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Let public know about severity of offense b. Protect the rest of society c. Show collective disapproval d. Retribution/Compensation e. Practical necessity punishment is inseparable from the justification of threats of punishment f. Incapacitation keep them away so they can't commit more crimes g. Rehabilitation 2. Theories of Punishment a. Retributive i. Punishment is justified because people who choose to do wrong deserve it. ii. Its restorative justice and the dominant theory of punishment. iii. Retributivists look back at past acts; restricts punishment to those who committed a willing choice to commit harm those who are mentally ill would not deserve punishment iv. Theorists: 1. Moore lex talionis. Moral deserts of an offender are a sufficient reason to punish him. It s not an application of a general principle of justice. Equals should be treated equally and unequals unequally. 2. Kant: Only the government should be able to punish. Judicial punishment (poena forensic) is different from poena naturalis where crime punishes itself. But punishment can only be imposed on someone who commits a crime. Must be first found guilty and punishable. Failure of justice to keep someone guilty alive contrary to just deserts. Even if society would benefit from your life, you need to get what you deserve 3. Morris: We have a right to punish that is derives from a human right to be treated as a person. It is a natural inalienable and absolute right; the denial of the right leads to the denial of all moral rights and duties. If a person fails to exercise self restraint, he renounces a burden others have voluntarily given up. b. Utilitarian i. Bentham: Principle of utility all laws should augment the total happiness of the community. Punishment shouldn t be inflicted if it s groundless, can t prevent mischief, is unprofitable, or needless. ii. We should only punish criminals if some good will come out of the act because punishment in itself is evil. iii. Deterrence 1. Specific - D can decide not to commit future crimes for fear of punishment. This presupposes a rational person; someone could have a chemical imbalance and not know what they're doing is wrong. 2. General other persons, contemplating crime and learning of the punishment, will choose not to do it. If you make an example of someone, it will cause deterrence, but this presupposes a rational person. 3. They re not soft on crime they d approve a very harsh punishment for a small offense if it s committed by someone believed to re-offend in the future. 4. Requires that the D hear the threat accurately. Don't want D to be under deterred or over-deterred
5. Pretrial diversion, plea bargaining, early release on parole, etc undercut the deterrent impact of the threatened punishment. iv. Incapacitation 1. People who have rejected social norms and demonstrated their willingness to continue to do so in the future must be prevented from reoffending 2. Punish for lengthy period of time every person committing the same crime equally OR 3. Assume that they can accurately ID those who are most likely to reoffend and impose on them lengthy period of incarceration. a. Parole boards decide if people have learned their lesson and still need incapacitation 4. Imprisonment puts convicted criminals out of circulation; death is even better. Could parole an offender for a lesser risk management solution, but this presupposes rehabilitation and a society willing to lock people up instead of killing them v. Rehabilitation 1. Punishment could reform a criminal so his wish to commit crimes will be less and he can be a productive member of society. 2. Offenders can be changed into non-offenders if given proper treatment. 3. Each offender gets a different sentence depending on how well he had been rehabilitated or how long it would take to do so 3. Sentencing a. People v. Du i. Facts: D owned a liquor store in a neighborhood run by the Cripps; observed a 15 year old girl putting orange juice in her book back; confronter her, got punched by girl; D grabbed a gun she didn t know had been alters and accidently shot the girl in the head. Jury found her guilty of voluntary manslaughter (they rejected her self-defense argument). ii. Parole officer concluded she would be unlikely to repeat the crime if she was allowed to remain free (deterrence not necessary) iii. Judge put her on probation iv. Reasons for Sentencing: 1. Protect society 2. Punish the D 3. Encourage the D to lead a law abiding life 4. To deter others 5. To isolate the D so she can t commit any other crimes 6. Secure restitution 7. Seek uniformity in sentencing. v. Judge looked at these factors and found that she wouldn t do any of them, so she suspended the sentence and put Du on probation. 4. Penal Theories in Action How much and what Punishment should be imposed? a. Queen v. Dudley and Stephens i. Issue: Can people murder and engage in cannibalism if it s necessary for their survival. ii. Facts: four men marooned on a ship, kill the weakest without his consent, it kept them alive. iii. Rules: Criminals don t testify because the burden in on the state to produce the evidence against them beyond a reasonable doubt (requires moral certainty). iv. Jury Nullification Jury has the power to find a person innocent even if the prosecution proved their case.
b. Shaming i. US v. Gementrera 1. Facts: D stole letters and pled guilty to mail theft. Judge modified sentence to make him visit the post office to see the effects of mail theft, write letters of apology, lecture at schools, and hold a sign up for 1 day. 2. D argues the sandwich board violates the sentencing reform act; causes him to go through undue sham e and humiliation, believes its unconstitutional under the 8th amendment 3. Court expressed concern that he didn t understand the gravity of his offense; shaming will have a rehabilitative effect on him; better than imprisonment and will have a deterrent effect. 4. Appeals held up sentence If it was a stand-alone condition only intended to humiliate, wouldn t work , but it was coupled with rehabilitative gestures, so it s ok c. Plea-Bargaining i. Utilitarian state has most of the power to offer a bargain ii. Retributive Inconsistent with retribution because they e not getting just deserts; bargain away sentences for the greater good d. Pardoning i. Utilitarian if you can show he doesn t deserve his punishment and is unlikely to repeat its ok; in that case, punishment would be more detrimental to society than a pardon ii. Retributive - made a determination as to guilty or time already served; punishment didn t fit the crime, but Kant would hate it because they re not getting their just deserts. e. Immunity i. Utilitarian greatest good to society is to put the worst person behind bars; not punishing him for his testimony is the greater benefit ii. Retributive again, not getting his just deserts f. Refusing to Negotiate with Terrorists i. Utilitarian greater good is to discourage terrorists activity ii. Retributive they won t get their just deserts if you let them get away with their crimes; negotiating implies that each side sacrifices something to get something else g. Recidivist Statutes i. Utilitarian usually allows for more extreme punishment to cause more deterrence; these people can t be rehabilitated, so it s ok ii. Retributive the more someone does something, the more punishment they deserve; can t duck the punishment after the third crime. Habitual offenders deserve a more stringent policy for deterrence and punishment 5. Proportionality Does the Constitution Require that Punishment be Proportional to the Crime? a. Retributive they would say yes. b. Utilitarian no, it just has to deter or rehabilitate c. Proportionality in Rape Cases: Coker v. Georgia i. Proportionality 8th amendments says no cruel or unusual punishment. Nothing in there says anything about proportionality. ii. Facts: D breaks out of prison; has two guilty sentences for rape; rapes another woman and threatens to kill her; D found guilty and sentences to death iii. Issue: Is death a proportionate sentence for the rape of an adult woman? iv. Holdings:
CRIMINAL STAUTES Limits on the Scope of Criminal Statutes: Guiding Principles of Statutory Interpretation y the statute as interpreted should not proscribe otherwise legal not proscribe otherwise legal conduct (OVERBREADTH) y statutes presumed constitutional statutes and judicial preference against striking them down. Issue: Under the CA 3-Strikes law. Recidivist Statutes and Proportionality: Ewing v. Requirement that proportionality be guided by objective factors that inform the 8th amendment. so you can t technically take a life for rape. b. argue that the rule of lenity suggests giving defendant the benefit of the most favorable Legality Principle . is a 25-life sentence proportional punishment for a recidivist found guilty of shoplifting if he has a long prior criminal record? ii. sentence cannot be grossly disproportionate to the crime. California i. it was vi. Ewing was not capital murder. and y If multiple interpretations are available. Weaknesses . ii. Ensure that criminal law is always available to punish harmful conduct even if the legislature failed to anticipate its occurrence by enacting an applicable criminal statute.Nulla poena sine lege no crime without preexistent law. 25-life for felony grand theft is proportionate. vii. His danger to the community is clear death penalty is needed to stop him a. 2. Brennan. 1. Strengths i. He had a long history of felony recidivism.Liberal Jack-ass Judges grossly out of proportion to the severity of the crime. you re not killing someone by raping them. Burger & Rehnquist Rape is not a minor crime. Retributive can t be executed for rape. no matter how severe. there is no serious injury or death of another person. death shouldn t be completely outlawed for rape. Marshall don t believe in death penalty at all 3. 1. 4. If it s eye for an eye. Provides flexibility. Facts: Ewing has a LONG rap sheet. Variety of legitimate pentalogical schemes 3. so the law can adjust to new and unanticipated situations. Four principles of proportionality 1. 8th amendment proportionality between crime and sentence. a. Issue: Are we punishing him twice? Double jeopardy? v. Common Law Crimes a. rape of an adult woman is excessive for death penalty. Rule: Death penalty is excessive for the rape of an adult woman. Rule: Yes. but the door is open to child rape d. court doesn t have the license to take away the legislative authority to sentence people to death if the state wants to convict them of it. Retributive AND utilitarian approach (deterrence) v. Powell Rape is not a minor crime. Primacy of the legislature 2. iv. does not violate the 8th amendment iii. Nature of our federal system 4.
Today a D cannot be convicted of a crime unless the legislature has enacted in advance a statutory definition of the offense. b. that s the legislature s job. because under the applicable law (after interpreting the legislative intent). an individual must be able to know what conduct is forbidden and the consequences of breaking the law g. Rule: It would violate due process to interpret the phrase "human being" to include a viable fetus. iv.But people need to be put on notice. Post Keeler legislature mad it a crime to kill a fetus. he had only committed an assault. d. Dissent says you can t declare something a crime if it was never known to be a crime. i. Rule of Lenity a. e. iii. There is an overall preference for criminal statutes over common law crimes. Class . f. Deciding after the fact that his crime would constitute murder would retroactively increase the severity of the Ds crime and penalty. ii. Shouldn t have 9 judges creating a crime instead of an elected legislature v. If the language is ambiguous. when a statute is unconstitutional and there is risk of arbitrary enforcement . Ex Post Facto Criminal Law is not Retroactive a. 2. 3. MPC: did not adopt the rule of lenity requires the criminal statute be construed according to the fair import of their terms. Strict Construction judicial resolution of residual uncertainty in the meaning of penal statues be biased in favor of the accused. common law is sufficiently broad and D s acts injuriously affected public morality. Utilitarian before deterrence can be effective. Facts: D kicked his ex-wife s baby and killed it ii. People will avoid engaging in lawful conduct because they don't want to engage in potentially criminal conduct iii. Retributive purpose of punishment is to blame those who choose to do wrong. Issue: Can the courts find a person guilty under the common law for something that was never declared a crime in the Commonwealth by the legislature when there s a common law misdemeanor on the books for indecency? iii. Dissent: viability of the baby is important. unless they have notice of what is wrong. Only used as a tiebreaker. Facts: Mochan was charged with intending to debauch and corrupt and harass a woman he never met because he called her house and suggested sodomy with obscene. Common Law Creation of Crimes: Commonwealth v. Legislature cannot enact statutes that criminalize acts that were innocent when done or that increase the severity of the crime or the punishment after the fact.i. doesn t matter that there isn t a precedent. An individual could not know beforehand if her contemplated actions were lawful or criminal ii. Sets a bad precedent c. c. Keeler v. they can't chose to commit a wrongful act. and they valued human life enough to make hurting the fetus a great misprision iv. it directs courts to construe statutory language to further both the general purposes of the criminal law and the specific purposes of the statute under consideration. b. Limits on governmental authority are unclear law must draw a clear boundary between permissible and impermissible behavior or the government will have the authority to incarcerate individuals it considers its enemies when they were actually innocent iv. Rule: yes. Mochan (1955) i. lewd language. Superior Court (CA) i.
