barrier. Assuming acting in group, meant to (2) More teeth. Everyone had purpose commit X. Important everyone working towards same substantive crime so Prosecutor must pick right group of people and right target CL: know agreement and conspiracy when see 2 people doing exact same thing. MPC: strong subjective focus like attempt law. No problem if D agrees w/undercover officer know intention. Focus on THIS D. Doesnt matter who other person is. MAJ RULE: Cannot intent to conspire to do an unintentional crime whether conspiracy or attempt o If you conspire to commit arson, set a house on fire, and someone dies because of it you are NOT on the hook for conspiracy to commit reckless murder or anything (unintentional crime) o CANNOT CONSPIRE TO COMMITT NEGLIGENT/RECKLESS CRIME (INCLUDING FELONY MURDER) Remember can only charge conspiracy for something agreed to do. If agree arson but then someone manslaughter not part of conspiracy Special rule when D supplier of goods. 44

MENS REA for CONSPIRACY

SUPPLIER RULE (Lauria)

2 tests case by case decision o KNOWLEDGE + INFERENCES (stake, volume, legit use, seriousness crime) Ex: Making money form it, how much business, selling something only use commit crime, how close to crime getting) o KNOWLEDGE + (1) Direct evidence of participation (2) inference (stake, disproportionate volume, no legit use) (3) aggravated nature of crime Dont need all 3, just one direct evidence might be if sell gun knowing person going to go shoot someone supplier WILL BE conspirator Cant police everyone. Courts not comfortable saying just b/c aware what services are used for crime & dont stop it conspiracy. Supplier test lowered a bit. Can be conspirator even if dont meet PURPOSE test. More than just selling stuff need more financial or active involvement such as charging more b/c you know they are using your services/goods for criminal purposes Courts weigh the following factors to determine whether a supplier had requisite purpose through knowledge (inferences of intent to further the target crime): o stake in the illegal activity or purpose (goal) to conspire o Unusual quantity/amount requested that has no legitimate use to the buyer The total volume of the suppliers business accounted for by conspirators o Legitimacy of the product supplied can it be used for anything legal? o Seriousness of the target crime of conspiracy o Supplier knows and has interest in cooperation

If goods are illegal or no other use than probably part of conspiracy. One court suggested that more SERIOUS the crime, the MORE LIKELY the crime, the MORE LIKELY the supplier will be found a conspirator simply based on his KNOWLEDGE. MPC no special suppliers rule. Just subjective test. ATTENDANT CIRCUMSTANCES and CONSPIRACY Fed Courts: Take mens rea of AC and apply to conspiracy MPC: Leave up to states States: All over the board. o Ex. Arranging drug sell and plan attack buyers after sale. Statute: purposely assault fed officer. Victim being officer=SL AC dont have to know victim officer. Purpose assault _________ SL Fed Officer (Problem: Carry over statutes SL or need P?) Fed Yes, AC is SL in conspiracy too. Some statesrequire purpose

ACTUS REUS for CONSPIRACY

[C focuses on the agreement, not the group, be careful] Agreement often inferred. Dont have written down. More orchestrated crime is, more willing infer agreement. LOOK AT CIRCUMSTANTIAL EVIDENCE TO SHOW AGREEMENT. o Ex. bank robbery-probably not spontaneous if all planned out CL: just needed agreement. Not overt act. Troubling b/c not direct evidence. No bright-line rule how much evidence need etc. [today most all JD&MPC, require overt act and agreement]

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Overt Act: Many JDs require. Some SMALL act after agreement to support idea planed to commit further crime. Doesnt have to be substantial or criminal. Only ONE person needs to make it. Using overt act when inferring agreement gives quantum of evidence o Note: Can trip prosecutors up b/c some states require and some dont. Fed gvt requires. So even if statute doesnt require might overturn on appeal. o Prof says if dont have overt act, since so small, probably dont have conspiracy MPC: the MPC requires an overt act, but it allows the severity of the crime to displace the need for an overt act (more serious the crime, the less likely a need for an overt act). The act need only be one that affects the object of the conspiracy or has a tendency to further the objective. It doesnt have to be a substantial act a la attempt.

ABANDONING CONSPIRACY CL: Not sympathetic to someone agrees be party and changes mind. You can get out by NOTIFYING your co-conspirators that you aren't participating, or by doing acts that are INCONSISTENT with the conspiracy. You dont have to tell ALL your co-conspirators you are out just some o Theory Its easy to get INTO a conspiracy, so its easy to get OUT D who abandons is still on the hook for the CONSPIRACY (agreement), just not the RESULTING CRIME MPC: 5.03 - Conspiracy ends if the crime is committed, attempted, or if no one does anything (7)(c) if advised people that abandoned or go to police then abandoned agreement. Off hook future crimes o CL approach. Guilty conspiracy but not anything going forward (6) True Renunciation. If STOP conspiracy then free liability of conspiracy and future crimes o Generally go to police and help stop it. If you THWART the conspiracy, you are good not liable for even the original agreement. o HIGH threshold and burden. Lets go back and take back intent. o Most states NOT adopted. Different than CL. SoL: if no one has done anything, it stops at end of SoL. Lot of time to pass. SUMMARY Act: AGREEMENT (meeting minds/inferred) + OVERT ACT (low bar) Mens Rea: PURPOSE to agree (sometimes inferred) + PURPOSE commit target crime o Sometimes higher mens rea for target crime in conspiracy than target crime itself b/c cant intend an unintentional crime o SUPPLIER Exception: KNOWLEDGE + INFERENCES or 1 of 3 FACTORS

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ACCOMPLICE LIABILITY = COMPLICITY

We hold you responsible for something someone else did D knowingly, voluntarily, and with common intent unites with the principal offender in the commission of a crime. CL - Assistance in fact must be given Complicity is NOT a separate crime it is a DERIVATIVE of a crime Accomplice is guilty of the same crime, just by a different pathway Accomplice DERIVES her liability from the perpetrator Attempt, conspiracy, solicitation = NOT derivatives, but instead are separate crimes Policy behind: indentifies w/other. Forfeits personal rights when chooses aid crime Since help for target crime, more robust mens rea and act requirement Punishment: o Some JD, like MPC, where punish for substantive crime for both conspiracy & AL cant be punished both b/c double-punishment o JD when conspiracy is separate charge & AL is target can punish both conspiracy & final crime Can have AL w/o conspiracy if spontaneous group start doing illegal activity. Mob. Can have conspiracy w/o AL, ie, make agreement and overt act but stop short

