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Criminal Law Expanded Outline
Principles of Punishment Legality
Requirement of Previously Deﬁned Conduct
Commonwealth v. Mochan Keeler v. Superior Court
Values of Statutory Clarity
In re Banks City of Chicago v. Morales
The physical or external portion of the crime
includes 1. voluntary act 2. that causes 3. the social harm
1. Act bodily movement, physical (though not necessarily visible) and external
1. sometimes there can be bodily movement, but no act
if A grabs B's arm and swings it, B has not acted
2. act does not apply to the results of someone's movement
the result is the social harm
3. some courts say must be voluntarily performed, MPC say it can be involuntarily or voluntarily performed
2. Voluntary 1. Broad meaning (as used in defenses)
defendant possessed or lacked the sufﬁcient free will to be blamed for her conduct.
a person who acts under duress or as the result of a mental disorder is not acting voluntarily
2. Narrow Meaning in the Context of Actus Reus
movement of the body that follows our volition willed contraction of muscle
Voluntary acts involve use of mind, involuntary acts are caused by brain
distinguishes "I raised my arm" from "My arm went up" habitual acts (chain-smoking, driving) as voluntary
Questions of Voluntariness
Hypnotism Multiple Personality Disorder
It is possible for more than one mind to inhabit one brain? "We will not begin to parcel out criminal accountability out among the various inhabitants of the mind"
Element of Crime
Courts frequently describe involuntariness as a defense, however, a voluntary act is an element of the crime, so if you cannot prove beyond a reasonable doubt that the D's act was voluntary, you have not met your burden of proof
The prosecution does not need to show that EVERY act or even the D's LAST act was voluntary in order to establish criminal liability. Sufﬁcient that the D's conduct included a voluntary act Courts can choose between narrow and broad time-frames in identifying the conduct that must include a voluntary act. often based on a court's desired outcome can be constructed narrowly or broadly, so court's will just construct based on however they can include a voluntary act in D's conduct This can be avoided if courts apply fully stated rule of criminal responsibility A person is not guilty of an offense unless her conduct, which must include a voluntary act, and which must be accompanies by a culpable state of mind (the mens rea of the offense) is the actual and proximate cause of the social harm, as proscribed by the offense.
Thus, court must focus on the RELEVANT conduct, i.e. the conduct performed with the requisite mens rea that actually and proximately caused the social harm charged. Example:
People v. Decina D was an epileptic who killed four children when the car he was driving went out of control during a seizure. The prosecutor alleged that D knew he was highly susceptible to seizures and failed to take proper precautions. As a result, D was prosecuted for "criminal negligence in the operation of a vehicle resulting in death" A broad time-frame would include voluntary acts of entering the car, turning the ignition key, and driving. Since D was charged with operation of a vehicle resulting in death, it was perfectly appropriate to include in focus the voluntary acts immediately preceding the epileptic seizure.
Supposed Exceptions to the Requirement
1. Poorly Drafted Statutes Some statutes may appear to dispense with the requirement of voluntary act, however, though courts could conceivably apply the statute literally, it would be hoped that they would interpret the law to include a voluntary act 2. Status Offenses Likely any statute that punishes a person for a mere propensity to act will run afoul of constitutional principles (vagrant, addict, etc) Robinson v. California
SCOTUS ruled it was violation of 8th amendment (cruel unusual punishment) to incarcerate someone for being addicted to use of narcotics
saw drug use as an illness, cannot punish for illness
Powell v. Texas
SCOTUS ruled it was constitutional to punish someone for being drunk in public, as the conduct was not that he was chronic alcoholic but that he chose to be in public and drunk
A state may not constitutionally punish a person for her thoughts alone, or for her mere propensity to commit crimes: The special rule of omissions aside, SOME conduct by the D is constitutionally required. 3. Crimes of Possession Virtually all states prohibit possession of contraband (drugs) or criminal instrumentalities (burglars' tools). These do not seem to require a voluntary act, only that D passively possess prohibited objects.
These are inchoate offenses, real purpose is to provide the police with a basis for arresting those whom they suspect will later commit a socially injurious act (sell narcotics, or use tools to commit a burglary)
These do not necessarily dispense with voluntary act because courts typically require proof that the D knowingly procured or received the property (voluntary act) or that she failed to dispossess herself of the object after she became aware of its presence.
but D is not guilty if contraband was planted on her and she did not have sufﬁcient time to terminate her possession after she learned of presence
Model Penal Code Voluntary Act
General Principles 1. No person may be convicted of a crime in the absence of conduct that "includes a voluntary act or the omission to perform an act of which he is physically capable."