or on judges or juries to determine what conduct is prohibited. We assume a man is free to steer between lawful and unlawful conduct ii. c. Must ensure that criminal statutes provide fair notice of what is the criminal conduct v. and has arbitrary enforcement without minimal guidelines iv. so they set up a statute with four requirements 1. Morales (Vagueness) i. vi. failure to disperse when gang members were told to by an officer was made illegal. or which confer excessive discretion on law enforcement authorities to arrest or prosecute. Vague statutes are unconstitutional because: i. Indefinite scope iii. P argues its unconstitutional because men of common intelligence must guess at its meaning an differ as to its application. They need to change the language to include a harmful purpose. this statute is vague because it fails to provide notice. Dissent (Scalia) 1. Ensures a consistent and equal application of criminal law. Insist laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited. Requirements for overbroad i. Loitering was not made unlawful. If a person disobeys. 2.4. People found this to be a minor limitation on their freedoms. they re guilty of violating the ordinance. work the price for liberation of their streets d. Facts: City wants to prevent criminal street gang activity that s responsible for the rising crime and murder rate. Officer must then order all of them to leave 4. criminalizing loitering in an overly vague way. Criminal statutes must be strictly construed . Concurring 1. could be violating it without knowing a. whether a gang member or not. Prevents police from arbitrarily choosing which person they will arrest. Reasonable men could differ on its application iv. etc an construe the term loiter more narrowly v. criminalizing legal loitering. because you don t know you re breaking the law until you re actually told to disperse. Persons much be loitering without any apparent purpose 3. City of Chicago v. Issue: Is peeping tom statute unconstitutional for over breadth? 2. Over breadth If the statute could catch innocent conduct. Issue: Does an ordinance against gang members loitering in a public place violate the Due Process clause of the 14th amendment? ii. like selling drugs. Definition i. b. If it prohibits legitimate conduct ii. Void for Vagueness a. In Re Banks 1. iii. Majority 1. Officer must reasonably believe one of the people present in a public place was a gang member 2. it s overbroad (Morales) i. Uncertain meanings make people steer far wider of the unlawful zone. iv. Laws that are so vague that ordinary people could not reasonably determine their meaning and application from the language of the statute. iii.
A common-law statute challenged for vagueness should not be tested for unconstitutionality but should be judged in light of its common law meaning. 3. statutory history and prior judicial interpretation. Separation of Powers a. Bodily movement during unconscious sleep (ex Utter) 3. ii. 2. because it gives an individual fair notice of the conduct prohibited secret peeping. Act is a bodily movement that can be voluntarily or involuntarily performed b. In this case it s illegal to peep secretly so the inclusion of the work secret keeps the statute from being vague. No consistency iii. Bodily movement otherwise not a product of the effort or determination of the actor. either conscious or habitual ii. etc. common law routes. purpose of statutes as a whole. Martin v. Common Law i. Requirement of an Actus Reus a. Jury i. BUT jury would give specific examples that aren t vague and lend a human perspective. Provides that a person is not guilty of a crime under the MPC unless his liability is based on conduct that includes a voluntary ct or the omission to perform an act of which he is physically capable. Who provides better protection to the individual. One is responsible only for those consequences that are caused by his actions. a willed act or acting on your own volition c. judicial construction would be used to ascertain the legislative will. using intent. 2. If it s ambiguous or unclear. and not for those things in which his body but not his acting self is causally implicit. the judge or the legislature? What about the jury? b. one unconstitutional and one constitutional. Juries are more representative of a community than a legislature. State . Reflex or convulsion 2.1. Must be voluntary i. crimes would be IDed on a case-by-case basis ii. Conduct during hypnosis 4. Couldn t understand expertise. e. Involuntary Acts the individual has no conscious control over these acts i. prior language. Constitutional rights are not affected 5. Rule: Common law statutes if its susceptible to two interpretations. MPC act is defined as a bodily movement whether voluntary or involuntary. use the constitutional one 4. Criminal statute must be sufficiently definite to give notice of the required conduct to one who would avoid its penalties b. MPC involuntary acts 1. how it applies in the past. Actus Reus y Crime has two parts Actus Reus and Mens Reus Actus Reus/ Guilty Act Requirement 1.
Circumstance objective fact or condition that exists in the real world when the D engages in conduct. you don't need a result b. Voluntariness refers to the act that caused the social harm. More voluntary acts involved with driving a vehicle 3. Holding: Voluntary appearance is presupposed because an accusation of drunkenness in a designated place cannot be established when the proof is that while drunk. Facts: Martin is convicted of being drunk on the highway. 3.1. A person is not guilty of a crime unless it includes a voluntary act. tried to claim it was involuntary because he acted violently instinctually because of war training. he may be criminally responsible. a. b. an officer involuntarily and forcibly carried him to that place. Decina 1. Big Rule: Unconsciousness is a defense unless it s voluntarily brought on. Facts: Guy has epileptic seizure while driving. Holding: When the state of unconsciousness is voluntarily produced through the use of drugs or alcohol. Just doing it is bad. If there is one voluntary act in the Ds course of action. Utter 1. d. 4. MPC three components/material elements a. Issue: Whether it was error for the trial court to instruct the jury to disregard the evidence on conditioned response. 4. Without the consent of will. People v. iv. Mens Rea actors state of mind regarding the social harm of the offense. 3. c. b. Getting into the car when you know you have epileptic fits is voluntary. 3. State v. If it s involuntary and they can t help but break the law or there s no notice. (Ex homicide. but the court denied D s motion to throw out the indictment. Many statutes include an attendant circumstance (ex burglary at night) ii. c. MPC says it s involuntary. Conduct physical behavior of the D i. there s no conviction. 2. Rules: a. you can shoot at them but unless you kill them you re not guilty. 2. then the state of unconsciousness is not a complete defense. i. being forced into public. charged with operating a vehicle in a reckless manner. human actions cannot be considered culpable. i. Strict Liability still need a voluntary act. 4. d. Facts: D killed his son while very drunk. but cops arrested him at home and then took him on the highway where he committed the act (drunkenly using loud and profane language) 2. Reconcile this with Martin Operating a vehicle vs. Result Crimes need to show a harmful result in order to meet the elements of the crime ii. D argued that any of the acts he committed did not involve mental processes but were physical reactions to external stimuli. Automatism can be asserted as a defense to crime. Prosecutor usually must show the existence of these circumstances. Some crimes are only conduct crimes. iii. Common Law No Duty to Act . Result consequence or outcome caused by the Ds conduct.
our system is based on preventing people from harming others. Common Law No Duty to Aid iii. Issue: Did D owe woman who was not his wife a duty to save her from death? iii. There is usually no criminality for a failure to act.a. Problems of Proof c. Beardsley Case Court attacks the character of the victim to draw the line to reign in the status-based duty vii. ii. Many states require medical providers and others to report suspected child abuse b. g. People could get in the way d. Nursing homes. A D cannot avoid criminal responsibility by claiming he was unaware that a legal duty to act arose from the facts. Someone who pushes another who cannot swim into a deep lake must take reasonable steps to rescue him. Example everyone has to fill out an income tax return. b. 6. Duty arising from Contract ix. not forcing them to act. Arguments in Favor of No Duty a. Parents-to-Children viii. Arguments Against No Duty a. Statutorily Imposed Duties v. he is guilty of manslaughter. May exonerate those would have morally objectionable reasons for failing to act. 5. 2. sometimes people have a legal duty to act. in fact that s repugnant because she s a loose woman. d. Overall Rule i. D was charged with manslaughter because the prosecutor said he had a duty to care for her. so long as it doesn t jeopardize his life or others. Theatre owner has a duty to provide reasonable emergency exits for his customers. Duty to control the conduct of another x. Duty of a landowner xii. . Status or Relationship-based Duty vi. Duty Based upon Creation of Risk/Peril xi. Business exec. People v. Just because the woman was in his house doesn t mean he had a legal duty like a husband toward a life. Beardsley i. Law 1. Would result in increased prosecutions. Voluntary assumption of Care and Seclusion of Helpless Persons e. Exceptions to the general rule: a. h. However. Facts: Woman he was cheating on his wife with took morphine and washed it down with beer and died. f. Failure to do so is punishable. Rule: There was no legal duty based upon moral obligation. iv. Criminal law typically one punishes an individual for ONLY the affirmative harm they have caused. May have the duty to prevent the company chauffeur from speeding. doctors. Line Drawing can you arrest all the people who don t help? 7. If the D willfully or negligently fails to make a reasonable and proper effort to rescue a person. b. Failing to pay taxes c. ii. Under some circumstances the omission of a duty owed by one individual to another that results in the death of the person they owe the duty to can be manslaughter.
I the only requirement is knowingly. o Aware of a high probability of the existence of the fact in questions AND o Deliberately fails to investigate.b. Specific 1. that the D deliberately closed her eyes to what would otherwise have been obvious to her. A person can t be dettered from criminal activity if they don t have a culpable state of mind. (Regina v. Knowledge or awareness of certain circumstances a. Intending the result i. b. Receiving stolen property have to know it s stolen (which is attendant circumstances) ii. but they didn't mean to kill the person. but knew that if he acted. Utilitarian i. Specific Intent i. Specific additional mens rea i. MPC knowledge of existence of a fact is an element ii. They may have intended to pull the trigger. General vs. Criminal Mind i. c. Mental States Common Law Three Types of Specific kinds of Mens Rea a. b. Imposing a duty might promote social adhesion and prevent harm. Although a society presumably wants to deter conduct. Some courts say that even if the D didn't intend the result. Intent to do a specific wrong now or in the future a. UNLESS the actual belief is non-existent iii. i. Knowledge of attendant circumstances . Oblique Intent i. Ex intentionally taking something with the intent to permanently deprive the owner of possession 2. Ostrich Instruction: can t go out of your way to avoid knowledge of criminal behavior. Must have knowledge of a material fact. Correctly believe that the fact exists. All other crimes that don t include a specific intent. . if P can prove beyond a reasonable doubt. ii. he's culpable. Definition: When you have the opportunity to know something but you choose specifically to look the other way. Definition a. v. probably general. A person who intends to commit harm is a proper subject for punishment b. Cunningham) d. D acted knowingly. Can be defined narrowly or broadly. Example anyone who knowingly transports drugs is guilty of felony o Actus Reus Transportation o Mens Reus knows it iv. D is as morally blameworthy as the D who actually intended to kill the person he shot. in order to avoid confirmation of the fact. MENS REA 1. Must be aware of the fact OR ii. Retributive i.Willful Blindness i. the result was practically certain to happen if achieved his goal. iii. Usually knowingly or intentionally b. 2. Intending the conduct vs. the mens rea requirement flows from our societies commitment ot individual choice c. Each element of a crime has a particular mental state associated with it ii. General Intent 1. Mental state is a critical aspect of the crime iii. 3. Knowledge a. Intent i.