CL Distinguished b/t principals (person directly commits) and accessories to crime. Few felonies & all capital crimes so didnt want someone tangentially involved guilty Principal in 1st degree had to actually commit crime, caught, convicted and then go after others. Since liability derived had to get main perpetrator. So if principal died during trial, all other cases out. Procedural safeguards accomplice only convicted in certain JD (where crime took place or where helped out). Would waste resources to go down chain. Now, all except accessories after the fact are treated the same! Types of Assistance Physical conduct Psychological influence (Ill help if you need it; Sounds like a good idea, do it!) Assistance by omission (usually only occurs if there is a LEGAL DUTY involved) MERE PRESENCE IS NOT ENOUGH Amount of Assistance CL - D is not an accomplice unless his conduct IN FACT ASSISTS IN THE COMMISSION o Uttering words of encouragement to D, who does not hear them not A.L. o Opening a window to let D in, but D uses the door not A.L. o MPC 2.06(3) if you TRY to assist, you are an accomplice o Most states have adopted MPC even if your aid does not help at all, you are still liable The DEGREE of aid is IMMATERIAL it only needs to help in the slightest o Tally depriving victim a chance of life is enough The help does NOT need to CAUSE the harm even if D would have committed the crime anyway, if I helped, Im guilty o Tally If accomplice does everything they need to, and then the principal gives up for some reason, we can still get the accomplice for ATTEMPT 47

o MPC 5.01(3) o Most CL follow this MPC 2.06 and Modern Majority Law Distinctions disappeared. Anyone helps 1st party and dont worry about degree response. o Only distinction: accessory after the fact are convicted of a less serious crime. Drop 1-2 level (242.3 usually charged w misprision or hindering apprehension) Change from CL even if principal is not convicted, accomplice is still on the hook o Subjective view we care what accomplice was thinking Accomplice is guilty of same crime if the crime that occurred was a natural and foreseeable consequence To escape accomplice liability, must undo what you did or tell authorities If there is no way to undo your assistance, you must go to authorities in order to no longer be an accomplice

MENS REA for accomplice

(dual intents) D must have: 1. Intent to assist principal in the conduct of the crime 2. Mens Rea required for underlying crime. o It usually turns on #1 once we know you intended to help, we can infer the MR (and, if you cant prove #1, you usually cant prove #2) THREE Accomplice Mens Rea Problems: 1. Knowledge v. Purpose Usually, mere knowledge that your assistance will aid a crime is not enough you must have the purpose that the crime be committed o Here, take my car keys. I dont care if you rob a bank or not o Ill rent you this house I dont care if you turn it into a whore house o Beeman This is the layout of the house. I dont care if you rob it lacked the PURPOSE to commit the underlying robbery These accomplices LACK the PURPOSE that the underlying crime be committed Majority/MPC rule - mere KNOWLEDGE of what is going on is NOT ENOUGH PURPOSE is required. You must not only KNOW whats going on, but it must be your CONSCIOUS OBJECT. o Minority rule the fact that you know whats going on, and that your actions might help sufficient for accomplice liability 2. Feigning Accomplice Wilson I aided in the ACT, but lacked the mens rea for underlying crime I just wanted to set the D up so hed get caught! (lacked #2 of the test) o Wilsons calling the cops on his buddy shows he didnt have the specific intent of the underlying crime 3. Reckless/negligent underlying crime Can I be an accomplice to a negligent/reckless crime? o Ex: Giving my keys to my friend, knowing hes drunk/I encourage someone to speed, and he then hits a child 48

Majority rule If accomplice has the purpose to aid in the conduct (I purposefully give you my keys), plus the underlying mens rea (Me giving a drunk driver my keys is criminally negligent/reckless), then I am liable. Minority rule Similar to Lyerla court No accomplice liability for negligent/reckless crimes, because you cant have the specific mens rea of negligence/recklessness of the crime. MPC 2.06(4)- if you are an accomplice in the CONDUCT that causes the RESULT, and acted with the underlying mens rea (negligence/recklessness), then you are liable

MPC 2.06(4) Only go if Result/Conduct Crime When causing a particular result is element of an offense, an accomplice in conduct causing such result is accomplice in commission of that offense if he acts w/kind culpability, if any, w/respect to that result that is sufficient for the commission of offense o Note if any can be SL underlying crime under accomplice law

ACTUS REUS for accomplice

Fact specific. Court makes lots of assumptions ab what need to do. What role? Most multi-party prosecutions, clear cut but difficult when participation slight or hold accountable for omissions rather than conduct. Failure act: MPC 2.06(3)(a)(iii): Person is accomplice if: (iii) having legal duty to prevent commission of offense, fails make proper effort to do so CL: accomplice had to actually aid and assist. Not but-for, but objectively did something Modern: Moved away strict rule minimal requirement of facilitating. Even giving confidence to principal might be enough. MPC 2.06(3): Focus on subjective intent. Doesnt care if actor didnt change anything as long as try aid or attempt to aid guilty. Summary 3 cases: If have accomplice who but-for cause easy case. CL require prove causation. Today courts not as strict. As long as show helped in even remote way and made crime little bit easier - enough. o Causation: generally JDs and MPC dont require. Justifiable? Causation measures moral desert and proportional punishment but AL ignores. May be severely punished even if trivial encouragement.

Accomplice and End Result is Attempt In CL: often attempt to be accomplice. What did had to actually assist. Crime itself not attempted complicity just guilty attempt directly MPC 5.01(3): person engage in conduct designed to aid another to commit crime that would be complicity if crime committed such that guilty of attempt to commit, although crime not committed or attempted by such other person What if accomplice & principal not physically together? Principal gave up & accomplice doesnt know? Can be accomplice in TARGET crime & also in ATTEMPTED target crime. When have multiple people and 1 person supposed to help and other people give up: o 1. What is underlying crime? Completed burglary etc. o 2. Is accomplice an accomplice in THAT particular crime? o 3. If NO crime b/c principal gave up then cant be accomplice so if person guilty of ATTEMPT on own? SUMMARY of AL CL MPC

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Actus Reus

Must successfully facilitate crime. Minimally made more likely Intent to assist, generally requires purpose. Some JD use knowledge + mens rea underlying crime (can be unintentional crime if have neg/reck) Same as substantive crime. Accessory after fact much less harsh

Aid or try to aid. Even if doesnt work. VERY low reqmnt Act w/PURPOSE facilitating CONDUCT of offense and mens rea of RESULT (not much diff CL). If CONDUCT only action to be proven then need PURPOSE No discount. Guilty underlying crime. Nothing about access. after fact but aware most states use CL rule