Act: bodily movement whether voluntary or involuntary
Involuntary movements are: reﬂexes, convulsions, conduct during unconsciousness, sleep, or due to hypnosis, any conduct that "is not a product of the effort or determination of the actor, either conscious or habitual"
Possession is an act if the possessor either knowingly obtained the object possessed or knew she was in control of it for a sufﬁceint period to have been able to terminate possession.
Exception Voluntary act rules applies to crimes - felonies, misdemeanors, and petty misdemeanors. Does not apply to violations unless a court determines that application of 2.01 is consistent with effective enforcement of the law deﬁning the offense
A violation is an offense for which the maximum penalty is a ﬁne or civil penalty. Examples
Driver who suffers an unforeseeable blackout and does not halt at stop sign may be convicted of a motor vehicle violation in the absence of any proof of a voluntary act
Subject to a few limited exceptions, a person has no criminal law duty to act to prevent harm to another, even if the person imperiled may lose her life in the absence of assistance. This distinguishes between an act that afﬁrmatively causes harm and a failure by a bystander to take measure to prevent harm.
"We are not our brother's keepers" People v. Beardsley
Married man failed to come to the aid of the woman with whom he was having an affair after she took a lethal dose of poison in his presence. She died.
Exceptions to No-Duty Rule "Commission by omission" liability
A defendant's commission of a common law duty to act assuming that she was physically capable of performing the act, serves as a legal substitute for a voluntary act.
mens rea must still be proven
When There Is a Duty to Act
1. Status Relationships
usually founded on the dependence of one party on the other or on their interdependence Parent-minor child married couples master-servant
2. Contractual Obligation
implied or express contract 1. one who breaches an agreement to house, feed, and provide medical care to an inﬁrm stranger or to care for one's mentally and physically disabled parent, may be held criminally liable for ensuring death 2. Babysitter to ward 3. doctor to patient
3. Omissions Following an Act
An act followed by an omission will result in criminal responsibility for the omission even when there is no liability for the original act. 1. Creation of a risk A person who wrongfully harms another or another's property, or who wrongfully places a person or her property in jeopardy of harm, has a common law duty to aid the injured or endangered party. A few courts have also held that one who ACCIDENTALLY starts a house-ﬁre and who therefore would be free of liability for the initial blaze, may be convicted of arson if (with the requisite wrongful state of mind) fails to act to extinguish the ﬁre to prevent property damage. Split in courts regarding one who justiﬁably wounds an attacker in self-defense then has a duty to obtain medical care for the wounded actor
4. Voluntary Assistance
One who voluntarily commences assistance to another in jeopardy has a duty to continue to provide aid, at least if a subsequent omission would put the victim in a worse position than if the actor had no initiated help. Rule applies even if the omitter had no initial responsibility to rescue the victim.
5. Statutory Duty (Bad Samaritan Laws)
Duty to act may be statutorily imposed Examples
their patient. each drop of ﬂuid introduced into patient's body by intravenous feeding tubes was comparable to a manually administered injection or item of medication. if the duty to act is otherwise imposed by law incorporates duties arising under civil law such as tort or contract law Medical Omissions Act or Omission? When analyzing doctor/nurse actions. respirator . Model Penal Code Omissions Does not differ signiﬁcantly from common law A person is not guilty of any offense unless his conduct includes a voluntary act or the omission to perform an act of which he is physically capable. Bad Samaritan Laws Statutes make it an offense. must determine whether action constitutes an act or an omission . driver of car involved in accident must stop car at scene 3. or did the dr. Herbert had been in deep coma from which he was unlikely to recover. if such aid can be rendered without danger or peril to the bystander unless that assistance or care is being provided by others. Vermont statute provides that it is an offense for a bystander to fail to give reasonable assistance to another perosn whome she knows is exposed to grave physical harm. Although the life-support devices were self-propelled.failure to turn on. disconnection of mechanical devices was tantamount to withholding medical treatement. Superior Court Ds were physicians charged with murder and conspiracy to commit murder of Herbert. Court stated that doctors conduct amounted to a withdrawal or omission of further treatment rather than an afﬁrmative act. turn it off? did voluntary act of turning off respirator lead to omission of future medical care? Barber Approach Barber v. Thus. usually a misdemeanor.1.ex. Court framed the resulting omission in terms of what duties are owed by a physician to a patient who has been reliably diagnosed as in comatose state from which any meaningful recovery of cognitive brain function is exceedingly unlikely. extraordinary care question whether the proposed treatment was proportionate in terms of the beneﬁts to be gained versus the burdens caused even minimal medical treatment is disproportionate when patient has no chance of medical improvement. thus no duty to act . Herbert dies from loss of ﬂuids and nourishment. for a person not to come to the aid of a stranger in peril under speciﬁed circumstances. they removed feeding tubes. parents provide food and shelter to their minor children 4. ordinary v. Received permission from family to turn off life-sustaining equipment and when Herbert continued to live. Liability for omission permitted in 2 cases: 1. if the law deﬁning the offense provides for it 2. pay taxes on earned income 2.
