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be accompanied by a culpable state of mind, is the actual and proximate cause of the social harms as proscribed by the offense. Jury Instructions a. Watch out for: a. Irrebuttable presumptions b. Misapplication of scienter requirements
STATUTORY INTERPRETATION Legality: Legislativity: Legislature-made? Judges can‟t re-interpet Common law? Judges can re-interpet Prospectivity: Retroactive lawmaking? Ex post facto Specificity: Adequate notice? Know what is and isn‟t legal Does it delegate interpretation to police, judges? Lenity Principle: ambiguous statutes should “be biased in favor of the accused”. (Not recognized in MPC) Unconstitutional Actus Reus: “Status” Crimes Propensity for bad behavior v Particular criminal act. Result of involuntary condition? Eg, being homeless. Was D aware of alternatives? Were alternatives feasible? Social Harm? Mens Rea: Strict liability (sometimes)? Presumption of mens requirement if no contrary legislative purpose Mistake of Law - Fair Notice? Lambert: Omission, Status Crime, Malum prhoibitum? Scienter Requirements 1. Does mens rea element modify all elements in the statute? a. Where is it placed? b. Presumption in favor of a scienter requirement to apply to statutory elements that criminalize otherwise innocent behavior. 2. Silent? a. Can you read a mens rea element into? i. Presumption against strict liability b. Public welfare offense?
Legislative history. Fringe: Hypnotism. Definition of involuntary i. Constitutional? b. Govt must prove it beyond a reasonable doubt b. Attendant circumstances – what other features must be present MENS REA 1. Social harm (death is the social harm) 2. Which level of mens rea required attaches to which element? 3. Anticipating Involuntariness i. Voluntariness is an element of every criminal offense a. That causes (which caused B‟s death) c. Elements i. ie. Omissions i. the conduct that actually and proximately caused the social harm of the offense charged d. Multiple personality c. Possession i. Common Law a. Constructive: Knowledge? Evidence of exercising dominion? c. Affirmative Defense v Negative an element ii. Status Crime i. Strict Liability a. Legal duty v moral duty 3.i. General Intent v Specific Intent? 2. Aware of propensity? Can he take precaution? Did he take reasonable precaution? 4. Conduct element – the action that must be performed ii. Not simply a defense. Derived from CL? Undermine policy? Enforces unreasonable/unconventional expectation? Large penalty? Effect on reputation? 3. Common law interpretation. Overt Act: Guilty intention unconnected to overt act cannot be punishable by law a. Definition a. Broad v Narrow: Must focus on the relevant conduct. Constitutional? . Time framing i. Social Harm: against criminalizing conduct “absent injury to a person or abuse of an institution the law protects. A voluntary act (A stabbed B) b. etc ACTUS REUS 1.” a. MPC a. Result element – the result that must occur iii. How to interpret it? a.
Common law a. public officer? . MPC i. Foreseeability of Intervening Cause? 1. were his actions moral? i. Reasonable reliance? 1. what did D reasonably believe he was doing? b. Actual Cause b.04(3)(a) – not know or made reasonably available iii. Mistake of Law – ignorance of the law is no excuse a. MPC a. Common Law i. Fair Notice? Constitutional iii. Negates specific intent element? 1. General Intent: was his mistake unreasonable? 1. Mistaken purpose? Mistaken knowledge? Mistaken about a substantial and unjustifiable risk? Mistakenly unaware of a risk? ii. Specific Intent: does the mistake of fact negate the specific intent portion? b. Responsive v Coincidental 2. CL: i. Concurrent sufficient cause? iii. Proximate Cause i. Based on D‟s belief. D‟s own interpretation or private counsel? – No 2. Mistake of Fact a. Accelerated a result? ii. De Minimis Contribution? ii. Fair Notice? 2. Does the requisite level of mental culpability still hold? ii. Official statement by statute. Negates a material element or permitted as a defense in statute? – Only for different-law mistakes CAUSATION 1.4. MPC i. Exception: If D guilty of another offense if circumstances were as D supposed them to be? 5. judicial decision. Obstructed Cause? b. If reasonable. Didn‟t know he was a felon b. Illegal-wrong: were his actions illegal? Guilty of greater offense ii. Different-law Mistake: Mistake in law relates to a law other than the criminal offense a. But for cause i. Proximate Cause (Culpability) i. Ex: Illegal for felon to have gun. Reliance? 2. Felony Murder: Must be a probably consequence .Yes ii. Moral-Wrong Doctrine a.04(3)(b) ii.