Mens Reus

Punishment

MPC 2.06: (1) person may be guilty of an offense by own conduct and/or conduct of another person for which he is legally accountable (direct v indirect) (2) 3 ways indirect may arise (c) be an accomplice of such other person in omission of offense (3) accomplice definition. (a) mens rea: purpose of promoting or facilitating commission of offense (a)(i-iii) actus reus set out (i) solicits other person to commit or (ii) aids or agrees or attemps to aid other person planning or committing or (iii) having legal duty prevent commission or (b) conduct expressly declared by law to establish complicity JUSTIFIED/UNJUSTIFIED Accomplice If D is an accomplice to a JUSTIFIED killing or JUSTIFIED crime, then D will not be guilty via accomplice liability because the primary wrongdoer is not guity the act was justified If D is an accomplice to an UNJUSTIFIED killing or UNJUSTIFIED crime but the primary wrongdoer was determined to be insane, D will still be liable for that crime because insanity is an EXCUSE and not a justification. A crime was still committed and the accomplice aided in that crime (assuming the accomplice is not also insane)

GENERAL DEFENSES
True Affirmative Defense P proved every element beyond reasonable doubt but still not guilty. [ex. Justif./excuse] In most JD, D has burden proving. JD vary, but D to prove preponderance, clear convincing. D raises and then P disprove. Failure Proof of Defense Prosecution must prove every element beyond reasonable doubt. If they cant do that, D is not liable. Not really a defense-for some reason prosecutor cant meet their burden of proof. Ex: You cant prove my mens rea = prosecutor fails to prove all elements Offense Modifications Real defense, D meets all elements of the cdrime, but not in fact caused harm sought to be prevented 50

Statute says somebody whose otherwise involved in crime cant be prosecuted. o Ex: CL rule that victim crime cant be prosecuted as accomplice. o Ex: Statutory rape: a 15 y/o cant be an accomplice to their own rape. o Ex: pay 10k ransom to kidnapper. Not held as accomplice even though aided crime Public Policy Defenses Doesnt go to culpability, but policy more important to society For reasons PP, give people pass when truly culpable. Not less blameworthy. Ex: Statute of Limitations: After X years cant prosecute. Doesnt mean didnt do it or not proof just limit on law suits a more important policy (finality etc). Ex: Diplomatic immunity, judicial, legislative immunity. 2 Main types of defenses: Justification and Defense Justification (what D did was rightnegates social harmmight even be desirable) On your exam when you are talking about defenses, begin with justification defenses. In specific context did right thing so not illegal or wrong. NEGATES social harm Generally, Ds actions are WRONG, but, we think its GOOD here not a crime. Ex: Self defense. Committed arson by burn field but did it to prevent forest fire spread Complete defense. Therefore strict criteria. Ex of underlying structure of justification o Triggering events: circumstances must exist before actor eligible to use o Necessary: Actor must act necessary to prevent further interest o Proportional response to harm threatened limit on max harm may be used Theories behind justification: usually defended on utilitarian grounds o Public Benefit: Early CL used this. Not dominant today o Moral Forfeiture: People possess certain moral rights which may be forfeited by holder of right. Some rights not waive-able like consent to own death. o Moral Right: Conduct justified that actor has right to protect moral interest. Focuses on interests of D (whereas above focuses on wrongdoing aggressor) o Superior Interest or Lesser Harm: interest D outweigh those victim Excuse (what D did was wrongbut we understand why) Excuse: what did wrong, but we understand why. o Negates Ds blameworthiness (as opposed to justifications negation of social harm) At CL, didnt lead to acquittal, just dropped severity of crime. Often defended on non-utilitarian grounds. o Causation broad theory that factors outside Ds control. o Character punishment should be proportional to moral desert, measured y persons character. If cant infer bad character from conduct can excuse. o Free Choice: Only punish of understood facts related conduct, appreciated conduct violated societys mores. If lack substantial capacity, not moral agent (critics argues too narrow. Free choice determined at moment of criminal act) Justification v Excuse: Are different, so lawyers should be careful which use Excuse might be convicted, just lesser crime. Can acquit, but insanity=civil commitment. Justification = acquittal. Justification = NO CRIME. Excuses are specific to the PERSON. o If accomplice & justification, then no crime & accomplice goes free too. o If excuse, for ex insanity for D, then accomplice doesnt get insanity defense. Argue that gvt should carry burden of proof for justification b/c nothing legally wrong

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MENTAL CAPACITY
Can be internal (insanity defense) or external (alcohol/drugs) when mental capacity not same as regular person committing crime Rational behind treating these Ds different: o Utilitarian We cant get someone to stop their actions if they dont understand what they were doing o Retributive There is no moral desert if they dont know what they were doing Why mental capacity relevant? o Mental capacity may prevent the requisite mens rea o It could make the D act involuntary (negating the actus reus of the crime) o Excuse do we understand why this fucked up person would do such a thing? Evidence of Mental Capacity can be introduced in three ways: o Insanity (discussed lower) o Mens Rea variant Failure of Proof defense Hendershott Courts are willing to use this o Partial responsibility variant impairment is used to reduce the severity of the punishment This is only used in HOMICIDE cases (looks VERY much like involuntary manslaughter EMED cases) Lower level of responsibility for those with mental impairments Most states allow this

INTOXICATION [good ex of how law looks at D claiming incapacity but less sympathetic] On an exam, first determine if its voluntary or involuntary intoxication. You admit that D had the requisite mens rea But, this is an AFFIRMATIVE DEFENSE D did EVERYTHING you say he did, but you STILL cant punish him o LAST DITCH EFFORT o RARELY BROUGHT UP, and even RARER TO WORK VOLUNTARY INTOXICATION almost never an excuse Little sympathy. Generally voluntary and not completely unforeseeable. General Rule: In JD giving any sympathy to intoxicated D - only for SPECIFIC INTENT crime. Must demonstrate didnt have specific intent to commit crime [whether jury believe another story] I was so drunk I didnt have the specific intent Cannot be used as a defense for GENERAL INTENT crime (morally culpable state of mind) o Ex. D drunk, sexually assaults V, charged specific-intent rape. CL entitled introduce evidence prove lacked specific intent b/c too drink to know doing and mistakenly believed consented. o But, as seen in Cameron, there may be an extra procedural hurdle must convince JUDGE to allow evidence showing intoxicated state Today: o 18 states abolished intoxication as relevant to anything (Montana v. Englhoff) o NC follows traditional approach. Use for specific intent. Can still be prosecuted for lesser offense that doesnt require specific mens rea o If can prove long-term use causes permanent brain damage court may permit MPC 2.08: similar CL but slightly stronger reason for dividing line b/t P/K and R/N (1) Intoxication is not defense unless it negates an element/mental state of the offense 52