explosive. in order to justify this we must deﬁne harm carefully and broadly. Example Burglary is the breaking and entering of the dwelling house of another at nighttime. restriction of public activities. found in the deﬁnition of the crime The social harm then has not occurred unless the speciﬁed attendant circumstances are present. many crimes are punished even though no actual harm has been committed. Utter Social Harm To be guilty of an offense. Immediate family becomes surrogate in the event that patient cannot communicate wishes/desires. even if no speciﬁc harmful result occurred Example . poison. Attendant Circumstances In order for any offense to occur. strangers become fearful. a person must be guilty of wrongdoing. etc. Martin v. Mens rea: with malice aforethought actus reus: the killing of a human being by another human being social harm: taking of human life. Conduct Elements harmful conduct.driving under the inﬂuence of alcohol 2.even minimal medical treatment is disproportionate when patient has no chance of medical improvement. group. or state interest which was deemed socially valuable." . or destruction of an individual. However. certain facts or conditions must be present when the actor performs the prohibited conduct and/or causes the prohibited result that constitutes the social harm of the offense. tear in the fabric of society Dividing Social Harm into Sub-Elements 1. deep psychological injury to family and loved ones.it is that the crime occurs Some crimes include conduct and result elements "killing of another human being by means of a destructive device. Deﬁnition The negation. or torture. thus no duty to act Who determines proportionality? Patient's interests and desires are the key ingredients of the decision-making process. The voluntary act is the doing and the harm caused by the voluntary act is the wrong. HOW the crime occurs is not primarily important . ﬁnancial losses suffered by family. State State v. Finding Social Harm Element in Criminal Statute Example: Murder is the killing of human being by another human being with malice aforethought. Actus reus result: killing Actus reus conduct: by means of a destructive device. 3. Result Elements offense deﬁned in terms of prohibited result in these offenses. endangering.
but lack the requisite elemental mens rea Frequently Used Mens Rea Terms Intentionally a person intentionally causes social harm of an offense if: 1. or subjective fault 2. Since C caused the harm while attempting to steal money from the meter. Culpability "general immorality of motive. and the events must occur at NIGHT. vicious will. it is his desire (conscious object) to cause the social harm.for D to be guilty of burglary. as a member of the sect. look for another crime to charge Mens Rea Two meanings (both persistent in courts today): 1. purposefully. C caused to be administered to V a noxious thing that endangered V's life. Therefore. D genuinely believes his fervent prayers would save everyone on their airplane he bombs except his wife. seeped through the cell wall and nearly asphyxiated V. or immorality Regina v. Cunningham C entered the cellar of a building where he tore the gas meter from the pipes and stole the coins deposited in the meter. sufﬁcient that D committed the acts in a manner than demonstrated bad character. gas escaped from pipes. As a consequence. as as thereby to endanger the life of such person shall be guilty of a felony" C committed actus reus of the offense: As a result of his voluntary conduct. for whom his did not pray for divine protection. the jury found the required wickedness. malevolence. Although C had not intended to endanger anyone's life by his actions. Based on these facts. of another. night each must be proven to prove the crime of burglary if they are not proven. or an evil-meaning mind" general notion of moral blameworthiness Thus. Elemental (gaining prominence) The particular mental state provided for in the deﬁnition of an offense (MPC) this means person may possess the culpability sense of the term. Court invited the jury to convict C if it found that he had caused the social harm with a morally culpable state of mind. the breaking and entering must be of a "dwelling house" (not a commercial building or a chicken coop). guilty for an offense is not dependent on proof that the actor caused the proscribed harm with any speciﬁc mental state (not necessary to show whether the offense was committed intentionally. Attendant circumstances are: dwelling house. Issue was whether C had requisite mens rea. 2. D intentionally killed his wife because he . etc). he was charged with an offense that provided "whosoever shall maliciously cause to be administered to or taken by any other person any poison or noxious thing. the dwelling house must belong to someone other than D. he acts with knowledge that the social harm is substantially certain to occur This is also a subjective state of mind Consider: Suppose D belonged to religious sect that espoused the belief that members of the faith always had their wishes fulﬁlled by God.
