Criminal Law Beale Fall 2011 Outline

Policy Goals of punishment: o Retribution people who make evil choices must pay o Deterrence people will be deterred from criminal behavior when they see consequences o Incapacitation to prevent people from committing further criminal acts o Rehabilitation curing people so they dont continue to commit criminal acts o Denunciation societys condemnation of a crime; informs + stigmatizes Legality All have to do with 14th and due process Look at legislative purpose + history, effects of the proposed interpretation Principle of legality: cant be convicted and punished unless conduct was already defined as criminal o Limit on states power to modify made bargains o Fair warning interpretation needs to be foreseeable o Balance of powers up to legislature to define crimes, judges cant interpret beyond what they intended Void for vagueness: statutes must be sufficiently clear and precise o Vague laws may be applied selectively/arbitrarily overbreadth invades liberty, punishes innocents. Also consider notice o Rule of lenity: ambiguous statutes should be biased in favor of accused only tiebreak if no more than a guess
Commonwealth D harassed lady through phone. Ct held that it violated common law offense Keeler D intentionally stomped lady to make her lose baby. Ct held that legislature said fetus =/= human Papachristou very broad vagrancy ordinance, held to be too vague Cass vehicular homicide, same Q as Keeler. Prospective looking instead of strict construction (Keeler) Morales loitering ordinance to crack down on gangs. Didnt sufficiently limit police discretion Muscarella what legislation meant by carries a gun. Said interp would make gap in law when in cars

Actus reus Actus reus: both the conduct and the harmful result physical/external part Result crime: purpose to prevent/punish harmful result; murder Conduct crime: prohibited actions, no result required; DUI Act must be voluntary, very broad interpretation o A voluntary act leading to loss of control may still result in criminal culpability (e.g., intoxication)
MPC 2.01(1), (2), (4) Martin officer took him from home to highway, arrested for public drunkenness. Not voluntary Utter former soldier who stabbed son b/c approached from behind, claimed conditioned response. Alcohol led to unconsciousness no complete defense

Omissions

An omission of a duty owed to another can sometimes be prosecutable, if that duty is legally required. This must be a legal duty, not simply a moral duty. o Statute imposed o Certain status relationship protector o Contractual duty to care for another o Voluntarily assumed care and secluded other to prevent from aid o Creates harm of risk for another Reasons for restriction: possible reasons for inaction, drawing the line of fault, making matters worse, issue of freedom to act Misprision of a felony: no duty to inform police of another persons plans, requires active concealment
MPC 2.01 (3) Beardsley has mistress over, they drink + she secretly takes drugs, too incapacitated to help, held that no legal duty existed maybe if wife

Mens rea Mens rea: the state of mind involved in the crime, a guilty mind mental part Modern construction (narrow): the mental state the D must have had, set out in the definition of the offense Common law: Intent not only includes those results that are a conscious object of the actor, but also those results that are virtually certain to occur from his conduct, even if he does not want them to occur (purpose and/or knowledge = intent) PK needed Willful blindness not enough must actually know Ordinary presumption is the idea that intent is established by the mere fact that one understands the normal results of ones actions reasonable inference. Cant be told by the court to presume guilty, but can be used by jury Specific intent crimes have a specific mens rea requirement + higher culpability, general intent only requires an actus reus + less culpable mental state MPC: Elemental approach: the prosecutor must prove defendant had the particular state of mind required for each element of the material offense. Material elements include: (1) nature of the conduct, (2) attendant circumstance, and (3) result of conduct Establishes four mens rea levels o Purpose conscious object to cause certain result o Knowledge aware that result practically certain to follow o Recklessness conscious, unjustifiable risk creation o Negligence risk creation of which one ought to be aware Common law analogy: Intentionally: basically the equivalent of Model Penal Code purposely and knowingly If no specific level of mens rea is specified, recklessness is default Willful blindness: knowledge is established when actor is aware of a high probability of its existence, unless he actually believes it does not exist. MPC 2.02 (7)-(8) 2

o Willingly disregarding what you are aware of

MPC 2.02 Regina D pulled gas meter off wall in order to steal coins. Not enough to do it, had to foresee results Conley D hit guy in the face with bottle, said that he didnt intend to cause permanent injury. Knowingly enough Nations 16 year old stripper, D said she didnt know. CL applied said willful blindness not enough Flores fake ID, had to know that it was someone elses ID