(2) When mens rea requires recklessness, if due to self-induced intoxication actor unaware of risk unawareness is immaterial [i.e. cant negate R] o If you WOULD have understood the risk but for being drunk, you dont get a pass. Consistent with the subjective approach of the MPC o Draws line b/t P & R. Much clearer CL but same result = use intoxication negate P/K but not R.. Ds moral culpability is getting drunk-so unaware risk immaterial (3) Can use as affirmative defense if at time (a) not self-induced or is (b) pathological if actor lacks substantial capacity appreciate criminality or conform conduct to requirements of law INVOLUNTARY INTOXICATION intoxication is involuntary if: o D ingested the toxicant without knowledge (like a rufee) o D was forced to take the drug (such as injecting someone with heroine against their wishes) o D is taking a prescribed medication and then has an unforeseeable un intended intoxicating response because of an allergic reaction Here most courts will permit the claim of involuntary intox as a defense to both specific and general intent crimes D can also claim insanity by involuntary intoxication if he can satisfy that states definition of insanity

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INSANITY DEFENSE = NGRI = EXCUSE [not justification] true affirmative defense

Recognized by 46 states and the federal govt as an excuse 8th amendment prevents the death penalty for the insane The conceptual intermingling of psychiatry and the law. Conflicting objectives. D generally doesnt argue didnt have mens rea just that situated differently so shouldnt be held same level and treated like another D Burden: Since 1980s majority of states and Congress place burden on D to prove insanity Policy: U: rehabilitation not furthered in prison. An insane person cannot be rehabilitated. Acquittal based on civil commitment is better than imprisonment for a term of years for society as a whole. R: free will seriously undermined. If no control over personhood, shouldnt punish. Wouldnt punish a child for spilled milk! No self-control = no just desert. o Mental illness - medical concept, insanity - legal term. Can be mentally ill and not insane, and vice versa. Lots of mental ill in prison Procedural issues: o NGRI is NOT acquittal. Almost always involuntarily sent mental heath institution Ex: NC if serious crime sent directly to institution. No civil hearing. Burden on state show D threat, then D must prove no longer danger to society and self. Might stay there longer than prison sentence. If less serious crime then on hold and civil commitment process to evaluate Involuntary commitment, State must prove: (1) mental abnormality & (2) dangerousness by clear and convincing evidence (sometimes lesser std) o Insanity defense not used or work often. Generally when dispute over whether insane b/c the obvious ones, parties just agree up front and sent to institution o Lots of prelim procedures to give notice to court ahead of time if want to raise defense Competency to stand trial wont proceed if not. D is competent if he can consult w/lawyer w/reasonable degree rational understanding proceedings Raised before or during proceedings. State presume competency, require prove other w/preponderance of evidence If judge determines incompetent, suspended, D committed until regain. If cant be restored some issue SC ruled DC requires nature/duration of commitment bear some reasonable relation for purpose committed Can use drugs restore ONLY if treatment medical appropriaterare meet o D spends trial rebut sane then spend life prove sane to get out of institution DIFFERENT TESTS MNaghten: Test: At the time of the act, the defendant was mentally diseased and o 1) did not know the nature and quality of the act, OR o 2) did not know what he was doing was wrong. Typically courts interpret wrong as a moral wrong in the eyes of society but sometimes interpreted as legally wrong o REQUIRES complete lack of cognition Oldest test and most common test Focuses on Cognitive ability Very strict requires complete lack of cognition for a D to use it to escape liability o D must be laboring under a mental disease AND didnt know what was going on complete lack of awareness Criticism: 54

o Strict test: focus only on cognitive and not volitional or emotional impairments o Not D-friendly. All-or-nothing. Doesnt incorporate shades of cognition. Unrealistic o Wrong? Legally or morally wrong? JDs battle over o D must completely not understand. High threshold. Irresistible Impulse: MNag test with an added 3rd prong : Did the mental disease prevent the D from controlling his conduct (even if he knew the conduct was wrong)? o Includes VOLITIONAL component o Is D powerless to stop his actions? Did the disease prevent D from having control? Criticism: Impulse language confused juries - had trouble letting people go when not sudden/explosive. They thought the defense was limited to impulsive/not planned behavior. Product Test/Durham: Test: accused not responsible if unlawful act product mental disease/defect o Were Ds actions a PRODUCT of the mental disease? Encompassed part of the control test Put heavy emphasis on expert testimony Criticism: why need judge/jurors? 100% determined by psychiatrist testimony and no role fact-finder. Also problem when medical labels changed quickly trial by label. Mental health professionals favored. Lawyers v Psychiatrists battle. Different goals? MPC TEST 4.01 (ALI TEST): (widely used until Hinckley Assassination) (1) D is not responsible if at time conduct, as a result of mental disease/defect, D lacked substantial capacity to either 1) appreciate criminality of conduct [wrongfulness] or to 2) conform conduct to requirements of law Combines 2nd prong of MN test (cognitive incapacity) w/irresistible impulse test (cant control actions). Broader - Dont have to demonstrate COMPLETE incapacity & that D knew conduct wrong, Substantial incapacity is sufficient to mount this defense. Appreciate instead of know conveys broader sense then simple cognition. Child might know pulling trigger wrong, but doesnt appreciate deeper sense Wrongfulness accepted as what community regards as wrong. Volition in terms of capacity conform to law. Disting. incapacity & mere indisposition MPC dominant test in 1960s prior to the Reagan assn attempt. FEDERAL LAW (POST-HINCKLEY) TEST (nearly the same as MNaghten) Test: As a result of severe mental disease or defect, defendant was unable to appreciate the: 1) nature and quality, or 2) wrongfulness of the act. Enacted after Hinckley shot Reagan, and successfully used the MPC/ALI defense Very Strict Requires Total Incapacity (like MNaghten) Abolished the volitional prong of the MPC test Mental disease must be severe Most states adopted this some simply dropped the control part of the MPC test So, for most states, Hinckleys defense of I couldnt control myself! would not fly Guilty but mentally ill (GBMI) Some jurisdictions have created a fourth verdict Guilty, Not Guilty, NGI, and GBMI GBMI D cannot use an insanity defense, but we realize that he needs some sort of treatment o D receives the normal sentence, but gets treatment first if he is cured then he spends the rest of his sentence with the general prison population o Some D spend entire sentence getting treatment

55

Criticized: Advocates mental health worried swamp insanity defense and jurors will never say NGRI b/c feel like letting off hook. States dont have resources for prisoners. Some evidence of this.