forcible rape. MPC i. Was subjective belief reasonable? . Did D regain the right of self-defense? 1. Self-Defense a. such force is necessary i. Deadly Force? 1. Withdraw in good-faith and fairly communicate this fact c. §3. Can D use deadly force? i. Accomplice Liability passes 2. and is proportional d. No? .09 2. Rational racist? Rational misinformed individual? b. Was D‟s belief reasonable? 1. D believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force. Yes: Death. Excuses are individualized a. Burden of Proof a. Justification? – Govt must prove conduct was unlawful b. e. Who was aggressor when the defensive deadly force was used? 1. In D‟s „castle‟? ii. Pure objective or subjective reasonable person? b. Which mental/physical characteristics and background are relevant in assessing reasonableness? ii. Can expert testimony be entered to validate D‟s reasonableness? 2. Serious bodily injury.§3. Immediately necessary? Permits earlier use of force ii. Which standard of reasonableness? a. Only if necessary to prevent imminent and unlawful use of deadly force by aggressor 1. Third Party Conduct . He may have to try to retreat first if V tried to escalate. kidnap 2. D not justified if he made a unlawful act that produced a potentially injurious fatal consequence 2. Excuse? – D must persuade he is not to blame 3.04(1) 1. Imminent? Pre-emptive strike? ii. D cannot escalate out of proportion. Reasonably believe i. What knowledge/belief are relevant/valid? a.Justifications are universalized. Reasonable person in the actor‟s situation? i. Retreat rule v No retreat? 1. Is D excused or justified? b.JUSTIFICATION/EXCUSE 1. What did D subjectively believe? ii.
Must avoid a greater harm 1. How did D get intoxicated? How did intoxication impact D? . 4.02(1) i. ii. Alter ego: only justified if V would have been justified? b. doesn‟t require D to avoid a greater harm ii. No legal alternative iv. Exception: D recklessly/negligently placed herself in the situation? If negligent. CL: i. Duress a. Threats to kill/injure the actor/third person (relative)? iii. Decision process? vi. Would a person of reasonable firmness in her situation have been unable to resist the coercion? 1. 6. Reasonable belief it was necessary? ii. Limitations to natural disasters. No legislative intent to exclude the conduct in such circumstances. MPC: i. ii. Only human threats. D believes it is necessary to avoid harm to himself or another. Traded a greater probable chance for a certain death? v. D uses proportional force? Would V be justified if V believed circumstances were a D believes? Necessary? 5. A clear and imminent danger. Retreat? If he knows he can retreat with complete safety.09 i. Objective std but can consider prior unlawful threats iv. still available as a defense for all but negligent culpability crimes? 7. Present. D must have „clean hands‟ 1. Necessity a.a. ii. CL: i. MPC (Broader) §3. CL: i. Except: if D is in his castle. D‟s action must directly avert the harm iii. imminent. No reasonable escape except through compliance? vi. Defense of Others a. Must avoid a greater harm iii. Actor was not at fault in exposing herself to the threat? b. not an excuse a. Reasonable belief in a genuine threat? iv. impending at the time of the crime? v. not for murder. Regains by D tries to break off b. but he does if he starts lethal. Intoxication – generally. Aggressor? D doesn‟t lose right if D started nonlethal conflict. MPC 2. Compelled by the threat of unlawful force? iii. homicide? b.