Strict Liability Offenses a. so when there is silence. Rule: There is no mention of mens rea in the statute. d. Protects important social interests. knowledge. Basically. Arguments for i. If no mens rea = strict liability b. Minor violations. Prove ignorance of overt physical acts or purely psychological avoidance. Mens Rea Maliciously i. Must be gross. Actual Intent to Do Harm/Reckless and caused the harm ii. he claims he did for money iii. Elements i. Act pulling the pipe out of the wall ii. Regina v. Elemental intent to do/achieve a specific wrong now or in the future set out into the iii. i. The probability of such harm occurring iii. Mens Rea is not required b. Recklessness a. 5. requires an extra level of care . Wickedness is not malice. you have to convict if he does an undesirable conduct ii. ii. intentional v. If use elemental jury has to find he did the actual conduct charged with d. Gravity of the harm that s foreseeable would result from the Ds conduct ii. 4. Facts Police found semi-automatic weapon that had been modified to become an automatic weapon. should he be convicted. SPECIFIC MENS REA c. there is assumed to be a mens rea element unless the legislature says otherwise. Recklessness is sufficient is there is no mens rea. But it could be reckless because he knew there was a chance the gas could get to his mother-in-law 6. (Recklessness. Result Endangered her Life b. Under National Firearms Act. Purposely) 8. Criminal Negligence a. Cunningham a. only if the Ds failure to recognize the risk was really outrageous or stupid.o You can t avoid responsibility for a crime by deliberately ignoring what s obvious. illegal to have a modified unregistered fully automatic gun. 7. MPC exclusively uses elemental meaning i. Common Law rarely distinguish BUT i. reckless or wanton b. Courts are split on whether it s punishable. Statutory Rape c. c. Actus Reus of Statute he endangered the life of his mother-in-law when he caused to be administered poison gas. If use culpable. Attendant Circumstances cause to be administered gas iii. BROAD MENS REA iv. Knowledge. like liquor law or traffic laws ii. Elemental a. the more substantial the actor s reason for taking the risk must be. Issue is this a strict liability offense? iii. Ex Regina i. Culpability vs. The burden or loss to the D of desisting from the risky conduct iv. Culpable intent to do any socially morally undesirable conduct or state of mind ii. As the gravity of harm increases. Requires proof that a person disregarded a substantial and unjustifiable risk of which he was aware. Willful = reckless. Staples i. Can be established when i.
a. there is a minimal stigma attached to it (i. If the element involves a result of his conduct. it s disregard must involve a gross deviation from the standard of conduct that a law-abiding citizen would observe in the actor s situation ii. He is aware that such circumstances exist. Intent/Purposely (Nature of the conduct . Mental States a.e. failing to register your car) iii. Adopts subjective liability (recklessness) as the default position 1. Knowingly Recklessly He consciously disregards a substantial risk that the material element exists Negligently He should be aware of a substantial and unjustifiable risk that the material element exists. Any infraction or crime carries a stigma Categories of Mental States MPC Purposely Attendant Circumstance He is aware of such circumstances.if they were aware of the existences of the circumstances and believes or hopes it exists c. Negligence . For attendant circumstances . Definition: Elements of a crime a. 3. When he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct.If they wanted to cause the result) OR b. He consciously disregards a substantial and unjustifiable risk that the material element will result from his conduct. Arguments against i.ii. Against the law to punish an accidental wrong-doer ii. he is aware that it is practically certain his conduct will cause such a result. Adopts element analysis b. Reduces statutory mens rea culpability to four states c. Knowledge i. For conduct/attendant circumstances aware his conduct is of that nature of that such circumstances exist AND ii. Great deterrence e. Conduct It is his conscious objective to engage in conduct of that nature. Result It is his conscious objective to cause such a result. Intended to do harm/crime (result) d. Because penalties are small. He is aware that it is practically certain that his conduct will cause such a result. 2. b. May not always have all three elements of a crime. A D MUST recognize that there is a particular risk and subjectively choose to disregard that risk. He is aware that his conduct is of that nature. He should be aware of a substantial and unjustifiable risk that the material element will result from his conduct. Recklessness i. or hopes they exist.
Specific Intent Crimes (ex. v. mistake of fact is not a defense because it doesn't require mens rea a. Facts: Navarro takes four wooden beams. iii. elemental approach to mens rea. Strict liability is not recognized as a mental state. Problems with this doctrine 1. People v. Reasons for Mens Rea a. Common Law. it goes for all elements b. b. Immorality of the crime overrides the mistake which would have defeated the general intent. how can you reform them? (Utilitarian) 6. no matter how unreasonable d. No necessary mens rea 5. And if there is no state mens rea. Battery) a. No mens rea is required for strict liability. When he should be aware (material element) that a risk exists or will result from his conduct. the D assumes the risk of any of the attendant circumstances they may or may not be as he believed. 4. Jury Instructions Does the D have to have a good faith belief that the goods were abandoned.if the conduct is immoral. Should involve a gross deviation of care that a reasonable person would observe in his situation. must show evidence that this good faith belief 3. but the D is unaware or mistaken about a fact pertaining to an important element of the offense. claims he thought he could take them b. he accepts the consequences of her age.a. General Intent Crimes (ex.02(4) says that it applies to each material element unless there's a contrary purpose plainly appearing a. Every material element in every statute must be modified by one of ht mental culpability states Statutory Considerations for Mens Rea 1. it's recklessness MISTAKE Mistake of Fact 1. if they don t have the right mental state. Differences between CL and MPC a. There is a lack of consistency and predictability iii. because of the lack of mens rea. Strict Liability a. Navarro a. Burglary) a. If the offense is a strict liability offense. 2. Holding: Mens rea will be negated by a good faith belief. 2. ii. People have different moral standards 2. They re usually called violations. Moral Wrong Doctrine i. If your intent is to reform them by punishment. Reasonable or unreasonable mistake of fact can be a defense b. b. iv. If the mens rea is unclear for an element MPC 2. Don t want to convict people for engaging in innocent conduct that accidentally results in accident. CL mens rea required for one element of an offense. Ex man kidnaps a 14year old girl but he thought she was 18 3. MPC i. Each and every element of an offense will have a mens rea requirement. 4. MPC Legal Moral Wrong Doctrine . Because kidnapping is morally wrong. For an affirmative defense. 1. But in both cases the mistake must be in "good faith" 5. if there's one mens rea. Must negate the specific mens rea requirement in the definition of the offense. Therefore. has the blameworthiness of statutory rape. not crimes. Only reasonably mistake of fact can be a defense. Definition: some type of social harm has been caused. but not necessarily for every single element b. ii. 2. even if that good faith is unreasonable? c.
Will allow mistake of law in certain situations: 1. People v. 6. 2. Mistake of Law vs. No mens rea. If a statement of law is found in a statute. Lambert Case very rare situation (only Supreme Court case addressing it) ii. Willful Blindness not an acceptable defense a. jducisial decision. If you have reasonably relied on an official statement of law 2. Someone who ignores these relevant facts is as morally blameworthy as someone who actually knew. Mistake of Fact a. b. but erroneous statement of the law OR ii.General Rule: Ignorance or mistake of law is no excuse. The statute was for a failure to do something and it was based on status as a convicted felon (instead of on conduct she'd actually done) She didn't have notice. Mistake of Law is no Excuse b. MPC merges mistakes of fact and law i. Is not known to her . his mistake of the law was not acceptable because everyone could have a misinterpretation of the law and get off for it. With mistake of fact. With mistake of law. Can readily decide what is legal. that's not an acceptable defense. Therefore. CL: Fair notice/due process i. Common Law . if D is guilty of a crime. Marrero a. Proof by preponderance required c. 3. if he would be guilty of a different. you don't necessarily know what the law is. d. Some laws are particularly prohibitive or obscure ii. c. ignorance or mistake of law is NO excuse. 4. Facts: Woman was a convicted felon. D is not guilty if she does not believe her conduct is illegal AND the statute defining the offense: 1. Exceptions: where Mistake of Law will be a defense a.1. if the situation were as he supposed it. If a person relies on an official. you are mistaken about the facts and circumstances surrounding the law. but less serious crime. failed to register. therefore. 5. despite a reasonable mistake of fact. administrative order. Not everyone is update on brand-new laws iii. MPC: Reasonable reliance (Codifies all the CL exceptions) i. What a reasonable person knew or should have known. MPC 2. so mistake of law. or an official interpretation by a public office AND iii. b. moved into LA with a statute requiring felons to register. If you make yourself willfully blind to mistake a fact. Could be claimed in nearly every case e. b. Ignorance of the Law Excuses No One a. Mistake of Law 1. b. Same result. The reliance is reasonable. Arguments in favor of allowing defense (mistake of law defense is good because) i.04(3) and (4) i. Relying on your interpretation or reading of the law is not an excuse. If the law has not been published or made aware to the public. convicted iii. Facts: Even D's own misreading of the statute was no excuse and Marrero was not entitled to mistake of law jury instruction. MPC: Fair Notice i. replaces "moral" wrong with "Legally" wrong. 3. Affirmative Defense ii. Marrero thought that he was a peace officer and could carry a gun. Arguments Against allowing Defense i. 2.
f. D's conduct must have been both the cause in fact and the proximate cause of the harm 3. they are culpable. Difference between Cheek and Marrero Marrero was arguing under the law he was actually prosecuted under. this chain of events would never have begun and the harm would not have occurred. MPC: ignorance or mistake that negates mens rea i. (One of the people there was a lawyer) 2. Ex you take Tylenol and have a strange reaction to it CAUSATION 1. Jury finds girlfriend and father guilty of manslaughter 3. Cheek is arguing that he reasonably relied that the law didn't exist. Mistake of law is a defense if it negates a material element of the offense. Accelerating/Hastening Result i. On appeal he argued that he was part of a group that said income tax was illegal. Cause in Fact But-for causation a. Was not published or otherwise reasonably made available to her before she violated the law d. Ex: If recklessness is an element and D was unaware of the risk because of intoxication. Court held that he could have a mistake of law just instruction e. State v. Whether the two separate acts would each alone is sufficient to kill the victim. b.§2. If two Ds act with the intent to kill the victim. causes intestinal tears. Must create a pathological result 1. Father claims it wasn't his action that killed the kid 4. 6. d. Intoxication is not a defense unless it negatives an element of the offense. Issue: But for the defendant's act. however. would the child have longer to live . MPC combines mistake of law and mistake of fact a. Father beats him. Cannot be self-induced ii.2. i. Intoxication 1. so he believed tax returns were illegal. Affirmative defense Yes I did it. Preponderance of the evidence. there is cause in fact b. But for the Ds conduct. If the harm would not have occur unless the D had engaged in the conduct. Facts: Man prosecuted for tax evasion and failure to file tax returns. such unawareness is immaterial. Different Law mistake i. Common Law a. and either of their conduct would have been effective in bringing about the result. OR But for the defendant s act. Girlfriend knocks him down. United States 1. would the child have died? 5. Intoxication Defense i. later the boy dies 2. Substantial Factor/Concurrent Sufficient Causation OR i. Was the D's conduct necessary or a substantial factor for the harm to occur? i. MPC . because mistake of law/fact b. I had this external circumstance. Crime = Actus Reus + Mens Rea + Causation a. An omission can also satisfy the legal requirement of causation c. Oxendine 1. ii. or if the law expressly provides for a mistake of law defense ii.08 a. They were justified in doing what they did. CL: Where knowledge is a specific element of the crime/it negates the required mens rea (Cheek) i. Cheek v. Facts: Little boy dies. ii. You must have a link between the act and the social harm 2.