Strict Liability: Common law exception to mens rea requirement: strict liability cases such as public-welfare cases (dealing with dangerous substances, acts or items) and some light offenses o Statutory rape + felony murder still SL o Should not apply public welfare rationale haphazardly if guns, why not tires? Arguments against: doesnt deter since actor is unaware, unjust to condemn o Rebuttal: more careful since SL governs, ignorance no excuse MPC generally rejects SL, only fines
Staples D didnt know his gun was an automatic, statute silent on mens rea, said not necessarily SL Garnett retarded man told by minor that shes 16, has sex. Language/procedural history of legislature pointed towards SL, previous section had mens rea

Mistake of Fact: Common law: a mistake of fact is a defense. Looks at actors subjective beliefs o Not a true affirmative defense really a challenge to proof of mens rea o Analysis: Is it a general intent, specific intent, or strict liability crime? Strict liability: intent doesnt matter, and thus mistake doesnt matter. Specific intent crime: decide if the mistake relates to the specific intent portion of the crime, and if so does the mistake prevent the actor from having the requisite specific intent General intent crime: apply a culpability analysis was the defendants state of mind blameworthy, and whether their mistake, and in turn their behavior, was reasonable. MPC: See 2.04(1). A mistake of fact is a defense if it negatives the mens rea required for the offense. Matches specific intent common law
Navarro takes wooden beams thinking that they are his. Gov had to prove he intended to steal, no reasonableness test

Mistake of Law: Common law: ignorance/mistake of law no excuse o Possible policy based exemptions like for tax law very confusing so specific intent

o Entrapment by estoppel excuse if reasonable reliance on official statement of law by public official responsible for interpreting; state lures you in o Lambert exception maybe excuse if no notice (lack of probability of knowledge), omission, low utility; very narrow MPC: See 2.04(3). A mistake of law is a defense if the mistake negates the mens rea of the offense. o Defense only available when statute was not published/made available prior to conduct or D relied on official statement of the law by statute/judicial decision/administrative order/official interpretation by the responsible public officer Policy: allowing mistake of law defenses would encourage misreading of the law instead of adherence o Rebuttal: to punish blameworthy, not those without the requisite intent. Must be true ambiguity Factors to consider in implementing defense: should here be one? How broad/narrow should it be? What kind of safeguards should be implemented?
Marrero guard carrying unlicensed pistol. Thought statute allowed for penal officers. Ignorance no excuse Striggles tried showing gumball machine not gambling device. Relied on mayor/trial ct for 2.04(3). Cheek D said he believed he didnt have to pay taxes. Law needed willful evasion, had to prove he knew duty not reasonable person std

Homicide/murder: Common Law: Murder: the unlawful killing of another human being with malice aforethought. Four states of mind: o Intent to kill (MPC P or K), o Intent to cause grievous bodily harm (MPC P or K), o Depraved heart murder (Equivalent to recklessness+, with extreme disregard for human life), and o Committed with the intent to commit a felony (felony murder rule, qualifying predicate + strict liability). Murder in the 1st degree: murder committed through poison, lying in wait, or any other willful, deliberate or premeditated killing, or in the act/preparation of perpetrating arson, rape, robbery or burglary (felony) o Murder in the 2nd degree: all murder not qualifying as 1st degree catchall Manslaughter: unlawful killing of a human being without malice o Voluntary: upon a sudden quarrel or heat of passion o Involuntary: in commission of non-felony, or in the commission (in an unlawful manner) of a lawful act which might produce death. Policy: feeling that not all homicide is the same want to differentiate Premeditation under common law is based on the following criteria: (Anderson) o Facts about what D did prior to killing that shows he was engaged in activity intended to result in killing planning 4

o Facts about Ds relationship with victim which jury could reasonably infer motive from o Facts about nature of killing from which jury could infer must have killed according to preconceived design 1st degree: either all three, strong (1), or (2) with either (1) or (3)
Guthrie D stabbed guy who hit him with dish towel. Must differentiate 1 v 2 premed at the time not enough Midgett D beat kid to death in abuse, not enough for premed esp since drunk Forrest D shot dad several times because he was ill, no provocation. Premeditated Anderson D stabbed kid a bajillion times while drunk. Preplanning didnt fit Shepard D picked out victim, plan to kill or to rob?