Specific intent? Yes. for rape 2. Involuntarily ingested? Coercion. Doesn‟t require total mental incapacity ii. Suffering from mental defect and conduct was the product of the mental defect e. MPC . for assault with intent to rape iii. Morally wrong = violated societal standards. so can‟t control his actions? d. appreciate the “criminality” (or wrongfulness)? a. All attempts are specific-intent crimes. Insanity a. Cannot be guilty of a result crime (murder) unless he acted with the specific purpose of cause that result. Yes. meds? 2. D‟s will is destroyed. Modifies M‟Naghten to include „involuntary‟ acts ii. Involuntary? 1. (No attempted recklessness) . Negates mens rea? 1. Voluntary act? 1.at the time of the conduct i. society will condemn them a.08 i. Must have a recognized mental illness b. Appreciate is broader than know 2. Pathological. Voluntary? . Durham Test (Defunct) i. Unable to choose between right and wrong behavior? iv. Acted from an irresistible and uncontrollable impulse? iii. Considered if intoxication causes the D to suffer from a mental condition 8. Irresistible Impulse Test i. Deific Decree? From what source? c. did D know that it was wrong? ii. Can they describe it and its forbidden nature? Can they evaluate it terms of impact on others and context? iii. did intoxication impaired ability to perceive risk? ii. Know? 1. M‟Naghten Test (cognitive disability) i. CL i. D intoxicated unto unconsciousness? (mens rea) ii.b. MPC §2. mistake.can negate mens rea 1. Intoxicated-induced insanity? Generally no c. General intent crime? No. Conform his conduct to the requirements of the law? ATTEMPT 1. If resklessness. ie. D knew the nature and quality of his actions? 1. Lacked substantial capacity to either: 1. Legal v Moral Wrong? 1.
Did D have the purpose to commit the target offense? ii. D intends to commit crime but actually doing something lawful but doing? 2. Not postponing for a better opportunity? 3. Physical proximity (D has everything in his power to complete crime) People v Rizzo – D‟s still searching for V. Actus Reus i. Was D motivated by unexpected resistance/police/lacking instrument? 2. not guilty 3. Complete attempt? 1. Indispensable Element (crossing the line from preparation to perpetration) iii. MPC §5.01 a. greatness of the harm. Did D‟s actions corroborate D‟s intent to commit crime? ii. Last act (“pulling the trigger”) 2. Probable Desistance (crossed the point at which he would have abandoned his effort) 2. CL: a.01(2)? if strongly corroborative of his criminal purpose. degree of apprehension felt) 4. Conduct Crime? 5.01(1)(a) a. Does substantial step corroborate D‟s intent considered in context? 2. (pickpocketing an empty pocket. D mistakes the legal status of an attendant circumstance? (Receiving unstolen TV) a. Is it on the list of §5. stabbing with a feather??) ii. What has been done? 1.01(c) incomplete attempts) i.2. Defense: Impossibility i. Did D voluntarily and completely renounce criminal purpose? 1. Mens Rea i. Actus Reus (Applies to 5. Legal Impossibility? 1. Did D take a substantial step toward the commission? ii. Dangerous proximity (nearness of the danger. Unequivocality (a person‟s conduct unambiguously manifests his criminal intent) b. Factual Impossibility? No defense. What was D‟s goal? (Receive stolen TV or receive a TV) c. What has D already done? (Not: what is left?) 1. Did D have purpose as to attendant circumstances? (age of rape V) . these “shall not be held insufficient as a matter of law b. Defense: Abandonment i. What is left to be done? 1.