refuses to go inside. Acts of Victim 2. Preexisting medical conditionals are foreseeable. Responsive a. Decides whether a D is responsible for causing harm even though an intervening cause helped bring about the harm. Court: Judge should have instructed the jury about the definition of causation. crashing. Kibbe claims he's not the proximate cause iii. freezes to death.6. The D is more likely to be relieved of criminal responsibility if there's been a free and deliberate intervening human agent Acts | Intervening Events 1. Kibbe v. Human Intervention WILL break the causal link 1. Harm must be intended or reasonably foreseeable 1. If it s' a coincidence to what you did. therefore. Not remote or accident iii. Velazquez v. Holding: D's mere participation in the race was not a proximate cause of death because in effect. you still have proximate cause ii. Prosecutor charges the robbers with his death ii. But-For Causation Harm . Court: Prosecutor showed no acceleration. (Take the victims as you find them) 1. drunk. provided the specific causal mechanism was not entirely unexpected or coincidental b. the deceased killed himself by his own volitional reckless driving. you're still responsible for causing the death because you take the victim as you find him b. dies ii. If D intended a particular harm or created a risk that a particular harm would occur but it occurs in a manner different than intended or expected. State i. Facts: D and V drag race. It's when a dangerous force has come to rest at a position of apparent safety. MPC 2. The Manner in Which it Occurs (harm within the risk) a. Issue: Whether D's reckless conduct caused the death of the victim? iii. i. He gets hit by a car and dies.03 a. Situations i. ii. courts will generally find the intervening cause to be dependent. it doesn't matter d. The free. 4. iii. Apparent Safety This intervening cause will break the causal link. husband is not liable because she could have gone into apparent safety. loses control. Ex husband beats his wife. woman flees. 5. Facts: Ds rob a man and leave him at the side of the road. then you're responsible because it's foreseeable 2. V turns around and goes back toward starting line. V is drunk. 1. can't be convicted of manslaughter because they don't know that the beating accelerated. Coincidental v. Henderson i. Responsive Act: Occurs in reaction or response to the Ds prior wrongful conduct b. Legal Cause = Proximate Cause a. Coincidental Act : Does not occur in response to the initial wrongdoers act c. Harm intended or Risked vs. Intended Consequences If the D intended a certain result by a certain means and that result came about by those means. Acts of Nature 3. But if it s a response to what you did. Acts of a Third Party c. aggravated or caused the death. if a person who has a history of heart disease dies from fright during a robbery. deliberate choice of another human 2.
and Willful i. A person is presumed to intend the natural and probable consequences of his act b. is sufficient to support a conviction ii. ii. 14th C England: The unlawful killing of another human with malice aforethought. Today a. Planning Activity 2. Murder a. Allows legislatures to impose traditional causal element in a statute if they wish. rather 4 constituent states of mind: 1. 1. Brutality of killing b. First-Degree Murder a. but does not address concurrent causation. and Transferred Intent i. iii. Concurrent Causation. Pre-20th C a. Must have brooded over it for a reasonable period of time (deliberated) iv. nevertheless acted in a way that they knew to cause a high risk of death 2. c. Transforms much of the analysis about causation into an inquiry about the Ds culpability. though not intending to kill. Intent to cause grievous bodily harm 3. NOT established if the harm would have occurred without the Ds conduct. Done after a period of time for prior consideration 1. Provocation 2. which is of sufficient duration for the accused to be fully conscious of what he intended. b. Persons who. Forrest: Premeditation determined by looking at: 1. Then killed willfully (or inflict GBH willfully) . Other Causation. Conduct 3.i. Dealing of lethal blows post-death 5. Common Law 1. Intentional and unlawful killing of a human being with malice. Intent to kill 2. no degrees. Proximate Cause i. Whether it can still be said he caused the prohibited result with the level of culpability required for the definition of the offense. HOMICIDE 1. Prosecution must establish but for causation and any other specific causal requirements imposed by the Code or the law defining the offense. These doctrines are instead looked at as permissive inferences which the jury may use or disregard at its discretion 3. Presumed Malice 1. 1st Degree Premeditated. Three elements to show the requisite premeditation and deliberation 1. A killing committed with a deadly weapon was presumed to have been committed with malice 2. Depraved-heart murder 4. Gradations of Murder 1. The result has to be a probable consequence of the act. Deliberate. The D s conduct must have caused the prohibited result. ii. Motive 3. Threats 4. Any interval of time btw forming the intent to kill and the execution of that intent. They must have thought about killing their victim iii. deliberation and premeditation i. Manner of Killing ii.
instead characterizing as death eligible all killers who cause the death of another human being purposely. Was the killing a murder (was it done with malice aforethought)? b. Depraved heart acted with extreme recklessness 1. Intent to Kill 2. kidnapping or felonious escape 2. Must be a high probability that the act done will result in death and it must be done with a base antisocial motive and wanton disregard for life. Rule equates the intent to commit the felony with premeditation and deliberation. Chaves Categories of Murder 1. or flight after committing or attempting to commit robbery.2 MURDER 2. Criminal Negligence 4. appeals because the jury instruction equated "willful. it was first-degree. If yes. The mens rea to commit the felony serves as the intent to commit the murder. MPC: if it's reckless its murder. or recklessly under circumstances manifesting extreme indifference to the value of human life 1. No fence. deliberate and premeditated" with a mere intent to kill 2. Berry dog guarding weed mauls small child. Abolishes degrees of murder. It doesn t deter crimes because they didn t have the initial mens rea. c. 4. . deliberate and willful? c. how do you deter an accident?. a.v. Unjustifiability of taking the risk b. arson. Test to Determine First-or-Second Degree: a. "Any death occurring during the course of a felony is murder" b. if no. Transferred Intent i. 210. 2. was it premeditated.Degree Murder a. Where the killing was unintended it would be far more sensible to enhance the sentence for conduct over which the felon had control. rape. 3. rather than automatically elevate the killing to murder. ii. Recklessness and indifference are presumed if the actor is engaged or is an accomplice in the commission of. Intent to Cause Great Bodily Harm 3. 3. Facts: Guthrie kills his coworker. Felony Murder (see below) c. Rule: Jury should be instructed that murder in the first degree consists of an intentional. If a killing is murder (committed within the broadened notion of malice aforethought ) and was not premeditated. b. If so. knowingly. Model Penal Code 1. burglary. High probability of causing death. State 1. second-degree. it is second degree. Felony Murder a. Guthrie v. Recklessness v. or an attempt to commit. Provides a harsh penalty/deterrent by making an unintended killing a murder. Second. specific mental states that require proof of particular acts and thoughts. 2. deliberate and premeditate killing which means that the killing is done after a periods of time for prior consideration. Against 1. such as the carrying of a deadly weapon. or deviate sex by force or threat of force. Unjust. any interval of time between the forming of the intent to kill and the execution of that intent. Policy Debate i. The duration of that period cannot be arbitrarily fixed. which is of sufficient duration for the accused to be fully conscious of what he intended is sufficient to support a conviction for first degree murder. no legitimate basis 2.
Ds charged with murder under felony-murder law b. The Shield Cases 1. Courts have wrestled with whether criminal liability should ever be predicated on tort causation concepts. Punishing both the accidental and deliberate killings that result from the commission of a felony is the strongest possible deterrent 2. rape. Must remember that an act is justified depending not on its results. the felony murder doctrine applied to any death that occurred during a felony. The use of an objective standard in assessing criminal guilt seems undesirable ii. Facts: D steals tires. Test for what the court has to look to discover is something is inherently dangerous i. Howard a. People v. D challenges on appeal because he committed a nonviolent daylight burglary c. Felon has the evil mind necessary for the mens rea d. but on the circumstances under which it occurred. 2. Only applicable where there is: 1. The Proximate Cause Theory 1. Predicate felony must not be one involving personal injury but have a purpose other than inflicting harm. Facts . no FMR. Statutes first . Robbery 2. Arson 4. In the abstract is there any way this felony could be carried out without substantial risk of death? If yes. If D uses V as a shield. Foreseeability raises questions 3. Inherently Dangerous Felony 1.ii. high speed chase. but in dicta claims the law is irrational because an automobile burglary is not dangerous to human life (no one was in the van or the lot during the burglary. Case by Case determine if that certain crime was inherently dangerous. man dies. Excused Killings 1. is murder of the first degree. robbery. she could not be held for the resulting unintended death under the felony murder doctrine. b. d. Kidnapping 6. D is liable e. Court upholds the murder conviction. Law: All murder which is committed in the perpetration of. burglary. Tests to determine if a felony is inherently dangerous a. mayhem. Common Law Limitations to the Felony Murder Rule i. Rape 3. MPC: severely limits the doctrine. The In-Futherance or Agency Theory 1. iv. this would be manslaughter. Presumption hat the D was murderously reckless with regard to the possibility of death is rebuttable by the D f. Felonious escape 7.Man flees the scene of a crime and runs a red light. Person-endangering felonies are insufficient 1. or attempt to perpetrate: arson. People v. b. iii. police chases them. Generally: As originally understood. Fuller a. Justified v. Courts have required the killing to further the criminal purpose iii. 2. For 1. 2. or lewd acts with a minor. c. but this clashed with notions of causation i. Ex if a woman intentionally beats her child. Killing must be done during the felony (either while the attempt is going on or during escape) ii. Burglary 5. no deterrence) 3. Court: Felony can only be used for basis of conviction felonies that are inherently dangerous and create a serious risk of death.