MPC: 210.1 210.4 Murder is PK, R+. R+ assumed in certain felonies (remnants of felony murder) Abandons premeditation/deliberation No distinction b/w 1st and 2nd degree Use aggravating + mitigating circumstances
Eulo D caused victim to become braindead. Qualfies as death

Manslaughter: Heat of Passion Killings Common Law: o HOPSAP intentional homicide in the heat of passion due to sudden adequate provocation o There must be (1) adequate provocation, (2) in the heat of passion, (3) without cooling off period, and (4) a causal connection between the provocation, the passion and the fatal act o Adequate provocation must be sufficient to inflame the passion of a reasonable person (objective). Words/lawful conduct not enough unless coupled with an intent and ability to cause defendant bodily harm o The current trend is towards having the jury decide upon the adequateness of provocation. o Misdirected retaliation: HOPSAP defense only when dead person provoked MPC: Section 210.3(1)(b) o Extreme emotional disturbance for which there is a reasonable explanation/excuse (EEDREX) replaced HOPSAP. o May involve a series of events rather than one precipitating, spontaneous event o Two components: (1) must have acted under the influence of extreme emotional disturbance, and (2) must have been a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendants situation under the circumstances as the defendant believed them to be. Subjective component

o Interpreted to mean that a jury or judge should make the decision based on the internal situation of the defendant and the external situation as he perceived it, but applying the standards of reasonableness to such provocation. o Covers also inquiry into defenses of diminished capacity and insanity. Policy: allows for empathy with Ds situation, excuse conduct under circumstances
Girourd D stabbed wife when she insulted + told him she was leaving him. Must be adequate to reasonable man words not enough alone Cassasa D dated woman, she rejected him, he stabbed her. Claimed EED, subjective element of inquiry

Manslaughter: Unintentional Killings: Common Law: Levels of unintentional killings: o No crime below negligent o Negligent homicide failing to be aware of risk to human life o Manslaughter reckless disregard for human life o Depraved heart murder subjectively knows taking unjustifiable risk to human life. Reckless+ MPC: Sections 210.3 and 210.4 define manslaughter and negligent homicide dependant on mens rea of person causing unintentional killing o R+ in murder o R for manslaughter o N for negligent homicide
Knoller Ds dogs very violent/attacked people, finally killed woman. Serious bodily injury not enough for depraved heart Hernandez got drunk and got in accident Williams baby had toothache, failed to take him to doctor. Failed to act reasonably negligent

Felony Murder: Common Law: 1. One is guilty of murder if a death results from conduct during the commission or attempted commission of a felony. Also applies during escape after felony 2. Limitations: (1) The felony must be inherently dangerous to human life (2) Felony murder cannot be charged in a situation where the homicide is an integral part of the felony offense and where the evidence shows that the offense in fact was included within the offense charged (merger rule) i. Underlying felonies with purpose of assault merge ii. Felonies must be independent of homicide (3) The felony-murder rule does not apply when the homicide was caused by a non-felon i. For example, a police officer who shoots a co-felon ii. Fork: some say enough if felon set in motion acts which resulted in death (4) There must be a causal relationship between the killing and the felony. i. Having an unlicensed firearm + hitting pedestrian with car = no good 6

MPC: 210.2(b): replaces felony murder with presumption of recklessness Policy: deterrence of unnecessary killing, more predictable administration (dont have to prove intent prosecution loves it) Rebuttal: how do you deter something that is unintentional, sacrifices fairness for efficiency
Goodseal accidental discharge kills someone, asks if possession of weapon a predicate felony (any). Limited to inherently dangerous Smith D kills child during discipline. Assaultive in nature, need mens rea not felony murder Sophophone D arrested at the time that his co-felon gets shot and killed. Killing done by non-felon, felony murder doesnt apply