thus. and instead hits and breaks a building window. Based on these facts.he was not subjectively aware that their deaths were near certainty. existence of justiﬁable motive does not render conduct less intentional. accidentally kills or injures another person instead. Appellate court ruled that statutory offense which require D's criminal intent be directed toward the actual victim" Cannot be transferred from one social harm to another Example: If D intends to kill a dog by shooting it. if D intentionally takes and carries away the property of another in order to "joyride" and returns the vehicle later. but. Common law larceny is the trespassory taking and carrying away of the personal property of another with the intent to steal. if the jury believes his testimony about his religious beliefs. D cannot be convicted of intent-to-kill murder If A intends to throw a rock at V to injure him.we attribute liability to a D who.e. intending to kill or injure one person.one type of social harm . religion. as a reasonable person. no larceny has occurred 2. or sexual orientation. Claims of defense If D's motive for intentional actions is legally justiﬁable (kills to protect own life). . Intent requires such awareness. Hew as charged according to an assault statute that made it an offense to "assault of beat any person. A's intent to batter . the intent to permanently deprive the other of the property italicized language denotes the actor's motive for committing the actus reus THUS. it is insufﬁcient that he SHOULD HAVE BEEN AWARE. The law "transfers" the actor's state of mind regarding the intended victim to the unintended one "In bad aim cases. Some offenses by deﬁnition require proof of a speciﬁc motive Ex. Sentencing State may impose enhanced punishment if actor selected his victim based on race. but affects his ultimate criminal liability 3. he did not intentionally kill the other passengers . disability. D intentionally killed his wife because he desired her death. he will be acquitted. State may reduce sentencing if good motive for wrongful conduct can be considered mitigating. and accidentally kills a human. Motive Relevance 1. Transferred Intent Legal ﬁction . disﬁgure. with the intention of disabling the driver. the social harm of the offense charged. the intent follows the bullet" Justiﬁcation based on necessity (D should not avoid liability because of bad aim) and proportionality (D should not be punished differently since culpability remains the same) Cannot be used if the substantive offense requires D's criminal intent be directed towards actual victim Example: F thew rocks at moving vehicle.should not be used to prove that A intended to cause property damage. with intent to maim. they they would be killed. for whom his did not pray for divine protection. or disable such person" Trial Judge instructed jury that intent could be transferred to injured passenger. i.his fervent prayers would save everyone on their airplane he bombs except his wife.
and instead hits and breaks a building window. the constitutional privilege did not apply in his circumstance.see Understanding Criminal Law pg 128 Concerns exist that juries will convict for carelessness as to information instead of willfulness Also. sometimes knowledge of a material fact .when he crosses the border. an unintended victim.If A intends to throw a rock at V to injure him. A intends to cause a speciﬁc harm to one . A's intent to batter . he "knows" of the pot's existence if he smells it and as a consequence. but recklessness is not equivalent to actual knowledge Willfully Sometimes used as a synonym for "intentional" Sometimes means "an act done with a bad purpose" or with "an evil motive" Sometimes connotes "an intentional violation of a known legal duty" or a "purpose to disobey the law" The difference matters in some cases: Example D asserted what he believed to be his constitutional privilege not to incriminate himself by refusing to answer questions propounded to him by a government agency. B 2.the attendant circumstance . or 2. C. in order to provide himself with a plausible deniability in case of a criminal prosecution) Ostrich instruction will be given to jury . D "know" of the presence of the pot if he concealed it in the vehicle himself or personally observed its presence (actual knowledge). suffers that harm meant for B Hard Case: See Understanding Criminal Law pg 127 Knowingly A person who knowingly causes a particular result or knowingly engages in speciﬁed conduct is commonly said to have intended the harmful result or conduct.one type of social harm . willful blindness means you are reckless in continuing to act on the basis of a known suspicion . is not guilty unless he "knows" of the presence of the contraband . D. believes that it is present (correct belief form of knowledge) Person has knowledge of a material fact if he: 1. B escapes unscatched. the social harm of the offense charged.is a required element of an offense Example: Federal Crime to knowingly import any controlled substance into the country. Paradigm Case 1. Under this statute. or alternatively.speciﬁc individual. He was thus charged with willfully refusing to answer the . deliberately fails to investigate in order to avoid conﬁrmation of the fact (i. and 3. correctly believes the fact exists Willful Blindness or Deliberate Ignorance most jurisdictions will permit ﬁnding of knowledge if the person is guilty of willful blindness Exists if actor: 1.just one . is aware of a high probability of the existence of the fact in question 2.e. HOWEVER. As it turned out. Is aware of the fact (actual knowledge).should not be used to prove that A intended to cause property damage.an attendant circumstance . who drives a car containing pot into US.