There are certain felonies that are inherently dangerous.ii. Capital Murder a. where the killing is done in the heat of passion as a result of legally adequate provocation i. cites the Baldus study as reason why the new death penalty is still capricious. Rule: D doesn t argue that there was discretion or discrimination in his own case. allowing its application only in cases involving robbery. MPC: Criminal homicide constitutes manslaughter when it is committed recklessly or when it would otherwise be murder but is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuses i. the Code raises only a presumption that he D was murderously reckless. b. burglary. d. and malicious possession of a destructive device. Definition a. Kemp 1. Serves for both deterrence and retributive social purposes 2. If no MPC adequate provocation 2. Is the felony dangerous by its very nature in that it cannot be committed without creating a substantial risk that someone will be killed? 2. arbitrary and racist. 3. banned the death penalty in the US and GA under the legislatures changed their death penalty laws to amend this problem. When society has declared certain inherently dangerous conduct to be felonious a D should not be allowed to excuse himself by saying he was unaware of the danger to life because by declaring the conduct to be felonious. Reasonableness is determined by the point of view of the person in the actor s situation under the circumstances as he believes them to be ii. Dissent Powell Thinks they should use the case-by-case test. e. Voluntary a. The trial process was bifurcated. kidnapping or felonious escape ii. Georgia 1. 38 States and the federal government have the death penalty. Rule: For the death penalty to be constitutional. 1. Still. kidnapping. g. d. 2. including poisoning. Unlawful killing without malice aforethought. To allow a convicted criminal to say that his conviction couldn t stick because it s based on an un-uniform jury system would dismantle the entire criminal justice system Manslaughter 1. 1. c. sentenced to death. just that it exists in the system. No timing aspect in MPC c. The state statute at the time was capricious. Ex's of Passion a. Georgia 1. and disproportionate. Illegal arrest though you were being arrest illegally . b. the prosecution must then prove the presumed fact (mens rea) beyond a reasonable doubt. Fuhrman v. Facts: Man found guilty of murder. rape. 210. Tests in the abstract 1. too discretionary. arson. Holding: Death penalty did not violate the 8th and 14th amendments because the sentencing guidelines and aggravating circumstances allowed the jury to control their discretion so that the result was not discriminatory. Provocation: 1. society has warned him of the risk involved. 2. Gregg v. Once a D provides sufficient evidence to raise an issue on which there is a presumption. McKlesky v.2(b): Limits the doctrine. CL: unlawful homicide without malice aforethought. Model Penal Code i. it is rebuttable. cannot involve unnecessary and wanton infliction of pain AND it must not be grossly out of proportion to the severity of the crime.
Girouard case Words alone do not constitute adequate provocation a. gender. but they goaded you about it b. or aggravated assault 2. some courts allow for a rekindling effect c. Jersey v. Question of Law: the defendant must not have had enough time to cool off 2. Legally Adequate Provocation i. Battery. Though some jurisdictions have allowed this b. Current Doctrines Current Doctrines (reflect some changes to historic doctrines) a. Issue: Whether alcoholism or other facts should cause the judge to deviate from the "reasonable person" objective standard (ENGLISH CASE) b. The gravity of the provocation 5. Informational words i. its manslaughter not a murder because the killing was done in a sudden passion during a chance occasion. Voluntary Manslaughter Court have difficulty explaining the rationale of manslaughter 1. Depression and Lack of Sleep are allowed to be considered for manslaughter 6. Whether the Ds characteristic led to the loss of control? a. physical disabilities. Legislature is recognizing that some murders are worse than others. had to find the spouse in bed with another. having regard to the actual provocation . mutual combat. but usually NOT psychological characteristics) b. Can't deter someone from committing murder if they're doing it in the heat of passion after they've been provoked 3. would a reasonable man act as the D acted? 4. Ask. Illegal Arrest b. Two ingredients for provocation: c. but then one stabbed the other.b. mutual combat. Insulting words v. Battery. Cooling off Period i. Injury or abuse to a close relative d. If a D has cooled off is up to the jury to decide ii. c. Can include evidence of mental abnormality of D b. 2. Rule: Intoxication can't apply when deciding if D exercised self-control. Ex: Reasonable spouse subjected to years of abuse might snap in response to what otherwise might be a trivial action on the part of the provoker c. Heat of Passion and Cooling Off i. Some cases have held the reasonably prudent person to be in the actor s shoes (ex: age. Determined with reasonableness 1. Now. Provocation as a defense i. Question for Jury: length of cooling off period ii. Cumulative Provocation i. Look at: a. Adultery 3. Historic Doctinres a. Holly Example of a reasonable person is subjective. But evidence that the D was suffering from alcoholism was not a matter to be taken into account by the jury when considering their verdict. Adultery. Reasonable Man Test i. Information you didn t' see your spouse in bed with someone else. a. Adequate legal provocation became anything that could cause the reasonable man to act in passion 1. Cooling Off Period i. 3 categories: 1. If two men started with a fist fight. 2. or aggravated assault i.
has to be an immediate reaction. words like inflammatory taunts would be sufficient provocation. State v. MPC requires Extreme Emotional Disturbance a. CL adequate provocation. Therefore. Cassassa i. Rule: The D must have been under the influence of EED< which is very subjective. 4. failure to furnish medical care would not have been said to have proximately caused child's death. 5. a person having ordinary powers of self control would have done what the D did. Rule: Parental duty to provide medical care for a dependant minor child is recognized at common law. no cooling off period. Slogans were irrelevant because they proved he didn't mistaken or accidently drink. (EED) b. internal EED. Facts: Ds were charged with manslaughter for failing to get their kid medical attention (gangrene tooth case) 2. D argued it was error to allow them to be admitted because they were used to show him as the type of person to do this crime. attacks character. 2. Time Frame 3. they still have to be held to a reasonable person standard. iii. Extreme Emotional Disturbance ii. Reaction to D by Stimuli 5. Distinguishing levels of severity a. State v. Requires reasonableness for the EED. Degree of Stimuli 2. Any impetus for the disturbance is sufficient. Unjustified Risk-Taking i. Ex. Williams 1. Proximate cause Requires consideration of the question of when the duty to furnish medical care became activated. Hernandez 1. had sticker on his truck with drinking slogans that the court admitted. (Heat of passion) b. If it was activated after it was too late. regardless of good intentions or ignorance. Rule: a. MPC can build over time. not criminal negligence b. People v. Facts: Jury found Hernandez guilty of involuntary manslaughter. 3. Criminal Negligence when the D fails to be aware of a substantial and unjustifiable risk that will result in a gross deviation from the standard of care that a reasonable person would exercise in the situation. a. Common Law . No time limit or cooling off period i. b. it is not limited to legally adequate provocation ii. Common Law is much stricter than the MPC on provocation. Must have a reasonable explanation or excuse for the EED. Heat of passion v. Common law in this case only requires ordinary negligence. Involuntary a. 3. Cause a. EED 1. Dissent: Jury should have been able to decide if the circumstances known to the D in deciding whether to condemn the failure of perception ii.and their view of its gravity. 4. a. 3. but its determined from the viewpoint of the person in the actor's situation with the circumstances as he believes them to be. he was driving while drunk. Misdemeanor Manslaughter: accidental death that occurs doing the commission of a misdemeanor (even if it isn t inherently dangerous) 4. and the victim must cause you do it and you must be reasonable person. Severity of risk i. how a reasonable person IN THAT SITUATION would act. Trier of fact has the discretion here.
Resistance was required and the female had to show physical resistance in a way that demonstrated a lack of consent. vi. Controversial. MPC Negligence (§2. D could not be convicted of rape. 3. Sex ii. c. Rape 1. Undertaking a risk of this magnitude for this purpose is not what a reasonable person would have done in this situation. Generally considered to consist of physical compulsion or violence (beyond that involved in the act of intercourse itself) that effectively subdued the woman 2. Spousal Immunity 1. resistance is implied b. but not the risk: manslaughter ii. Knowledge of the facts. gross deviation from reasonable person standard of care. negates knowledge of non-consent a. Background a. d. 16% of rapes are never reported and less than ½ of reported rapes lead to an arrest. iv. a. Failure to recognize risk. Against the will of the woman iv. Gender specific. If a woman consented. not reasonable. even if unreasonable. given what defendant knew. This is a jury question. then the D cannot be convicted for rape. Common Law a. Conduct specific iii.02(d)) i. If a woman consents to sex. 2. There is no mens rea for rape it s a strict liability offense. iii. MPC Negligence (§ ( 2. had to be vaginal sex. Therefore. Morgan 1. Force 1. 6. Rule: required the P to establish that the D knew the woman had not consented. Degree of unjustifiability a. Consent 1. Consent i. No spousal rape iv. c. against her will by use of force [without consent]) i. And although often not explicit.02(d)) (not Civil Negligence) 1. Common Law no negligent homicide b. non-consent has been transformed into a requirement to RESIST. 2. ii. Did not apply to cohabitating. Required that the victim s fear of serious harm be reasonable (had to be a threat of seriously bodily injury or death to victim or third person) iv. then you've established consent. Characteristics i. Threat of Force 1. unmarried couples ii. ii. Had to be against the victims will and they had to be able to show force. By means of force iii. Had to be an immediate report of rape v. Elements (Carnal knowledge of a woman. i. b. Some courts if you don't fight back. A Ds belief that the woman was consenting. And without her consent v. Consent was determined by a judge or jury. Many courts required that the woman have physically resisted iii. not one s wife. Originally was a property offense. Some courts concluded that No was not enough 3. Attacking the Credibility of the Complainant .1. Facts: solider and wacked out husband who had them rape his wife 2.
No resistance. First appeal whether or not there was sufficient evidence of the required force. with a woman who was unconscious. Want resistance to prove a lack of consent ii. Facts: D and V were in college. Berkowitz 1. Commonwealth v. ii. Facts: D and V are at a party. The PA statute did not require resistance. Common law expanded so that rape could occur even if no force was used. has sex with all three. d. 2. Statute: Rape vaginal intercourse by force or threat of force against the will or without the consent of another. he took her keys. Ex: Sex with a girl under age 10. Verbal resistance is still resistance. Mistake of Facts a. Second Appeal Chief Justice fact for the jury to decide. Statute: Intercourse must be accompanied with force such as to overcome the woman s will sufficient to accomplish the man s purpose of having sexual intercourse with her against her will or threats with engendered fear reasonable in the circumstances. After this case. Facts: V met D at a bar. Issue: a. iii. iii. we don t know if a look would be enough. no rape.a. could have left but didn t. Rusk v. Court acted like a second jury and substituted their own judgment (Pat was on the make). went into Ds room. 3. V says she was raped. Second Dissent a V can t just say I was really scared to transform a seducer into a rapist. 3. non consensual sex is rape. ii. 5. Dissent of First Appeal Consent and force are not the same thing. Commonwealth v. i. a. but she s resisting). Verbal resistance isn t enough unless it s coupled with a sufficient threat of physical force or mental coercion. or mentally incompetent. D says she volunteered to do it. the legislature changed the statute to say that non forcible. Common Law: Force i. D was prosecuted for sexual intercourse of forcible compulsion because she wasn t unconscious. 4. 3. Jury Charge Ds wanted P to have to prove actual knowledge of the lack of consent (claim mistake of fact) . Evidence was legally insufficient for dismissal. so it was reasonable for her not to resist. Rule: Court held there was no threat of forcible compulsion because she only resisted verbally. First appeal not enough. when all he did was look at her. She has to resist and make it plain that she regards the acts as repugnant. she said no. no fear. Resistance 1. ended up having sex. so she could have done something about it. D pushed V back with his body and had sex with her. was automatically rape e. Statute: Sexual intercourse by forcible compulsion OR threat of forcible compulsion that would prevent resistance in a reasonable person OR if the victim as unconscious or incapable of consent is rape. she said no repeatedly. but didn t resist. Sherry i. c. Common law used to allow cross-examination of the victim v. no force. he asked her to come upstairs. State 1. etc. Test have to show the victim resisted and was overcome by force OR that she was prevented from resisting by threats to her safety. No evidence to show that if she had resisted he would have harmed her. There wasn t enough evidence to show that it was reasonable for her to have fear of force. Legally Ineffective Consent 1. V was choked. Because we don t know how big they are. V goes home with D (playful overtones. 2. b.