Capital Murder: Furman: 8th amendment violated by all capital punishment statutes o In Furman, there was no guidance for administering the DP; arbitrary o Quick backlash + reformulation of sentencing provisions community values retribution + deterrence A death sentence can only be passed by a jury in a post-conviction sentencing hearing after weighing aggravating and mitigating factors o Mandatory death penalty statutes not allowed SC restrictions on DP: not for under 18, mentally ill, mentally retarded -> policy choice Requirements of Due Process: o Strict criteria for what defines aggravating circumstances o Separate jury hearing in the penalty phase o Automatic appeals process o Complete equity in application is not required as long as there is no purpose to discriminate o The Enmund case defined that a non-causal accomplice cannot be sentenced to death if his participation in the crime was minor. However, if such participation was major and showed wanton disregard for human life, the death penalty application was discretionary for the state legislature Proportionality of punishment excessive and unconstitutional if: o Makes no contribution to acceptable goals of punishment (policies) o Grossly out of proportion to the severity of the crime Dont need strict proportionality, just prevents against grossly disproportionate to crime
Gregg Q whether DP constitutional, held to not violate 8th McCleskey D brings in statistical study showing seemingly unfair application of DP to blacks. Had to prove he himself was discriminated against Coker rape not severe enough for death penalty (Kennedy says same for child rape) Edmund driver of getaway car while his accomplices robbed + killed. Degree of participation not enough to justify DP Tison D helped dad in prison break, dad shoots people to death while D away filling water. Major participation, reckless indifference to human life. Ewing upholds three strikes rule. Deference to state policy choices. 7 justices agree in proportionality rule

Rape: Old statutes: Gender specific can only rape women Focus on victim required utmost resistance unless deadly force employed Spousal exclusion impossible to rape wife Little emphasis on mens rea Single grade offense severe penalties: didnt want to enforce Corroboration of victims testimony necessary distrust of victims Common law: Utmost resistance standard rejected However, tendency of court to still consider resistance or lack thereof Emphasis on amount of force, resistance of victim, lack of consent Rape is a general intent offense. Thus, we apply a culpability analysis and ask whether the defendants mistake of fact was reasonable. If the defendants mistake of fact was unreasonable, we are clear to convict. Mens rea required to be guilty of rape at common law appears to be negligence MPC: 213 Similar to common law Focus on use of force Gross sexual imposition: catchall for non-force related Concerns: protection of D, groundless rape claims (lol) Statutes Michigan: focus on force Wisconsin: focus on consent

Defenses: Failure of proof all elements of the offense could not be proved; negation of an element Offense modifications while the actor has committed all the elements of the offense, he did not commit the harm or evil intended to be prevented by the statute victim of crime Nonexculpatory public policy defenses public policy decision precludes punishment of the offender statute of limitations, immunity Excuses the offense elements were completed, but society deems offender not morally blameworthy Justifications the harm is outweighed by the need to avoid an even greater harm; the conduct is tolerated or even encouraged o Must be necessary and must cause reasonable/proportional harm Self-defense (justification) Common law: 8

o Deadly force used in self-defense is justified when: Unlawful, immediate threat Must believe he is in imminent peril of death or serious bodily harm and response is necessary to save himself from it no alternative Must act now, cant delay Battered woman syndrome allowed in trial, problem of imminence Policy: want homicide to be the last recourse Belief must be objectively reasonable o Reasonable belief: Justification is to be evaluated on the basis of all the facts and circumstances known to the defendant subjective element to objective measure o Includes physical attributes, prior experiences o Unreasonable belief cant claim self defense. Some jurisdictions say imperfect defense; mitigates to manslaughter o Policy: cant let people determine own standard of reqd force Beale says better Response is proportional Must retreat to the wall no deadly force when safe retreat possible Exceptions: when retreating would increase risk of harm, when one attacked in home/immediately outside American jurisdictions: can stand ground and use deadly force when reasonably necessary to save self Policy: places control in hands of those who make threats, limits autonomy (block example) Must not be the aggressor/instigator Generally: self-generated necessity; presence provoking trouble Mere words dont constitute aggression Aggressor must communicate attempt to withdraw + make good faith attempt to do so to get defense back o If you act in justifiable self-defense, youre not guilty of any crime Model Penal Code: MPC 3.04 and 3.09. o First must meet 3.04(1), then must also meet (2) o Actor believes subjective o Use of force justified when immediately (timing) necessary for purpose of protecting self against use of unlawful force on present occasion Can be immediately necessary w/o imminence desert race o Conscious object to provoke force is not okay o Must comply with demands to abstain from any action which actor has no duty to take Policy: loss of autonomy, power in hands of threat maker o Qualified duty to retreat with safety, not from dwelling/place of work (unless aggressor, attacked by co-worker/someone you live with) o Can estimate necessity of force under the circumstances o Defense availability when wrong depends on mens rea required of charge If negligent and offense reqs reckless keep defense Typically RN not sufficient for murder 9