Liability – D‟s liability is derivative of principal. omission (Aiding. Purpose v Knowledge? Must share a community of purpose of the principal 2. Reckless or negligent state of mind? i. psychological influence. P convicted? >>What offense did principal commit w/ D‟s help? . If not.i.01(1) If the attendant circumstances were as D believes them to be. P hit V) iv. Actus Reus: 1. Incomplete attempt? 5. P feigned purpose? >> Not innocent instrument but also lacked mens rea. Belief it will result even if not purpose? iii. ie. For non-offense or justification? >> Not liable b.01(1)(c) 1. Belief it will result even if not purpose? c. not liable a. Defense: Impossibility (except pure legal) i. Abandoned effort? Tried to prevent it? ii. Was D merely present? >> Generally. CL – i. so no crime??? 2. Accomplice Liability a. (2) D shared same mental state. Result crime? 5. recklessly assisted in P‟s recklessness (D encouraged P to drive fast. Conduct in fact assisted the commission of the offense? a. Advising) ii. § 5. D acted with the same degree of culpability required to commit target offense? (If rape required recklessness as to age and D was) 2. Encouraging. Conduct manifests complet and voluntary renunciation? COMPLICITY 1. Not guilty of independent offense 1.01(1)(b) a. Soliciting. For excuse? >> Liable if P‟s actions were wrongful but was insane. Mens Rea 1. then D didn‟t have the mens rea b. P not convicted/acuitted? >>Generally. Did D feign purpose? – Wilson v People i. D intended to assist principal to engage in the conduct of the offense? a. D didn‟t intend to steal permanently. etc c. Defense: Abandoment i. Abetting. (1) Logically impossible to attempt to be reckless ii. d. need more b. D had mental state required for commission of the offense? a. Types of assistance: physical conduct. Was assistance effectual? Even trivial is enough iii.
concerted action? >> Accomplice only ii.06(6) . D can be convicted of greater offense? i. Agreement. 2. Except for felony murder rule 3. P not convicted/acquitted? >> Conviction is not a prerequisite. MPC §2. Did D use P as instrumentality? a. P convicted? >> What offense did principal commit w/ D‟s help? a. Did D use P as instrumentality? 2. can result of offense be separated (assault v aggravated assault)? >>D shouldn‟t be convicted of offense that didn‟t occur or it‟s a single wrong b. Liability ends at what D purposefully did.06 i. No: D was unaware P was epileptic) 4. (1) Has mental state sufficient? (2) Causes innocent/irresponsible P to engage in crime? i. concerted action? >> Accomplice & conspirator 1. No foreseeable consequences. or both ii. D may not be liable 3. D encourages P to hit V. No agreement. (1) falls within the scope of the conspiracy. Accountability 1. Pinkerton Doctrine: which a party to a conspiracy is responsible for any criminal act committed by an associate if it: a. Were other offenses natural and probable consequences of that offense? i. P convicted of lesser offense? a. Broad conspiracy? >> Conspirator liable for all foreseeable actions in furtherance of conspiracy. Conspirator must agree to aid in the particular offense. then D can be judged according to D‟s own mens rea. or (2) is a foreseeable consequence of the unlawful agreement b. Accomplice liable only for actions in which D assisted. Conspiracy tracks accomplice liability. but P uses deadly force. Also. Accomplice v Conspirator i. If D has different mens rea 2. Not an accomplice? 2. Accomplice liable only for actions in which D assisted c. Agreement.a. Innocent P (excused: insane)? Or D manipulated P? >> Directly liable 4. (Yes: D recklessly allows epileptic P to drive car.06(2)(a) a. P recklessly kills V. no concerted action? >> Conspirator only iii. D intended greater offense? >> If homicide. i. MPC a. If other. a. by his own conduct or by the conduct of another person for which he is legally accountable.