Boro v. c. But they don t apply this charge because it was not raised at trial. By knowingly making a false representation of material facts 3. And asportation e. MPC a. ii. Could have a situation where there is no consent but because there was no force. Rule: There s consent and a lack of force. Larceny crime against possession (not ownership) a. Larceny by Trick i. so even though they feel bad. that she got a disease from a toilet seat and that she can either have an extensive treatment that s expensive and invasive OR have sex with someone who s been injected with a vaccine which is less expensive. Actus Reus i. By knowingly making false representations regarding material facts or making false promises iii. tangible property f. With the intent to permanently deprive him of it 2. Sexual Intercourse ii. Ex: you pay for gas with counterfeit money. With an intent to defraud . And although no explicit in the statute. Becomes important to distinguish between lack of consent and force. the woman must have resisted (10-40% of rape accusations are false) THEFT 1. By force or intimidation d. Real. By means of force iii. Larceny by False Pretences/ Larceny by Trick a. Characteristics i. Act must violate possession of an item. Superior Court i. b. if the D has already obtained lawful possession of the property. Taking title and possession of the property of another 2. b. Robbery a.iv. Rule: It has to be a reasonable mistake of fact or a good faith mistake not an actual mistake. Taking of property b. With the intent to defraud 4. Facts V is told by someone claiming to be a Dr. Trespassory Taking b. it s not rape. You take title of the property. Must be without consent and it must be forceful ii. his later use of it cannot be a trespass. but you give false money. Trespassory i. Against the will of the woman iv. To deprive him of it permanently 3. 5. she s out of luck for a rape charge. Of another g. Have to carry it away somewhere d. 4. False Pretenses i. Taking i. Rape by Fraud a. With the intent h. Actually taking title of the property with the intent to deprive 1. Without her consent v. From the victim's person or presence c. And no court has ever allowed a mistake of fact in a rape trial. Taking possession of the property of another ii. Of the personal property i.
but you never take title of the gas. By one who is already in lawful possession (not mere custody) of it Differences between embezzlement and larceny a. Common Law: a. and . c. run off without paying. Embezzlement a. Reasons for no punishment a. would clearly be criminal (even if the D doesn't know that) 2. 1. Utilitarian most individuals will succumb in the circumstances. An actual conversion must occur b. Common Law Overall a.1. Even if a victim facilitates a crime he cannot be guilty for being victimized. Must have a reasonable expectation that action will abate the danger he seeks to avoid c. Necessity 1. the conversion for embezzlement is against ownership.2. Of property d. d. Reasons for . then your intent was not to permanently deprive them of it. 5. c. . Of another e. Act charged must have been done to prevent a significant evil d. Actor cannot have substantially contributed to the emergency g. Actor must be faced with a clear and imminent danger b. Retribuvist anyone who succumbs in these terrifying situations is not morally blameworthy for doing so and should not be punished. A fraudulent b. They don t' have the correct mens rea Ds mind is blank because he is being forced to commit the crime b. c. Conversion c. 7. EX: you run out of gas.3 Mens Rea: For larceny and robbery you must have the mens rea of the intent to steal it.4. false pretenses because you appear as though you're going to pay for it. Can't deter someone from doing something when they're thrust into a situation where death seems imienent. Defenses Definition: Any condition or circumstance that prevents conviction for a certain offense. There can't have been an adequate alternative to the act e. the harm to be prevented by criminalizing the act is outweighed by the social benefits. i. Therefore. they're going to die anyway) ii. To do something that involves injury to his or another's person or property and that. D is acting under extraordinary pressure b. Lawmakers cannot have previously anticipated the choice such that it conflicts with Ds choice 2. Don't want to punish because: 1. Types of Defenses a. From which there is no reasonable escape c. they're not going to be intimidated by a threat of later punishment. Justification precludes criminal liability where despite all the elements of the offense being met. in the absence of emergency. Can't deter someone who doesn't want to act like this (there really is no serious deterrence. not possession MPC: Demise of distinctions surrounding trespassory taking a. Combined theft definition: 223. If you meant to borrow it and give it back. They don't have the correct mens rea. 2. The original taking must NOT be trespassory c. 3. 6. you just run off with it. Ds mind is blank because he is being forced to unwillingly commit the crime. Failure of Proof Mistake of fact negates mens rea?? b. Harm cannot be disproportionate to the harm avoided f. so you can't deter them with threats of punishment at a later time.
But if its direct disobedience. Cannot be a legal way to prevent the harm (here. Plenty of lawful alternatives iii. Much more subjective than CL c. it is better that the aggressor. a. No immediacy requirement b. Retributive only want to punish people with a blameworthy state of mind. you can excuse them.a. Overarching rule: a. There was no emergency ii. D must believe his conduct is necessary to avoid harm to himself or others and that he harm inflicted by committing a criminal act is greater than that sought to be avoided by the criminal law d. Political Necessity a. 3. 1. if you can't avoid the physical harm by following the law. Does not distinguish between threats from human versus nonhuman forces iii. there must be: (Peterson) i. 3. b. Belief that the force is necessary to prevent deadly force 1. it's ok because you have to break that specific law to make your point about the illegality of that law. If it were otherwise. (Goetz) v. 2. Belief must be honest and reasonable 1. who s anti-social nature is manifested by his conduct. the dangerous person would remain alive and a threat to others until he s taken into custody. Extent of force used AND imminence of force must be reasonably believed necessary. Nelson (guy gets truck stuck in mud) a. Rejects most common law restrictions on the claim i. you're just breaking another law to make your point. Threat of actual or apparent deadly force ii. MPC: a. Actor cannot have been the aggressor. Utilitarian: Want to avoid social harm. therefore the harm created in defying the law cannot outweigh the harm of the Congressional law. If the D has been reckless or negligent in placing himself in the position where the necessity occurred. Does not require that he actual infliction of the harm be imminent ii. they could petition Congress or vote) c. Cognizable Harm a law enacted by Congress cannot be considered a cognizable harm. The harm caused was disproportionate to the possible harm. Self-Defense 1. An unlawful and immediate threat of harm iii. then the right of self-defense returns . he may still raise the claim in all instances where he is charged with a purposeful or knowing crime 5. Schoon indirect civil disobedience is not ok because you're not breaking the law you're protesting. because if someone must die in a deadly conflict. (Goetz) 2. A person who causes the attack cannot claim protection if the initial aggression has not ended. 4. No necessity defense because: i. Does not restrict the claim to instances involving a threat of death or serious bodily harm e. To use Deadly Force. There must be no safe retreat possible iv. you should have the option to do it another way b. if they have no other choice. iii. Retributive defensive killing is justifiable because the aggressor forfeits his right to live when he threatens an innocent person s life. But if the aggressor makes it clear that he withdraws. Reasonable person in the circumstances. Utilitarian socially desirable. be the victim.
Both the extent of the force used must be reasonably believed to be necessary and the imminence of force to be used against the D must be reasonably believed. Peterson) i. unless there is an applicable statute) iv. Even if it seems clear that the harm at the hands of another is inevitable. it could put an end to the entire episode. ii. The danger must be pressing and urgent. iv. Clarifications: a. a D could be mistaken in his belief that he is about to be attacked or about the need to use deadly force to repel the attack. A person who does not retreat loses the entire claim of selfdefense. Facts: Punks in Peterson's yard are stealing his windshield wipers. other attendant circumstances will come into play to decide if there is proportionality or reasonableness. antagonizes the guy who is leaving to come at him with a crowbar. Problem with the immanency. (Aspen) In states that do have a duty to retreat. b. 1. but must be reasonable. iv. and some statutes explicitly provide the evidence is admissible . A person is also allowed to defend themselves if the aggressor's force is wrong. c. it's usually an independent criterion. Battered Wife Syndrome i. They can t retreat any further. ii. ii. etc. shoots four men. Goetz Case i. d. All courts admit evidence of the syndrome. Therefore. ii. DC does) iii. iii. AND the self defense must be proportional to the perceived harm. Castle Doctrine no duty to retreat in your own home. Peterson goes into the house to get a gun. Many jxn allow the court to consider specific aspects of the Ds character. (Goetz) i. In self defense cases. There is a duty to retreat if possible (US v. she becomes the aggressor against the sleeping husband and can't avail itself of the self-defense claim (under common law. according to modern standards. Can t be at a later time. 4. So even if the battered wife reasonably believes that the battering will continue when the husband wakes up. MPC: interpreted to be the objective standard. Immanency must be immediately or at the moment of danger.b. e. Facts: man goes crazy in subway. or in his belief that retreat is not likely to be successful. 1. Holding: There is a duty to retreat if possible. You cannot use more force than necessary to repel the aggressor. BUT THIS BELIEF MUST BE REASONABLE. ii. If the husband beats her and falls asleep. though not unlawful b. the use of force is premature until the threat is immediate. your past experience and background is relevant. Defense of habitation can kill to protect the sanctity of his own 2. Size. Self defense usually demands that the D take any and all escape routes available before taking human life. shoots the man with the crowbar. f. Rule: What a reasonable person would do in these circumstances. Can either say he's withdrawing or physical remove himself from the immediate area? 2. but it's still an objective standard (not subjective that D had a reasonable belief) iii. Consider reasonable person AND Ds courage. The home is the person s final sanctuary from external attack. Mistake: i. iii. (thought a majority of jxn's say there is no duty to retreat.
allows them to be prosecuted for manslaughter. iii. Kidnapping ii. she gets a defense of others charge. Ds belief to use force doesn t have to be reasonable. Cannot be an aggressor to use deadly force iii. Limits: i. damage. overall. Exception to the exception ii. But if he then is met with what reasonably appears to be deadly force by the thief. Cannot use deadly force solely to protect property. Here. Deadly Force: Definition i. Deadly force is unjustifiable unless the actor believes that such force is immediately necessary to protect himself on the present occasion against: 1. Adopts changes wrought in American courts retreat is required except at Ds home of office. does not apply to killing an undercover cop who is going after a criminal. Can also use it to reenter property or to recover property immediately after its been taken. (wouldn't be a necessity if could call) ii. Castle doctrine i.5. even if you didn't know) v. they would. so long as the D knows he may retreat in complete safety. 1. such as calling the police 1. Use of deadly force is not justifiable under this section unless the actor believes such force is necessary to protect himself against death. May use for only if the third party would be justified in using force to protect oneself (hence. And if the thief does not use deadly force but the homeowner does. Must retreat from home or office if: actor was the initial aggressor OR if he is attacked by a coworker in their place of work iv. then the thief can use deadly force because the homeowner has surpassed his legal right. Ceballos . so even if it wasn't viable. Forcible rape 4. non violent harm c. Exceptions a. b. Allows the D to have an honest belief to allow the claim. There cannot be time to use other lawful measures. e. so therefore another person could act to defend them on their behalf. Defense of Others 1. f. Uses immediate instead of imminence can use deadly force sooner. depending on when they feel that there is an immediate need. Death 2. dispossession. People v. c. Rule: If unborn children were able and allowed to defend themselves. D can use non-deadly force to defend property when he has an honest and reasonable belief that it is necessary to protect real or personal property from imminent unlawful taking. Defense of Property 1. but if the D has been reckless or negligent in reaching the mistaken belief. the Legislature wants to protect all fetuses. There is a duty to retreat BUT 1. d. MPC: a. but most specific justification defenses require a reasonable belief of harm. People v. he can respond with deadly force in self-defense. Serious bodily injury 3. Common Law a. b. or trespass. Has to warn the aggressor to stop unless it is clear that the warning would be useless or it would cause risk to himself or his property. Human life is more than property. b. Kurr a.