Peterson D sees victim stealing windshield wipers, verbal argument then goes and gets gun. Victim approaches with wrench, D kills. Aggressor cant invoke self defense Goetz D approached by black teens who surround him and ask for money, he blasts all four of them, extra bullet on last that paralyzes. Previous history w/ mugging. Objective reasonableness reqd Wanrow Ds son almost kidnapped by victim + victim molested other child. D broken leg + crutch, approached by victim, she blasts him. Women would be held to mans objective std, wanted subjective Norman D always beat by her husband, she went to house nearby to get gun then shot husband. Couldnt leave/arrest/commit b/c of threat of death. Said not imminent

Defense of property (justification) Common Law: o Deadly force cannot be used solely for the protection of property, except where the property was the dwelling house (protection from arson, dispossession or burglary) Policy: sanctity of home Some statutes say only when intruder apparent threat o Use of deadly force used to be authorized to capture an escaping felon but not a misdemeanant Restricted to forcible/atrocious felonies now MPC: 3.06 o Set up same way as 3.04, need to meet (1) o Right to use force to prevent/terminate trespass on land/against property o Deadly force only when (3)(d): Dispossessing of dwelling (not enough to try to get in) In burglary, need to threaten deadly force or expose to substantial danger of serious bodily harm
Ceballos D erected trap gun. Not okay to kill to protect property in burglary

Necessity (justification) Common law: o Three elements are required in order to show necessity: (1) the act charged must have been done to prevent a greater/significant evil, (2) there must have been no adequate alternative, and (3) the harm caused must not have been disproportionate to the harm avoided. Standard is that of what harm could be reasonably foreseen at the time o The necessity defense doesnt help you if you recklessly or negligently created the necessity. o There must be a direct causal relationship between the conduct and the harm to be averted MPC: See 3.02 o Step one: reasonable belief under the circumstances (subjective element) o Step two: if reasonable, objective look at value judgment Economic issues do not matter o Look at legislative treatment of exceptions/legislative purpose o If RN in appraising necessity or in bringing about situation that caused choice, defense unavailable when RN suffices for offense (even if unreasonable) 10

Policy: promotes state/legislative policy choices at the expense of others o If legislature make policy choice you dont agree with, out of luck
Nelson Ds truck stuck in the mud, wait for people to help before jacking dump truck. Dump truck gets stuck also. Not emergency Schoon D helps break in to IRS office to protest US involvement in El Salvador. Act not enough/necessary to abate harm

Duress (excuse) Common law: o Three elements: o (1) An immediate threat of death or serious bodily injury Must be immediate, not threat of future harm key to common law Harm to you or another person Subjective o (2) A well-grounded fear that the threat will be carried out Objective, reasonable belief o (3) No reasonable opportunity to escape the threatened harm Objective Model Penal Code: 2.09 o Defense if coerced to do so by threat/use of unlawful force against your person or person of another And if person of reasonable firmness would be unable to resist objective o Exception (2): recklessly placing yourself in situation = defense unavailable. If negligent, and negligence enough for offense unavailable o No imminence requirement unlike common law o Can choose greater evil
Contento D made to swallow cocaine balloons + if he refused/went to police, his family would be killed.