Agrees to aid? Not equal to conspiracy and doesn‟t join partnership of conspirators b. Actus Reus 2. D‟s purpose is to promote/facilitate the commission of a substantive offense? ii. (2) he acted with the culpability.06(3)(a) a. Merger: If D2 completes murder. Did D actually communicate the solicitation? 2.01(3) 1.06(4) a. Actus Reus (invite/encourage/hire/request) 1. Knowledge v Purpose? >> Only purpose 2. „strict‟ liability 2. (1) he was an accomplice in the conduct that caused the result. D part of the conduct causing result (not just involved)? b. Mens Reas 1. Solicit.02(1) i. Abandonment? iii. OR P committed felony murder. Crimes of recklessness/negligence? 2. Actus Reus . then solicitation mergers with the greater crimes. Mens Rea: 1. With the purpose of promoting or facilitating the commission of the offense. 3. Mens Rea (Specific Intent) 1. Felony or Serious misdemeanor? ii. attempts to aid or omits a legal duty? a. Intent to communicate? 2. Was P convicted of attempt? D can be convicted of attempt §5.06(3)(a) 1. What is P‟s responsibility? a. D acted with the same level of culpability? Negligence c. Was P stopped before substantial step? >> D still liable iv. CL: i. b. Solicitation a. Ex: P negligent driving. Inevitably incident >> D can‟t assist in selling drugs to himself c. agrees to aid. aids. regarding the result that is sufficient for commission of the offense 3. Did D try to trick D2 using him as innocent instrument? iii. Intent for D2 to consummate the solicited crime? c. MPC §5. D assisted in felony. and b. Is D or D2 going to be the principal? D can‟t be principal. If D is victim of the offense b. if any. D encouraged speeding. Attempts to aid? Aid doesn‟t have to be effectual i.a. D and P negligent. attempts or forms conspiracy.” 2.
Mens Rea i. Commands/encourages/requests D2 to engage in conduct that would constitute the crime or attempt? 2. D required to have knowledge of attendant circumstances? a. D doesn‟t have to know of other members ii. Has any member acted? Triggers liability for all c. How big is the conspiracy? (Wheel v Chain) 1. USvFeola (murder a federal agent) but this would negate specific intent mens rea iv. Defense i. D is liable for every offense committed by every other conspirator in furtherance of agreement 2.1. Intend that the object of their agreement be achieved? (unlawful act or accomplish legal act by unlawful means) iii. Express/physical agreement? If no. Impossibility? No defense ii. Can D‟s intent be inferred from knowledge? 1. Stake in the outcome? Sales at inflated prices? Portion of business? Unique goods for unlawful purpose? 3. Did D ask for D2‟s help? D can be principal iii. CL: a. How many agreements were formed? Did first agreement envisage future acts? e. Actus Reus (the Agreement) i. Did two or more Ds have the mens rea (not undercover cops or lacks capacity to form the agreement)? d. Merchant? a. Maybe. Offense malum prohibita? (motive was morally acceptable but didn‟t realize actions were illegal) v. Abandonment? Conspiracy complete upon agreement and overt act . formation alone is enough ii. No overt act required. Knowledge of all details? Agree to every part? –Unnecessary iv. Defense: Did D completely/voluntarily renunciate? CONSPIRACY 1. can it be inferred from circumstantial evidence (choreographed action)? iii. D joined in action but not in formation of agreement? v. Parties to Conspiracy: i. Plurality 1. Affirmatively avoiding knowledge? 2. Merger: Conspiracy does not merge into attempt or commission b. Intend to agree? ii. Corrupt-motive doctrine? 1. Multiple crimes? 1.
Moment of abandonment SOL begins to run iii. Overt Act? 1. Generally. Impossibility? No defense ii. Abandonment? 1. Did D.1. Part of the same agreement? Part of continuous conspiratorial relationship? e. the intention to commit a felony during the commission or attempted commission of which a death results 1. Mens Rea i. Willful. can be spur of the moment b.03(3) 1. D agrees with one or more to solicit/attempt/aid planning or commission/commit a crime? ii. Avoid further liability (attempt/commission)by withdrawing and communicating withdrawal 2. the intention to kill a human being. Knowledge is not enough. Murder – killing with malice aforethought a. Plurality 1. Wharton‟s Rule: You cannot conspire to commit an offense that requires 2. Made with the purpose of promoting/facilitating a crime? 1. and/or Premeditated? >> 1st degree ii. Deliberate. Malice? i. Parties to the Conspiracy i. Merger: D made separate overt act of preparation? Or caught in Act 1 before completing Act 2? b. or 1. Renounce his criminal purpose but to also thwart the success of the conspiracy HOMICIDE (CL) 1. 2nd degree iii. Was it a inherently dangerous felony? . D1 knows that D2 has conspired with others? Joins entire conspiracy regardless if he knows others identity c. an extremely reckless disregard for the value of human life. 1. 1. Generally. agree to the conspiracy? (D could be only one w/ requisite mens rea) d. Agreement? 1. Actus Rea i. Multiple Crimes? §5. MPC §5. Preparation or perpetration? Perpetration can merge iii. Aforethought? >> Premeditation not required. Intent? a.03 a. standing alone. ii. 2nd degree iv. the intention to inflict grievous bodily injury on another. Defense i.