56

DIMINISHED CAPACITY
Admission of a mental impairment to negate the mens rea of a crime Not enough evidence for insanity, but argue at time crime impaired Might use if dont want to be institutionalized and want acquittal (negate mens rea) CL - Use evidence 2 ways: Mens rea variant: Failure of proof defense. Negate mens rea element [like intox/mistake]. If successful, Prosecution failed to prove beyond reasonable doubt & acquitted o Some JD hold less serious crime. Specific general offense o Concern: nothing demanding person get treatment back on street. Partial Responsibility: Separate defense/excuse. If prove DC, reduce level crime D guilty of b/c less culp. Ex. 1st involuntary manslaughter. Like provocation. Controversial. Used occasionally in homicide. Used to be law in Cali. Mens rea majority in US. Use partial responsibility, if at all, in states w/MPC 210.3(1)(b) MPC 4.01 A person is not responsible for criminal conduct if, at the time of such conduct as result of mental disease or defect he lacks substantial capacity either to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the requirements of law DC is like EMED argument & not separate insanity. Similar evidence like provocation. Incorporates mental disturbances and emotional heat of passion. Hard rebut negligence, so usually just works w/P/K/R. Drop murder manslaughter. Only really used in homicide. Cleaner. Allow D make best argument. 4.01 does not apply to antisocial behavior 4.02: permits into evidence of mental abnormality whenever relevant prove D didnt have state of mind which is element of offense Many states suspicious DC evidence. Trial judge has leeway kick out or mandate that can only be used if establishing insanity defense

SELF DEFENSE
(quintessential JUSTIFICATION defense)

4 ELEMENTS
1. Reasonable belief in right use of force. [NC law person or ordinary firmness] o Jury must determine D subjectively believed he needed use deadly force and (2) an objective Reasonable person in same situation would have possess this belief. o The D does not have to actually be correct, it just must be reasonable that he believes the force is necessary 2. Necessary force to protect self o Ex. Robber has gun and wants candy, possibly give him the candy rather than shoot him. Might not be necessary to shoot him. If STAND YOUR GROUND state, then OK to shoot him. 3. Proportional amount of force [i.e. if get punched, cant shoot]. Use non-deadly repel nondeadly. Never permitted use deadly to repel non-deadly. 4. Imminent harm at moment lots debate over this whether has to be split second IMPEREFECT SELF DEFENSE: See Norman. Results in MS. 2 types. (1) Non-deadly aggressor who is V of deadly response must retreat to any place safety before using deadly force. If fails to do so, right SD imperfect 57

 (2) If kill another b/c unreasonably believes justified, guilty of involuntary manslaughter Can be used to negate mens rea (failure of proof) or as excuse to mitigate culpability MPC 3.04 (must combine with 3.09): Unlike CL: SD is ok if it is immediately necessary. Drafters wanted to broaden timeframe of allowing SD by phrasing it immediately necessary instead of imminent. Unlike CL: drafted in terms subjective belief of need use force, need not be reasonable. But 3.09 modifies and reincorporates reasonableness component. If D negligently believed there was an imminent threat, then D may be convicted of negligent homicide. This is a partial defense. Not justified if provoked encounter OR if could have avoided necessity by retreating o MPC categorizes the threatened harm into two categories: Fear of serious injury/death Forcible rape/kidnapping Kidnapping is controversial Biological father taking his child across state lines during a custody dispute can you KILL him? Problems w/using self-defense: o Who is aggressor? Typically, the aggressor cant use SD. Issue of TIMEFRAMING when does the initial aggressor become the victim? o Issue of retreat: the common law required that the defendant show she had no opportunity
to retreat of that she unsuccessfully sought to use an available opportunity

Exceptions to retreat: Retreat is demanded only if it can be done in complete safety. Castle doctrine: there is no duty to retreat if the D is attacked in his own home o Problem: What about domestic violence? MPC Retreat D must retreat, surrender possession of a thing demanded by another a claim of right to it, or with a demand that she abstain from any action she has not duty to take, if the D knows this can be done in complete safety. o Stand Your Ground rules some jurisdictions are now establishing these type of laws that say you can use deadly force to combat deadly force and retreat, even if available, is not required. States are expanding SD (FL) if you are acting lawfully in a place you are lawfully allowed to be, you can respond with force to prevent a forcible felony. Encourages Vigilante Justice Trayvon Martin Make sense for those who NEED it (ex: battered womens attackers track them down at work) H: D cant use self-defense argument. Aggressor and not being threatened. State v Norman (1989) NC traditional approach to self-defense H: SC said D cant use self-defense. Jury convicted manslaughter so thought provoked Perfect self defense: o Imminent danger of great bodily harm, o Reasonable person (person in similar circumstances & w/ordinary firmness) o Person using cant be aggressor

Imperfect Self Defnese

o Used when initial aggressor didnt have intent kill but starts hitting person, then person pulls out weapon & escalates to deadly force & original aggressor defend o Not a pass but mitigate intentional murder to involuntary (like provocation) Prosecutor argues no imminent danger asleep & drunk. She is initial aggressor. 58

Defense argues 25 years of non-stop violence then just b/c asleep aggression hasnt stopped. Time-framing. 24 hours before killed, tried kill herself, got counseling and started warrant process, he threatened kill her, no one stopped him. Dissent: Whether something imminent depends on perspective. Reasonable person might say no but reasonable person in her shoes might perceive as imminent Policy: court chose strict interpretation. Tension b/t court responsibility to decide this case only & make sure dont create loophole for other people walk through. Dressler extreme duress excuse: better category than self-defense. Argument for excuse that its personal to her. [justification would allow 3rd party help and excused]. o Whether see as justification or excuse depends on underlying views of self-defense. If everyone has right to self or property looks like just. Why JTs safety outweigh hers? But if sanctity of life underlies everything in law then cant undermine life to self-defense. Life-preservation focus of Dressler. Krause no Semester theme: Fight over what gets to jury b/c once gets there dont know what do with it. Jurors generally get answer right even if for wrong answer. Policy behind: o U: Killing in SD may be socially desirable. Better aggressor die. But often both actors intoxicated, so not really good and bad. Preserve life-stop unlawful aggression o Other: Justifiable b/c aggressor forfeits right life. Breaches respect natural rights. Innocent person right life supersedes aggressors.

DEFENSE OF NECESSITY/DURESS
Lessor of Two Evils D committed a crime, but was not free to choose Necessity JUSTIFICATION defense applies to NATURAL threats - LAST RESORT defense (and thus should be the LAST defense discussed on the exam only if no other defenses are relevant given the fact pattern) D must have been o Faced with a clear and imminent danger (State v. Warshow) o Expect, as a reasonable person, that his action will be effective in abating the danger that he seeks to avoid/must be a direct relationship between his action and the harm to be averted o There must be no effective legal way to avert the harm o The harm caused by violating the law must be LESS SERIOUS than the harm prevented o Lawmakers must not have previously anticipated the choice of evils and determined the balance struck between the competing values in a manner in conflict with the Ds choice o D must not have substantially contributed to the emergency/wrongfully placed himself in a situation in which he would be forced to engage in criminal conduct Ex: Driving on a suspended license to take someone to the hospital, speeding to pass someone so an ambulance can pass Traditionally, there were limits on the defense of Necessity: 1. External force that caused your criminal action must be NonHuman 2. Necessity CANNOT be a defense for homicide/murders 59