Intoxication: Common Law: o No state has voluntary intoxication defense o Intoxication in some jurisdictions negates specific intent, and reduces 1st degree murder to 2nd degree murder. o Other states, however, have abolished the voluntary intoxication defense only leaves distinction b/w 1st and 2nd degree murder Policy: voluntary risk-taking should condemn as aggravating factor Trend towards this option o Not applicable to general intent offenses MPC: See MPC 2.08 o Sometimes defense if it negatives mens rea o Negligence reqd: guilty since you got drunk o Reckless: not legally material, have to think about if one would have seen risk if not drunk Policy: becoming so intoxicated has no purpose or social value 11

Veach D intoxicated, threatens officer. Statute needed specific intent not available since drunk

Burden of proof: o Up to state to prove every element beyond reasonable doubt o Allowed to shift burden on non-element defenses Slippery slope: legislation can just label elements as defenses and force D to disprove. Too much power Cant presume guilty Insanity: o Common law: M Naghten Test: D must suffer from disease of the mind necessary Asks what D is able to know - in order to be guilty, D must know both the nature + quality of the act committed, as well as that was wrong o Meaning of the word know cognitive vs. affective Cognitive: basic knowing Affective: appreciate meaning, govern behavior Irresistible impulse test whether D had lost capacity to control behavior/choose not to commit crime. If no, guilty Added onto MNaghten Product test A person shall be excused if their unlawful act was the product of a mental disease. In other words, theyll be let off if they wouldnt have done the act but for their mental disease. o MPC: section 4.01 You are not responsible for your conduct if your mental disease causes you to lack the substantial capacity (1) to appreciate the criminality or wrongfulness of your conduct, or (2) to conform your conduct to the dictates of the law o Reform attempts D now bears burden of proof in persuading jury he/she is insane by preponderance of the evidence (federal says clear + convincing) Guilty but mentally ill found criminally guilty but possible to send to mental health facility until able to serve out criminal sentence Getting rid of volitional prong makes it much easier to convict Refining what diseases/defects count Limiting expert testimony Abolish defense o Policy: balance between public safety + punishment and fair administration of justice
Hinckley watched Taxi Driver and thought he had to shoot Reagan to get Jodie Fosters attention. Pulled back once because it was raining, planned for a long time Clark AZ restricted mental disease + capacity evidence to only insanity defense. No particular rule has become baseline for insanity def up to state

Attempt: Common Law: 12

Consists of specific intent to commit the offense and overt act that goes beyond mere preparation Attempt was treated as a double mens rea crime: (1) the necessary state of mind to commit the actus reus of an attempt and (2) the specific intent of committing the substantive crime. Can be divided into complete (all the steps were done, but the result was not achieved) or incomplete (the actor stopped before completing all steps, either by choice or by outside influence) Typically, common law attempt received a lighter sentence than the underlying offense. Cannot be convicted of an attempt and the completed crime Cannot be convicted of attempt to commit a SL crime felony murder Defining the overt act necessary to confirm criminal attempt: Physical proximity doctrine the act must be proximate to the completed crime, or directly tending toward the completion of the crime Dangerous proximity doctrine the greater the gravity and probability of the offense and the nearer the act to the crime, the stronger is the case for attempt Indispensable element test emphasizes any indispensable element of the crime over which the actor has not obtained control may be a bar to attempt Probable distance test if the conduct in normal order, without interruption from the outside, will result in the crime Abnormal step approach a step which goes beyond where a normal citizen would think better of his actions and desist Res ipsa loquitor or unequivocality test an attempt is committed when the actors conduct manifests an intent to commit the crime

MPC: Section 5.01 Shift from what remains to be done to what action has already been done, broadens scope of attempt liability (1)(c): If the defendant has taken a substantial step towards committing the crime, even if there is a lot more to be done, he can be convicted (2)(c): Substantial step must be strongly corroborative of actors purpose o Non-exhaustive list of actions Punishment is same as for substantive offense, except in case of 1st degree felony, where it is downgraded to 2nd degree Attempt is not a specific intent crime in all circumstances. Defenses to Attempt Impossibility: when because of a defendants mistake of fact or law, his actions could not have possibly resulted in the commission of the crime he is charged with. Factual impossibility: the defendants intended end constitutes a crime, but he was unable to consummate it due to facts that were unknown to him (gun not loaded) Not a defense under common law Legal impossibility Pure legal impossibility: the criminal law does not prohibit the conduct or result that he has attempted to achieve (sex with a person who is 15 and the 13