fear. N: Short tempered. No reasonable time to cool off? >> Generally. drunk D iii. In the abstract? >> Can‟t be performed w/o creating a substantial risk (robbery) b. If other party was a co-felon (“agent”)? >> D liable c. Gross deviation from standard of reasonable care? >> Not like tort negligence .unlawful killing without malice aforethought a. Consider D‟s situation or background? a. Proximate Cause Approach: Were the actions of other parties‟ foreseeable result of felon? >> D liable c. If other party was a non-felon an adversary/bystander to the crime? >> D not liable b. desperation ii.Sudden heat of passion resulting from adequate provocation i. In the manner performed? 2. Happened between attempt and reaching a place of temporary safety? ii. Degrees (originally no degrees) i. strictly applied iv. Homicide was truly caused by felony? 4. intent to inflict greivious injury. Voluntary . Provocation caused passion/homicide? b. Involuntary – Criminal Negligence i. N: Man had ii. Did other party kill during the homicide? a. Level of self control to be expected? >> More objective 1. Would circumstances render an ordinarily prudent person incapable of self control (reflection)? a. Did the felony have an independent felonious purpose? >> Can‟t simply convert manslaughter/assault to felony murder. First degree – ii. Y: Chinese have different cultural values b. Merger: a. Second degree – intentional but not premeditated. Which factors to consider in assessing reasonable? >> Subjective v Objective? i.a. Was there a proximity b/w felony and homicide? i. Manslaughter . Lawful act? >> Done in unlawful manner w/o due caution ii. Res gestae: a. Words alone? >> Never adequate b. Result of adequate provocation? 1. reckless (depraved heart). Gravity of provocation? >> More subjective 1. Acted in heat of passion? >> Can be anger. 3. some felony murder 2.
not for homicide? >> Still taken from POV of D a. Was D‟s indifference not extreme enough? b. or negligently. Much broader than Common Law (differences) 1. Misdemeanor/Unlawful-act? >> Not recognized as homicide d. No need to involve an injury/provocative act perpetrated upon the D 3. knowingly. D committed felony in non-reckless manner? Jury may. purposely.0(1) a. external characteristics BUT exclude idiosyncratic moral values iii. Murder but result of extreme mental or emotional distress (EMED) i. govt must disprove beyond reasonable doubt ii. Criminal Negligence? >> Not recognized bc absence of subjective fault 4. Objective: Is there a reasonable explanation/excuse for the EMED. Manslaughter a. Recklessly i. Was it morally wrong? >> May apply HOMICIDE (MPC) 1. The provocation doesn‟t have to be within a certain category 4. Criminal Homicide . No rigid cooling-off rule. but need not infer recklessness 3. What were the circumstances of D‟s situation as D believed them to be? >> 1. Felony Murder? >> Recklessness is non-conclusively presumed 1. Was misdemeanor inherently dangerous? >> Can limited to dangerous one. Misdemeanor-Manslaughter i. b. Negligent homicide. Purposely. knowingly. Recklessly: manslaughter is lesser offense of murder i. D manifested an extreme indifference to the value of human life? ii. D aware of the risk? >> D is probably reckless if she was aware of substantial and unjustifiable risk that manifested indifference to human life c. Murder a.1(1) 2. No specific provocative act is required to trigger EMED defense 2. No need for suddenness c.unjustifiably and inexcusably takes the life of another human being § 210.iii. Subjective: Was EMED sufficient to cause loss of control? 2. May not apply to malum prohibita ii. . Include personal handicaps. recklessly. § 210. D must provide evidence. Incorporates sudden heat of passion/partial responsibility.