3. Some jurisdictions limit the defense to protection of persons and property (cant act to protect reputation/$$ interests) 4. Most courts hold that the defense of necessity is NOT available for the crime of murder The Queen v Dudley and Stevens It is never a defense to kill 1 person in order to save multiple people Utilitarian views- Balance it out for society. It is OK to kill one person to save 3 (Regina)society comes out on top! But, where does the calculus end? Can 1 person kill another to simply save himself? The end justifies the means. (Justification) BUT flipside a rule authorizing these killings would result in MORE social harm we crimes of necessity to be the LAST RESORT dont want to give the green light for these crimes Excuse Criminalizing these actors cannot DETER future actors people cant be deterred from doing many of these crimes Retributive Views- Moral/rights based view Its not justified to commit a crime/take a life he has just as many rights as you . Cant elevate your priorities over someone elses. So, these actions are not JUSTIFIED. May be EXCUSED though we UNDERSTAND why you did it. D should not be blamed for giving in to coercive factors that almost anyone would succumb to. Hypo: 2 people climbing a mountain were roped together. One falls and the other hangs onto the side of the mountain. Just before the climber cannot hold on any longer, he cuts the rope and the hanging climber falls to his death. Is this different than Dudley & Stevens case? MPC 3.02 Broader than CL Can be Human or Natural MPC still requires the harm committed be less than the one avoided, must be necessary, and must not already be contemplated by the legislature. Does NOT require immanency! D does NOT automatically lose if he was at fault in creating the situation! o MPC says the defense is unavailable if, by acting reckless, he created a situation in which he had to act even more reckless All forms of necessity qualify Not limited to Natural Harm, you are allowed to use it in homicide DEFENSE OF PROPERTY CL deadly force may never be used to protect personal property DEFENSE OF HABITATION CL is incredibly broad here but rarely used by states Allows a D to use deadly force in the defense of his home as long as o D reasonably believes that the invader was imminently AND unlawfully about to enter the dwelling AND deadly force is necessary to prevent that intrusion In most jurisdictions today, there is an additional requirement: o The D must also reasonably believe that the intruder intends to commit a forcible felony when he enters (robbery, rape, arson, murder, etc.) LAW ENFORCEMENT DEFENSES TO DEADLY FORCE Deadly force is justified in crime prevention and prevention of escape Deadly force may never be used to prevent a misdemeanor 60

Under CL, a LEO may use deadly force to prevent a felony if the LEO reasonably believes deadly force is the only way to prevent that felony from occurring o At CL, this rule could be used for ANY felony Today, deadly force may be used only when a LEO reasonably believes it is required to prevent forcible felonies LEO may use force to effectuate the arrest o Under CL, LEO could use deadly force during the arrest or to prevent any escape of a felon for any felony o LEO did not even need to prove that the deadly force was necessary TN v Garner SC ruled that bringing a criminal down by use of deadly force constitutes a violation of the 4th amendment right protecting citizens from unreasonable search and seizure unless the officer meets more stringent requirements than established in the original CL. There are no bright line rules here and each case must be examined individually. If there is a risk to officers or others is a large element when considering whether the use of force was appropriate. States have moved towards not allowing police to use deadly force to prevent escape unless the felony involved was a forcible one and ONLY if such force is reasonably necessary to prevent such felon from escaping

DURESS - Gun to your head/familys head commit the crime! ONLY applies to HUMAN threats EXCUSE Not Justification CANNOT BE USED FOR HOMICIDE CRIMES

Elements: D can use the defense of duress when 1. Another person threatened to kill/grievously injure the actor/3rd party (PERSON must be threatening, CL is now broadened from just family) 2. The actor reasonably believed that the threat was genuine 3. The threat was present, imminent, and impending at the time of the criminal act a. Threat of future harm is insufficient 4. There was no reasonable escape from the threat except through compliance with the demands 5. The actor was not at fault in exposing himself to the threat Utilitarian Rationale of the defense as an excuse: Cant deter when a person is in thrall to some coercive power, the threat of punishment is ineffective Societally, its better to save an innocent victims life than commit a lesser crime such as robbing someone so, giving in to your coercer has a net benefit o BUT utilitarian argument AGAINST if we say its OK as an excuse, cant a D just use a threat as an excuse to do any crime and not be culpable? Invites collusion Retributive Rationale of the defense: Coerced actor does DESERVE to be punished actions are not indicative of their moral character o At some point, we face consequences that ANY person would succumb to o Its not fair to punish someone as culpable for doing what ANY ONE would do Committing a crime to save a life is DIFFERENT from committing a crime. 61

 Its not VOLUNTARY! He is not acting under his own free will MPC 2.09 Duress broadens CL No immanency requirement o As long as a person of ordinary firmness would have committed the crime in Ds shoes, the defense is available General applicability Defense MAY be used in homicide crimes No requirement for the threatened person to be a family member/D himself If the D negligently placed himself in the situation, the defense is available for all offenses except those for which negligence suffices to establish culpability MPC says the defense is unavailable if, by acting reckless, he created a situation in which he had to act even more reckless

Self Defense and Battered Women

State v. Norman lays out current state of the law in NC and other states battered women who kill their abusers during a non-confrontational exchange may not be able to use SD b/c NC requires: presence of (1) Imminent harm and (2) Necessity to respond to avoid bodily injury and NC and other courts have found that battered women fail on these two prongs Courts use an objective, not subjective standard to evaluate imminence and necessity, when it may be more appropriate to use a subjective approachwhat would a battered woman in Ds position do and how would she have evaluated the situation? A reasonable person is terrible at evaluating the threat of violence but a battered woman knows when she will be abused again at the hand of her abuser The court also notes that NC and other state laws dont allow D to be the initial aggressor if D will use SD the abuser is asleep and not abusing, so D would be the initial aggressor in non-confrontational SD killings NC court adopts Dresslers position, which is that the BWS (battered womens syndrome) argument fails to meet the requirements of imminent danger and necessity o Dressler suggests that duress would be a more appropriate way to deal with domestic violence victims that kill their abusers in non-confrontational encounter Issue with this argument is that the batter woman who kills her abusive husband thinks she had done the right thing (justified in killing) where duress would make this an excuse does not match up Krauses article indicates that mistakes about immediacy are made throughout criminal law, and in other applications of SD; the standard for evaluating the reasonableness of the threat should be a subjective standard; imminence shouldnt be an issue because the abuser can wake up at any moment and abuse again There is some objectivity and subjectivity required in any evaluation of an SD case Ex: a large aggressor threatens a smaller victim we have to take into account some physical characteristics of the defendant Testimony about BWS complicates the situation because these experts indicate that these women are not acting rationally because they stay with their abusers but the court expects these women to act as reasonable, rational actors o In Norman, dissent points out that D has exercised her rational options and has nothing left to do and nowhere to go Often governors will use clemency to let these women off o The traditional model of SD is the one-shot aggressor and responder, but altercations between people with complex histories make for complicated SD cases because of these issues of subjectivity, imminence, and necessity 62