defendant believes the age of consent to be 16, but the age of consent is actually 15) full defense under common law Hybrid legal impossibility: attempt to commit an offense which is illegal, but commission of such offense was impossible due to a factual mistake regarding the legal status of some factor relevant to the conduct. (attempting to seduce a minor who is actually an adult police officer on a sting operation) full defense under common law in the past, but out of favor now. MPC has eliminated all impossibility defenses except the pure legal impossibility defense 5.05(2) if neither conduct or actor poses public danger, can mitigate down or dismiss completely Abandonment: when an actor voluntarily abandons his attempt to commit a crime Under common law, abandonment was not a defense once the requisite steps were completed to convict on an attempt charge no renunciation Under MPC 5.01(4), full and voluntary abandonment prior to completion of a crime is a full defense. Not considered voluntary if done in response to increased risk of apprehension MPC needs it because of shifted timeline Policy: incentive to obey law

Conspiracy: Common law: Conspiracy is defined and complete upon the formation of agreement No overt act is required (except in few jurisdictions) Conspiracy is a separate crime that does not require completion of the agreed upon goal Specific intent crime: must have (1) intent to join conspiracy and (2) intent to commit the offense which is the object of the conspiracy. Conspiracy does not merge with the substantive crime and thus both can be charged Reasons for punishing conspiracy increased success, pressure not to back out Attendant circumstances: some say mens rea of knowledge, some say mens rea of underlying offense should apply MPC: Conspiracy requires an overt act, though a small one will suffice, for all offenses except 1st and 2nd degree felonies MPC: must have purpose knowledge not enough Same penalty except for most serious offenses (1st and 2nd degree felonies, which are dropped down one) Conspiracy and attempt merge when single object. Sometimes when multiple objects -> multiple punishments 1.07(1)(b) Attendant circumstances: left to interpretation but looks like purpose Lauria seller participation: exception to having purpose for conspiracy Two issues involved: (1) sellers knowledge of the buyers intended criminal purpose and (2) sellers intent to further, promote and cooperate in the crime by selling the item. Intent can be inferred from: 14

Direct evidence of participation giving advice The seller has acquired a stake in the venture excessive rent No legitimate use for the goods or services exists The volume of sales is grossly disproportionate to any legitimate demand or the sales for illegal purpose represent a high percentage of the sellers business Knowledge, when the crime is of a serious nature Rule: knowledge can qualify as intent with: (1) direct evidence that he intends to participate or (2) an inference of intent to participate based on either (a) special interest in the activity or (b) the aggravated nature of crime itself. Doesnt apply to misdemeanors- maybe only for heinous felonies Unilateral vs. Bilateral Conspiracy: Conspiracy can be defined as unilateral (involving the intent only on the part of the defendant) or bilateral (requiring intent on part of all parties). Common law fork MPC: adopted the unilateral approach in MPC 5.03 Policy: unilateral punishes guilt mind, bilateral prevents commission Scope of Conspiracy: Common law theories: o Chain of conspiracy example drug smuggling operations are usually all considered co-conspirators as they are in constant contact, depend upon each other and have a common purpose. o Wheel conspiracy one central figure who has multiple agents working for him who do not know about the other agents. While the central agent is part of a conspiracy with each spoke, the spokes are usually not considered co-conspirators unless for some reason they know of each other, or the outcome is dependent on their coordinated action. Dont necessarily have to know/deal with others, consider: common goal + tacit agreement, common interest in not getting caught, financial interdependence MPC: 5.03(2) guilty of conspiring with all for same crime, even if dont know One agreement can only lead to one conspiracy charge regardless of the number of offenses committed. MPC 5.03(3): continuous conspiratorial relationship

o Defenses to Conspiracy: Common Law: Whartons Rule: when two people are necessarily required in the definition of the crime, conspiracy cannot be maintained. o Idea of double counting since the crime is already the agreement o Third party exception to Whartons Rule: when the conspiracy involves a greater number of persons than is required for commission of the crime, the rule is inapplicable o Whartons rule applies only when the harm is directed towards the actors only, not to society or outside persons. 15

o If before commission of offense, double count problem gone policy of protection still there When only one side of a transaction is criminalized, no conspiracy charge is allowed to undermine the legislative policy choices example of women being transported for sex Changing your mind doesnt matter May influence punishment, but not complete defense Conspiracy is complete upon commission of the overt act, and thus withdrawal is only a defense prior to the commission of an overt act. Participation presumed to continue unless one rejects the conspiracy and communicates this to coconspirators