she believes she is defending her dwelling against someone with no claim to possession OR ii. Such request would be useless OR ii. If a person is not told when the beating will occur. Tools were stolen. Force. The actor believes that the person against whom he uses force has no claim of right to the possession of the property and into eh case of land. Request to desist force is justifiable under this section only if the actor first requests the person against whom such force is used to desist forum his interference with the property. provided that: a. It would be dangerous to himself or another person to make the request OR iii. Excuses defense that precludes liability. The force is used immediately or on fresh pursuit of such dispossession OR b. OR 3. MPC: Limitations on justifiable use of force a. D argues had a right to do indirectly what he could have done directly. 2. Serious bodily harm or death e. An imminent or immediate d. A threat from a human being of c. cannot e used if the actor knows it may expose the aggressor to serious bodily injury c. b. disproportionate force. b. Rule: cannot use deadly force to defend your property unless there's a fear of great bodily harm. so he set up the trap. There can't be a reasonable opportunity to escape harm. the aggressor is committing a serious crime and has used or threatened deadly force OR iii. iv. Where the character and manner of the burglary do not reasonably create a fear of great bodily harm. Common Law a. Imminence i. are of such urgency that it would be an exceptional hardship to postpone the entry or reentry until a court order is obtained. No threat to property will suffice. Substantial harm will be done to the physical condition of the property which is sought to be protected before the requires can effectively be made. Any attempt by him to commit a violent injury was not unlawful. unless the actor believes that: i. Deadly force can only be used if: i.i. 2. despite social harm of the offense and the fact that the actor has fulfilled all the elements for conviction. the circumstances. Facts: D had a booby trap in his garage because he had equipment in there. and therefore neither was the assault iii. d. MPC: To effect an entry provided that the actor believes he or the person by whom authority he acts was unlawfully disposed upon such land or movable property and is entitled to possession. 16 year old entered and shot in the face. v. even if otherwise justified. there is no cause for exaction of human life or the use of deadly force. To himself (or his relative) f. Human life is more important than defense of property. The actor's use of non-deadly force would expose her (or someone else in her presence. State argues trap gun constitutes excessive. c. Requires a personal injury. as the actor believes them. Duress 1. Not of his own doing. the threatened injury is not imminent ( though usually a jury question) . CL Elements: a. the actor shouldn't be held liable because of his circumstances i. Circumstances were not such that the use of deadly force was warranted.) to substantial danger of serious bodily harm. ii. A reasonable fear of b.
e. D cannot have been a aggressor i. Duress and MPC 1. General: a. and there is no restriction of imminent harm. Duress and Homicide 1. did a person create his own conditions by entering the armed forces? Unclear. Random Rules: i. If a threat is continuous or open-ended. There is a duty to listen to superior officers in the military though. but they do it anyway 2. Common Law a D cannot claim duress if he killed a victim. Criticisms 1. but they do it anyway. Several Analytical Inquiries a. 3. Insanity Defense 1. the fear is real. And since it's not allowed in homicide cases. All or nothing approach 4. so it could be the threat of a minor physical harm. Didn't know nature and quality of his action OR ii. (thought some states have overturned this) iii. Requires a Ds believe that the police cannot protect her to be reasonable. Varied the common law's requirement of reasonable ness by requiring that the threat involved would have similar affected a person of reasonable firmness in the Ds situation. Some people know that what they're doing is wrong. Like CL. (HARM MUST BE PROPORTIONATE. McNaughton Rule i. not property damage. Restricts expert testimony. 3. Threat must be one of personal injury. Only a reasonable fear is sufficient to sustain a claim of duress. b. Did know the nature and quality of the action but didn't know what he was doing was wrong. not on imminence d. Only a threat of death or seriously bodily harm will sustain a claim of duress. D must have a rational as well as a factual understanding of the proceedings. he will not be permitted to claim duress ii. Calls for experts to make moral judgment calls. Also allows a threat of unlawful force. Reasonableness of Fear i. MPC disallows the duress claim if the D recklessly placed himself in the position where he could be duressed. focus on the effect of the threat on the Ds mental state. iii. But this limit has mostly been discarded f. ii. D cannot have been responsible for the threat. 2. Common law initially limited duress to cases where the D personally was threatened ii. Duress is a valid claim in all prosecutions. 2. iv. D must carry the burden of proof that he was under duress. ii. Burden of persuasion is on the D to show that they're incompetent to stand trial or that they're insane. To himself i. 4. Ex drowning a baby (thought he was washing clothes or if he didn't know that drowning a baby was wrong) iv. g. including homicide.ii. If D knowingly joins a violent gang and later commits a crime under threat of immediate death from the gang. b. under the CL the Ds act is almost surely less harmful than the harm with which he was threatened. In order to be competent the D has to show sufficient present ability to consult with his lawyer with a reasonable degree or rational understanding. Irresistible Impulse or Control Test . LESS HARMFUL) ii.
etc. You could be guilty of the offense but the defense would be a statute of limitations or something like that. A person is not responsible for criminal conduct if at the time of such conduct as a 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 the law. e. Allowed insanity defense if he believes that society WOULD approve of his conduct if it shared his understanding of the circumstances underlying his actions. ii. Policy: i. doesn't take into consideration a person who is brooding and unable to resist a sustained psychic compulsion c. Mental disease or defect is NOT an abnormality manifested only by repeated criminal or otherwise antisocial conduct. Has to appreciate instead of know (they might know it's wrong but they don't appreciate HOW wrong it is. Product or Durham Test i. 1. VERY broad not jxn uses this test because it's too broad d. Adds a volitional component iii. However. ii. Includes wrongfulness and criminality lets the jxn decide which they want to use 3. Accused person is not criminally responsible if their unlawful conduct was a product of a mental disease or defect ii. his actions do not offend societal morality. mere encouragement without agreement by anyone else is not socially dangerous because the resisting will of an independent moral agent stands between the solicitor and the commission of the intended crime. D can be relieved of criminal responsibility if he can show that society would approve of his conduct if they shared his same view of the circumstances (Wilson Case standard most jxn use) e. Underlying rationale want some type of finality in criminal justice system Inchoate Crimes 1. requests. Solicitation punishes anyone who deliberately encourages. There is no need for proximate cause here there is no need to determine its prospects for success. explosive fit. ii. etc analogy to a child) 2. If a D does not truly appreciate the wrongfulness of his conduct if a mental disease or defect causes him to both harbor a distorted perception of reality and to believe that. or hires someone else to commit a crime. Police can prevent the commission of a more serious crime by arresting the initiator as soon as he has acted with the necessary mens rea to commit a crime. iii. MPC i. (designed to facilitate complete expert testimony and allow the jury to consider all the information about the Ds mental illness) iii. Solicitation a. invites. commands. f. . under the circumstances as he honestly perceives them. even though he may also be aware that society on the basis of the criminal code.i. Critic too narrow. Irresistible impulse is considered in terms of complete destruction of the governing power of the minds assumes that the person is only going to be determined legally insane if it s the result of a sudden. that is' going to cause them pain. Differences: 1. b. Non Exculpability Public Policy i. Cognitive and volitional aspect more than just the Ds disposition. It's both cognitive volitional. does not condone his actions. Wrongful moral component 4.
iv. Gives police offers the legal authority to stop criminal activities before they are consummated. He must also satisfy the mens rea for the crime he is soliciting. 1. not just felonies or serious misdemeanors iii. iii. Utilitarian 1. Must desire to encourage all conduct and result elements of the crime solicited and must know or believe that all circumstance elements will be satisfied. 3. Policy i. by her actions. 2. ii. simply asking the person to is enough. iii.iv. Enables the justice system to punish individuals who have acted on their criminal intentions and are dangerous. If a person shoots but misses her victim. and act to impalement the intent. The actor must intentionally commit the acts that constitute the actus reus of an attempt (she must intentionally perform acts that bring her in proximity to commission of a substantive offense AND . Police can prevent crime by arresting an offender before he actually commits his target crime. v. b. i. But she may figure that if she fails in her attempt it will be because she executed the crime poorly. ordered. disturbs the order of things ordained by law. the D has committed solicitation because he has encouraged the gunman to become an accomplice. Helps preventative law enforcement. Retributive 1. c. Attempt punishes offenders who intend to commit a crime. couldn t be charged with solicitation because they didn t reach her. results. A person is guilty of solicitation if with the purpose of promoting or facilitating its commission. who attempts to commit a crime. he commands. Must be serious about it. Permits the arrest of people who have shown themselves to be dangerous because they have acted with the purpose to cause the commission of a crime. iv. though he attempted to mail the letters. ii. (Not thoughts alone because they have spoken words of their intent) v. Anyone who attempts to commit a crime is dangerous. Therefore. advised. must have specific intent as to the conduct. Under the CL the solicitor is an accessory before the fact. 2. a D must enticed. but soliciting someone to commit a violation is not punishable. MPC includes any encouragement that would generate responsibility of an accomplice. A person. EX: if a D encourages a gunman to sell him a weapon with which the D himself could kill a victim. but don t achieve their goal a. iv. MPC it is an offense to commit any crime. A person may assume that if she is successful in her conduct. she will avoid detection. under the same circumstance. Cotton: jail inmate wrote letters to his wife asking her to commit crimes. Dual Intent Crime: Must intend to do the act and to accomplish the result. roommate intercepted them. so punishment is necessary to restore the public order. and circumstances. CL only applied to the solicitation of another to act as a principle in the first degree. could be charged with attempted solicitation. Actus Rea: By words or conduct. Common Law: i. v. The person does not have to agree to commit the crime. ii. she s just as morally culpable as the person who hits her victim. Applies to any crimes. 2. Mens Rea requires purpose. or encouraged the person to commit the crime. but not solicitation d. incited. Some states limit solicitation to only major crimes. so she ll be deterred by the punishment imposed for attempt. MPC: i. Mens Rea: D must intend that the individual solicited commit a crime. or an attempt to commit such crime or would establish his complicity in its commission or attempted commission. CL: attempt punishes people who intend to commit a particular crime and take a significant step towards its commission. Seriousness of attempt is dependent on the seriousness of the attempted crime. encourages or requests another person to engage in specific conduct that would constitute such crime. so she will be willing to risk the penalty for the targeted crime.