B/c SD is a justification, the threshold is higher b/c D gets offif SD were an excuse, the threshold would be lower b/c D would be accused of some crime o But perhaps the standard is too high for BWS (Krauses view) o Evidence: prior abuse is often let in by courts, though this wouldnt be the case in other SD situations; expert testimony re: BWS is typically allowed Utilitarian perspective: may defend the killing of an abuser on the ground that the abuse poses an ongoing threat to the woman and may to other people death results in net social benefit Moral forfeiture perspective: b/c of the abusers ongoing conduct, he has forfeited his right to life (alluded to in dissent in Norman) o Protect autonomy: a battered woman has the right to pre-emptively kill her abuser to protect her autonomy Stand Your Ground Statutes: if you are attacked, you have the right to stand your ground and respond; use SD to help you regardless of where you are, as long as you arent taking part in illegal activities FL statute expands the castle doctrine to say essentially you dont have to retreat anywhere o Battered women were used as a justification for the expansion of castle doctrine to Stand Your Ground statutes o FL statute: expands traditional SD to defend against any forcible felony selfhelp, vigilante justice; imminence and necessity are arguably not required by the FL statute o NC statute requires imminence; deadly force is only allowed under certain circumstances, proportionality is required retains some of the traditional Stand your ground language but doesnt go as far as FL Justifications for SYG: right should never give way to wrong; no retreat rule sends a positive deterrent message to criminals that they threaten innocent people at their own risk o MPC: a person may not use deadly force against an aggressor if he knows that he can avoid the necessity of using such force with complete safety by retreating; subject to many exceptions

CASES
Actus Reus
Proctor v. State Pg. 6 A criminal conviction requires an illegal overt act Jones v. US Under some circumstances, the omission of a legal duty owed by one individual to another, where such omission results in the death of the one to whom the duty is owed, will make the other chargeable with manslaughter US v. Maldonado Pg. 8 A person charged with cocaine in his room constructively possesses the cocaine where the persons knowledge of its existence can be reasonably inferred. State v. Barger A person may not be found guilty of possessing or controlling digital images of sexually explicit conduct involving a child based on evidence showing only that he person searched for and found such images through the internet on his computer. 63

Lawrence v. Texas Pg. 8 A statute making it a crime for two adult persons of the same sex to engage in certain consensual intimate sexual conduct violates the due process clause People v. Newton Pg. 8 The criminal act of which a defendant is accused must have been voluntary for a conviction to be legitimate Martin v. State Pg. 7, 8 Under a public drunkenness statute, a voluntary appearance by the accused is presupposed. People v. Grant A person is not criminally responsible for his acts if he has no conscious control over them Robinson v. California Pg. 9 States may not outlaw the condition of narcotics addiction Johnson v. State Mothers may not be convicted of delivering narcotics to their newborn children through the umbilical cord during the birth process Keeler v. Superior Ct. of Amador County Pg. 5 Causing the death of a viable fetus is not a homicide US v. Hudson and Goodwin US courts may not exercise common law jurisdiction in criminal cases. Rogers v. TN A judicial alteration of a common law doctrine of criminal law violates ex post facto principles only where it is unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue Chicago v. Morales Pg. 9 A statute providing penalties for criminal conduct is unconstitutionally vague if it fails to give sufficient notice regarding the type of conduct prohibited

Mens Rea
People v. Dillard Knowledge that a firearm is loaded is not an element of the offense of carrying a loaded firearm in a public place. US v. Wulff Absence of a requirement that the govt must prove some degree of mens rea for a felony conviction violates due process. Lambert v. California pg. 18, 19 One may not be punished for a failure to register as a convicted felon unless the state can show 1. Circumstances that might move one to inquire as to the necessity of registration or 2. Actual knowledge of the duty to register. Law was changed after he was convicted but he had no way of knowing the change Regina v. Faulkner One is criminally liable for a crime collateral to an intended crime only when it is a natural and probable consequence of the intended crime Regina v. Prince Pg. 16, 17 Where a statute does not make mens rea an element of a crime, knowledge of the pertinent facts is irrelevant People v. Ryan 64

Laws against drug possession include a mens rea element for the weight of the drugs (mushroom case) People v. Bray Pg. 19 In a non-strict liability crime, lack of knowledge of facts necessary for criminal intent exculpates the defendant US v. Baker Pg. 19 Ignorance of the law is no excuse Cheek v. US Pg. 19 A subjective misunderstanding about the law is a defense to willful evasion of taxes Commonwealth v. Twitchell Pg. 18 Mistake of law can be a defense when the govt. official charged with enforcing that law has issued a mistaken or misleading ruling about the law upon which the defendants relied. Hendershott v. The People Pg. 49 Opinion evidence of a mental impairment due to mental disease or defect may be admitted to negate the mens rea for a nonspecific intent crime such as third degree assault State v. Cameron Pg. 49 Voluntary intoxication may be a defense to a charge of assault, illegal weapon possession, and resisting arrest. Montana v. Engelhoff State legislation defining mens rea to eliminate the exculpatory value of voluntary intoxication is not unconstitutional

Causation
Regina v. Martin Dyos Ones act cannot be held to be the cause of death of another if the death would, or could, have occurred without the act R. v. Benge Criminal liability may be imputed where the causal chain is dependent upon negligent omissions of others Hubbard v. Commonwealth Criminal liability for death arises only where death or serious bodily harm was the probable and natural consequence of the accuseds act Commonwealth v. Rhoades One is criminally liable for the death of another only if his action was the proximate cause of death, i.e., a cause which, in the natural and continuous sequence, produced the death, and without which the death would not have occurred. Commonwealth v. Root The tort liability concept of proximate cause has no proper place in prosecutions for criminal homicide and more direct causal connection is required for conviction US v. Hamilton A person is guilty of homicide where, even though a wound he inflicts on another is not in and of itself fatal, he thereby sets in action a chain of causation which results in the victims death Stephenson v. State Persons are responsible for all consequences resulting from a single criminal program People v. Kevorkian 65

 Providing the means for anothers suicide is not murder Commonwealth v. Levesque A duty of reasonable care is imposed on a criminal defendant who creates a lifethreatening risk to another.