MPC: 5.03(6) renunciation complete defense if thwart success of conspiracy 5.03(7) abandonment partial defense (cuts off from that point) if he tells coconspirators of abandonment or tells law enforcement of conspiracy + his participation in it

Accomplice Liability: Common law: An accomplice/accessory is guilty not of aiding or abetting but of the substantive crime. Accomplice can be convicted of aiding even if the principal is not identified/convicted o However, cannot be held liable absent proof a criminal offense was committed Accomplices mental state must be at least that of principal if more than others, guilt may be greater Attendant circumstances: fork between requiring purpose/knowledge as to circumstances (age in statutory) or acting with kind of culpability that is sufficient to convict primary party (SL in statutory) Criteria for accomplice liability Act of assistance actus reus Mere presence absent evidence that defendant affirmatively did something to encourage is not enough need more Can construe encouragement very broadly to cover a lot of things smiling, payment, making up cover story Assistance need not even contribute to result enough to merely make it easier for principal However, must in fact assist/contribute. Wanting to help not enough opening window when principal uses door Intent to promote or facilitate the commission of the crime mens rea Dual intent: intent to aid principal and intent that assistance result in commission of the offense charged Purpose (Peoni) vs. knowledge (Backun) purpose is much harder to prove 16

Natural-and-probable consequences (two steps): Actor intended to promote the primary crime Commission of the secondary crime was a foreseeable consequence of the actors participation in the primary crime Some states rejected NP consequences because the result was unforeseeable unfair to punish Pinkerton when there is no action of withdrawal, the partnership in crime continues. Partners still act for each other and overt act of partner is overt act of all without any new agreement directed to the new act o Relatively minor actors would be held liable for acts they didnt had little to no control over Exceptions: Felony murder rule applies to all co-felons Cant punish member of protected class An accomplice can withdraw from a crime by terminating his complicity prior to the commission of the offense and wholly depriving that complicity of its effectiveness. However, he may still be charged with attempt under common law if he had already performed an overt act. One who effects a criminal act through an innocent or unwitting agent is a principal o Reasonably foreseeable intervening acts do not break the chain of causation MPC: 2.06(3): With the purpose to promote or facilitate -> knowledge is not enough o Purpose in MPC is a policy choice 2.06(3)(a)(i): Encouragement is enough in MPC counts under solicitation 2.06(7) an accomplice can be convicted if the crime was committed but the primary agent was not convicted under a non-merit based cause. 5.01(3) person who engages in conduct designed to aid another to commit a crime is guilty of attempt although the crime is not committed/attempted by such other Rejects Pinkerton b/c people being held accountable for crimes theyre unaware of Attendant circumstances ambiguity as to attendant circumstances MPC view on NPC mostly reject, restricted to result crimes (like murder); must have Ds level of mens rea for result crimes o For conduct crimes look at 2.06(3)(a) No felony murder rule in MPC No accomplice liability if you: Are the victim The definition of the crime makes your conduct inevitably incident to its commission other side of transaction like buyer of drugs Terminate your complicity prior to the commission of the offense and (1) wholly deprive your complicity of its effectiveness or (2) give timely warning to law enforcement or otherwise make a proper effort to prevent the crime. Might not be enough if you encouraged already 2.06(2)(a): innocent instrumentality- acting with kind of culpability sufficient for commission of offense, causes innocent or irresponsible person to engage in such conduct 17

Corporate Liability: Common Law: o The action must at some level represent corporate policy o The jury must decide if (1) the acts of an employee constitute the acts of the corporation and (2)(a) that the agent was acting within the course and scope of his or her employment, having the authority to act for the corporation with respect to the particular corporate business which was conducted criminally and (2)(b) that the agent was acting at least in part in furtherance of the corporations business interest and (2)(c) that the criminal act were authorized, tolerated or ratified by corporate management. MPC: Section 2.07 o The individual can be convicted as well as the corporation; however, if the individual is acquitted, the corporation can still be held liable. o The responsibility can only be established on the basis of authorization, request, command, performance or reckless tolerance of a high managerial agent.

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