who must determine when they can arrest a suspect 4. Try to figure out the point of no return. greatness of the harm. degree of apprehension felt. b. a. Actus Reus Tests 1. It must go so far that it would result. Pros: bright line 2. Indispensible Element Test a. 3. While an actor s conduct need not reach the last act. Pros: easier to apply than dangerous proximity c. says little about culpability and intentions 5. iii. A person is guilty of an attempt when her conduct is in dangerous proximity to success or when an act is so near to the result that the danger of success is very great. The actor must perform these acts with the specific intention of committing the target crime (this is a specific attempt offense even if the target offense is a general-intent crime. Intend the Circumstances: must intend the circumstances of the target offense (even if strict liability applies) ii. Attempt occurs when a person s conduct. Dangerous Proximity Test a. or apparently result in the actual commission of the crime it was designed to effect. He must intend the act. Mens Rea specific intent crime. if not extrinsically hindered or frustrated by extraneous circumstances. the armed suspects were not dangerously close to success. Cons: provides little guidance to police offences on the street. ii. in that it must approach sufficiently near to it to stand either as the first or someone subsequent step in a direct movement towards the commission of the offense after the preparations are made. 6. b. unambiguously manifests her criminal intent. An attempt does not arise unless an actor has it within her power to complete the crime almost immediately. Some courts used to state that a criminal attempt only occurred when the person performed all of the acts that she believed were necessary to commit the target offenses i. Intend the Result: he must intend the result of the crime (cannot be convicted of attempted murder if you hurt someone recklessly) 5. Person is guilty of attempt when in the ordinary course of event. b. it must be proximate to the completed crime. the actor reached a point where it was unlikely that he would have voluntarily desisted from his effort to commit a crime. 3. Intend the Act: cannot commit an attempt recklessly or negligently. (usually very demanding standard because it does not require successful completion of the crime) 4. standing alone. Unequivocality test a. Problem: attempt can occur at least by the time of the act. An act does not constitute an attempt until it ceases to be equivocal. No clear point. but no jxn require that it reach this stage on all occasions. Physical Proximity Test a. Holmes nearness of the danger. Police would be stymied by this rule. Probable Desistence a. Last Act Test a.2. must have the intent to commit the target crime. Res Ipsa test b. b. i. Rizzo because the victim was absent. Pros: flexible c. ii. A person is guilty of attempt when they ve gotten rid of all indispensable aspects of the criminal endeavor over which the actor has not yet acquired control. Cons: arbitrary. Clarifications .
Factual Impossibility is not a defense when a person s intended end constitutes a crime. ii. You cannot attempt to commit involuntary manslaughter because you can t attempt to commit an involuntary crime. For you re punishing someone who wanted to commit a crime and thought they were committing a crime. c. But if a D completely and voluntarily renounces her criminal purpose. even if it wasn t her conscious objective to cause it b.1. Conduct Crimes crimes who actus reus are defined in terms of conduct rather than injurious results a. b. Ex. Belief does not necessarily encompass the attendant circumstances d. you can have attempted reckless endangerment if you re caught before you do it. So long as she has the intent to commit reckless endangerment when he drives blindfolded as a joke. 2. He is mistaken about the legal status of the ds conduct (but it s almost exactly like c. it s not solicitation.reckless endangerment. but commission of the offense is impossible due to a factual mistake regarding the legal status of some attendant circumstance that constitutes an element of the charged offense. MPC i. Abandonment 1. b. 1. because the actions made were not sufficient. . Hybrid Legal Impossibility if the actor s goal is illegal. Mens Rea it must have been her purpose (conscious objective) to engage in the conduct or to cause the result that would constitute the offense. 2. ii. Ex pickpocket putting her hand in the victim s empty pocket. etc. Factual Impossibility MPC assesses the Ds responsibility based on what he thought the facts were. Result Crimes offense defined in terms of a prohibited result. Must have the purpose to commit the target offenses AND to conduct constituting a substantial step toward the commission of the target offense: 1. All but two states don t allow attempted felony-murder because it requires a specific intent to kill and the Ds intent to commit a felony does not substitute or the intent to kill. 3. See List. lawmakers are not sympathetic. but for some circumstances they didn t know about ii. Most scholars believe that abandonment was not a common law defense to attempt and may courts refuse to recognize the difference. Against you re basically punishing for thoughts. a. Policy most states have abolished this defense (so that lawyers and courts don t have to distinguish between factual impossibility and hybrid legal impossibility) i. MPC a. Exceptions a. Impossibility 1. Person is guilty of an attempt to cause a criminal result if she believes that the result will occur. Would not convict the D only in cases of true legal impossibility (where there is no law prohibiting the conduct). 4. Legal Impossibility is a defense if a person encourages someone to do something that is not a crime. b. a. 3. Defenses i. Ex if D receives un-stolen property he thinks is stolen. 4. Because the D was mistaken regarding some fact relating to the crime and if the factors had been as he wanted them to be he would have committed a crime. Purpose. A person is not guilty of an attempt of a result crime unless her actions in furtherance of the prohibited result are committed with the specific purpose of causing the unlawful result 2. can she use it as a defense. but she fails to consummate the offense because of an attendant circumstance unknown to her or beyond her control. even if the person erroneously believes it s a crime.
Helps police intervention ii. One of the parties must make an overt act toward the furtherance of the crime. Pinkerton because the primary party violated the IRS Code. b. 2. no matter how trivial is sufficient. iv. Its voluntary when she has a genuine change of heart. b. an accomplice is also a conspirator with the primary party in the commission of the crime. ii. ii. Any act. 4. Conspiracy an agreement between two or more person to participate in the crime is the key to conspiracy. he was an accomplice. while the secondary party was in jail. Conspiracy a. Solicitation is defined solely by the actor s intent and conduct. Agree with such other person that they will engage in conduct that constitutes such crime OR . It falls within the scope of the conspiracy OR 2. not a conspirator. Pinkerton Doctrine: a party to a conspiracy is responsible for any criminal act committed b y an associate of it IF: 1. he couldn t assist. i. Fills in the gaps in the unrealistic law of criminal attempts iii. or some other circumstance that increases the abandonment is not complete if the actor merely postpones the criminal endeavor until a better opportunity presents itself. the two have entered into a conspiracy. Person is guilty of conspiracy with another person or persons to commit a crime if with the propose of promoting or facilitation its commission. Cook: brothers raped girl who fell on the ground. Does not need to be an express agreement 2. They ll overlap completely iii. 1.a. Not all jxn have adopted this rule. Relationship between Solicitation and Conspiracy a. Response of the person solicited is irrelevant to the crime. A person cannot be convicted of both conspiracy and solicitation or both conspiracy and attempt. he: 1. Many statutes diverge from the CL and require that there be an overt act. It s enough that each person agrees to commit or facilitate some of the acts leading to the crim. or to accomplish a legal act by unlawful means. Special Dangers or Group Criminality two people united to commit a crime are more dangerous than one on his own. Policy i. 1. so his liability was decided solely on conspiracy because he had agreed to commit the crime before he was sent to jail. Extensive application of the rule (ex a huge prostitution ring) would make relatively minor parties liable for the larger charges because of a criminal agreement. CL i. that s enough for all of them. Actual assistance in the crime is not necessary. But if there s an act by anyone in the party. Writing a letter or making a phone call is enough. 1. It s a reasonably foreseeable crime committed by a coconspirator 3. In most circumstances. A conspiracy may exist even if a conspirator does not agree to commit or facilitate each and every part of the substantive offence. because they didn t have time to form an agreement. Agreement between two or more persons to commit a criminal act or serious of criminal acts. Pinkerton Doctrine: i. MPC i. absence of an instrumentality essential to the completion of the crime. If the person solicited responds to the solicitation and agrees to commit the act. c. d. if it s performed in pursuance of the conspiracy. Just requires proof that an actor at least indirectly participated in the crime. 3. 3. an agreement to do so is not needed. It is not voluntary when the actor is motivated by unexpected resistance. 3. b.
c. a. or (3) he has a legal duty to prevent the commission of the offense. but he was not present at the time of the crime. Principle in the Second Degree accessory at the fact a. counsels. Accomplice Liability: a person is legally accountable for the conduct of another person if he is an accomplice of the other in the commission of the crime. The secondary party is an accomplice of the primary party in the commission of an offenses if he intentionally assists the primary party to engage in the conduct that constitutes the crime (that he intends to assists and does in fact. iv. Primary Party person who personally commits the physical acts that constitute an offense. Secondary Party .2. A person can be convicted if he personally commits the crime of if his relationship to the person who commits it is one for which he is legally accountable. ii. exists if S s conduct would constitute criminal solicitation 3. Ex lookout/driver of get-away car. AL by Aiding: (gets rid of all the CL definitions) . ii. Nature of an Accomplice: 1. 1. (He s the one who actually commits the offense!) 2. Agrees to aid such other person in the planning of commission of such crime or of an attempt or solicitation to commit such crime ii.hides the gun. iii. but make s not effort to do so. but no overt act requirement for first and second degree felonies. iii. Must be an overt act for felonies in the third degree. He s the person who solicits. Common Law i. or commands the principle in the first degree to commit the offense. He must intent to agree AND intent to commit the offense Absence of either intent renders the Ds conduct nonconspirital. or attempts to aid P in the planning or commission of the offense. a. agrees to aid. (2) if he aids. 2. Ex get a gun 4.person who assists in the commission of the offenses. MPC i. Accomplice Liability by Solicitation: no definition. assist) b. they can t have conspiracy to commit the unintended act. iv. 3. Physically commits the acts that constitute the offense OR b. with knowledge of another s guilt. The commission of his offense happens after the acts constituting the crime have ceased. Principle in the First Degree person who with the requisite mens rea: a. believed there was no better way to confine within reasonable limits the scope of liability to which conspiracy may theoretically give rise. 1. 1. I s one who. can avoid accountability for the subsequent criminal acts of the party 1. or both. But a person cannot knowingly intend to commit an unintentional crime so if it they act the commit is not the act they intended to achieve. 5. or conviction. trial. Abandonment a person who provides assistance to another for the purpose of promoting or facilitating the offense. (1) If he solicits P to commit the offense. Accessory Before the Fact does not differ much from Principle in Second Degree. Limits to accomplice liability i. but who subsequently abandons the criminal endeavor. Ex . Commits the offenses by the use of an innocent instrumentality or innocent human being c. A person is guilty of an offense if he commits it: by his own conduct or by the conduct of another person for which he is legally accountable. Must communicate his withdrawal to the principal and make bona fide efforts to neutralize the effect of his prior assistance. MPC rejects the Pinkerton Doctrine. Complicity/Accomplice Liability a. Accessory After the Fact an accessory after the fact. intentionally assists the felon to avoid arrest.
v. But agreeing to aid is not the same as conspiring to commit an offense. even if his aid proves ineffectual.4. AL by Agreeing to Aid: S is an accomplice of P if he agrees to aid P in the planning or commission of an offense. . Mens Rea purposely. AL by Attempting to Aid: S may be held accountable as an accomplice of P in the commission of an offense if he attempts to aid in the planning or commission of the crime. 5. not knowingly.
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