Intentional Homicide
Francis v. Franklin A jury instruction may not imply that a defendant must disprove intent to kill US v. Watson Pg. 24 Murder may be proved absent evidence of what occurred in the few moments prior to the fatal assault People v. Walker A homicide occurring while the killer is in an excited, irrational state, is properly charged as manslaughter Ex parte Fraley An objective standard will be used in gauging the cooling down period for murder versus manslaughter Rowland v. State The proper charge against one killing a spouse in a reaction to witnessing adultery is manslaughter, not muder. People v. Berry A party who kills his victim in the heat of passion induced by a prolonged period of taunting and provocation can be guilty only of voluntary manslaughter People v. Wu Evidence of a Ds cultural background is relevant on the issue of the mental state required for murder

Unintentional Homicide/FM
Commonwealth v. Welansky Considered disregard for the safety of others is sufficient for the sort of recklessness that may support a manslaughter conviction State v. Williams Where the failure of a person to act while under a duty to do so is the proximate cause of the death of another, that person may be convicted of involuntary manslaughter, even though his conduct was no more than ordinary negligence. Mayes v. People An act done with an abandoned and malignant heart causing death may be murder, even if death is not intended State v. Martin Pg. 30 A defendant is liable for felony murder only if the death is not too remote, accidental in its occurrence, or too dependant on anothers volitional act to have a just bearing on the Ds culpability People v. Hickman Pg. 30 The FM rule applies when a homicide is committed by an arresting officer People v. Gladman Pg. 30 res gestae Whether a killing occurs during the immediate flight from a felony, and therefore may constitute FM, must be decided from a consideration of all relevant circumstances People v. Cavitt 66

The crime of FM requires a logical nexus between the killing and the felony but does not require the killing ti have furthered the purpose of the felony State v. Shock The words other felony in a FM statute refer to some collateral felony and not to those acts of personal violence to the deceased which constitute an element of the murder itself

Capital Murder
Olsen v. State When jury instructions as to mitigating circumstances do not correctly state the law, a sentence of death will be set aside Tison v. Arizona A FM conviction may be based on engaging in a felonious enterprise carrying a high degree of risk of harm, even if no intent to kill exists McCleskey v. Kemp Statistical evidence of racial bias in the imposition of capital punishment does not make capital punishment unconstitutional

Self Defense, Necessity, and Duress

People v. La Voie One reasonably in fear for his safety may use deadly force against the source of the fear People v. Gleghorn If an attacked person defends himself so successfully that the attacker is rendered incapable of inflicting injury, there is no justification for further retaliation State v. Leidholm A person acts in self defense if, under the circumstances perceived by that person, such acts appeared necessary to protect him from imminent harm People v. Goetz A persons use of force in self defense must be objectively reasonable TN v. Garner Pg. 58 Deadly force may not be used to prevent escape unless the officer harbors a goodfaith belief that the suspect poses a significant threat of death or serious injury to the officer or others People v. Ceballos A person may be held liable criminally or civilly under statutes proscribing homicide if he sets upon his premises a deadly mechanical device and that device kills or injures another Regina v. Dudley and Stephens Pg. 56, 57 It is not legal justification to kill another to save oneself in the absence of selfdefense People v. Unger The defenses of necessity and compulsion are available in escape cases and the jury should be so instructed where evidence adduced at trial is sufficient to raise the defense State v. Warshow Pg. 56 Necessity will justify criminal behavior only where the danger sought to be avoided in imminent 67

State v. Crawford The defense of duress requires an imminent threat to the person being coerced, and that the fear created by that threat be reasonable. State v. Hunter Duress is a defense to FM

Mental Illness as a Defense

People v. Serravo A defnse of insanity based on the MNaghten rule is defined by a defendants inability to distinguish right from moral wrong as opposed to legal wrong Smith v. State A fact-finding may hold a defendant to have been legally sane even when a preponderance of expert medical testimony is to the contrary

Attempt
State v. Lyerla Pg. 35, 47 There is no crime of attempted second degree murder People v. Stone A person who shoots into a group of people, intending to kill one of the group, but not knowing or caring which one, can be convicted of attempted murder People v. Murray An actual attempt to commit an offense is manifested be acts that would end in the consummation of the particular offense but for the intervention of circumstances independent of the will of the defendant McQuirter v. State An attempt to commit assault with intent to commit rape is merely an attempt to commit rape that has not proceeded far enough to constitute an assault People v. Rizzo An attempt to commit a crime requires an act tending, but failing, to effect its commission, which encompasses only those acts that are so near to the accomplishment of the crime that in all reasonable probability the crime itself would have been committed but for timely interference People v. Staples Abandonment is no defense to a criminal charge of attempting to commit a particular offense People v. Lubow One is guilty of statutory criminal solicitation if he solicits, requests, commands, importunes or otherwise attempts to cause another person to engage in conduct constituting a crime with the intent that said other person engage in such conduct. Booth v. State A person cannot be convicted of attempt when the act attempted would not have been criminal if completed People v. Dlugash Impossibility is no defense to an attempt conviction People v. Thousand Pg. 38 Impossibility is not a defense to a crime of attempt

Complicity
State v. Ochoa 68

When one in a group altercation becomes aware that deadly force is being used, he becomes an accessory to the use of that force State v. Tally One who interferes with the relaying of potentially life-saving information is an abettor if a homicide results State v. Formella An individual can be held criminally liable as an accomplice where the individual terminates his complicity prior to the commission of the offense but does not wholly deprive the complicity of its effectiveness People v. Beeman An aider or abettor must act with the knowledge of the criminal purpose and with an intent to facilitate the commission of the offense Wilson v. People One cannot be an accessory to a crime unless he has the intent that the crime will actually proceed successfully State v. Etzweiler Guilt as a principal requires that the accomplice aid the primary actor in the substantive offense with the purpose of facilitating that offense State v. Christy Pontiac-GMC, Inc. A corporation may be held criminally liable for a specific-intent crime US v. Hilton Hotels Corp As a general rule, a corporation is liable under the Sherman Act for the acts of its agents in the scope of their employment, even though such acts are contrary to general corporate policy and/or express instructions to the agent.

Conspiracy
State v. Verive A D may be convicted of both conspiracy to obstruct justice and an attempt to obstruct justice Griffin v. State A conspiracy may be inferred where two or more persons pursued the same unlawful object, each doing a part so that such acts were connected, though independent. US v. Reico A conspiracy does not end automatically when its object becomes impossible to achieve People v. Lauria Pg. 42 A supplier does not necessarily become a part of a conspiracy to further an illegal venture by furnishing goods or services that he knows are to be used for criminal purposes, where the crime involved is a misdemeanor US v. Diaz Pg. 41 One may be convicted of conspiracy to use a firearm in relation to commission of a drug trafficking crime even if he did not know his accomplice was bringing a gun US v. Caldwell Having a common drug supplier does not constitute sufficient evidence of a single conspiracy US v. Neapolitan Under the RICO statute, it is not necessary that a defendant had personally agreed to commit two predicate acts. 69

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