Conduct constitutes such a deviation if the actor takes an unjustiﬁable risk of causing harm to another. probability of such harm occurring 3. the prosecution must ordinarily show more than mere deviation from the standard of care that would constitute civil negligence "Criminal Negligence" is conduct that represents a gross deviation from the standard of reasonable care. risk-taking that justiﬁes civil liability (civil negligence) 3. Negligence thus causes OBJECTIVE fault actor is not punished for wrongful state of mind but rather his failure to live up to the "reasonable person" 3 Factor Determination 1. the constitutional privilege did not apply in his circumstance. He was thus charged with willfully refusing to answer the questions If willful means intentional.or loss . reckless conduct (recklessness) Negligence A person's conduct is negligent if it constitutes a deviation from the standard of care that a reasonable person would have observed in the actor's situation. or at least neutral risk-taking 2. the more substantial the actor's reason for taking the risk must be to avoid a ﬁnding of negligence. and did not act with the purpose of disobeying the law. level of negligence is so great that it would be shocking to allow the actor's lack of awareness to excuse his actions in the circumstances . IMPORTANT: When the latter meaning of "willful" is applies. D's conviction was overturned however.D asserted what he believed to be his constitutional privilege not to incriminate himself by refusing to answer questions propounded to him by a government agency. D was guilty because he intentionally refused to answer questions. Negligence v. However. desirable. the burden . because he lacked an evil motive for the violation.to the D of desisting from the risky conduct (another way for evaluating the reasonableness of taking the risk) As the gravity and/or probability of harm increases. gravity of the harm that would foreseeably result from D's conduct 2. Person is criminally negligent if he takes a SUBSTANTIAL and unjustiﬁable risk of causing the social harm that constitutes offense charged. As it turned out. criminally negligent risk-taking (criminal negligence) 4. Distinguishing Civil from Criminal Negligence A person who breaches his duty of care to another has acted negligently. the presence of this term in the deﬁnition of an offense results in an exception to the usual rule that a mistake of law is not a basis for exculpation of an actor. Recklessness Risk-taking falls into 4 categories: 1. not every breach constitutes a crime. Civil negligence is ordinarily considered an inappropriate predicate to criminal liability To establish CRIMINAL responsibility for negligence.
the court will seek to import the statute in the manner that best gives effect to the legislative intent for legislative intent. but precedes others. court will say mens rea term applies forwards. but not backwards . Person acts recklessly if he takes a VERY substantial and unjustiﬁable risk. and it is set out at the beginning of the statute. a D's unusual mental characteristics are not. Malice A person acts with malice if if he intentionally or recklessly causes the social harm prohibited by the offense. it will color your opinion Recklessness 1.e blindness). 2. spite. if relevant to the case. (Most jurisdictions apply this def) Requires proof that the actor disregarded a substantial and unjustiﬁable risk of which he was aware. wickedness" criminal negligence falls outside the realm of malice What Elements Does Mens Rea Term Modify? If a statute is not clear on its face. are incorporated into the reasonable person standard. but by the actor's state of mind. recklessness and negligence are distinguished not by deviation from the standard of care.level of negligence is so great that it would be shocking to allow the actor's lack of awareness to excuse his actions in the circumstances "Subjective" Reasonable Person? Pressure to attribute subjective characteristics to the objective reasonable person incorporate D's low education or mental acuity. a court amy interpret this to mean that the word modiﬁes EVERY actus reus element that follows it if the culpability term FOLLOWS various actus reus elements. Thus. D's life experiences mentally retarded man that negligently causes death of his child incorporate religious beliefs Father fails to obtain medical care for child because Christian Scientist incorporate life experiences prior mugging victim may seek to have his self-defensive actions measured against standard of reasonable prior mugging victim Traditional Rule Although a D's unusual physical characteristics (i. judges consider: legislative history of an act and circumstances surrounding its adoption earlier statutes on the subject common law as it was understood at the time of the enactment of the statute previous interpretation of the same or similar statutes structure of the statute If there is only one statutory mens rea term. Rule is undergoing signiﬁcant change and based on whether you subscribe to utilitarian or retributivist values. "ill-will.
A risk is substantial and unjustiﬁable if considering the nature and purpose of the actor's conduct and the circumstances known to him. unless he actually believes that it does not exist 3. An offense is general intent in nature if the actor can be convicted upon proof of any lesser state of mind. . provides that the actor must be aware of a statutory attendant circumstance. its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation 4. or negligently.Speciﬁc Intent v. such as when he causes the harm knowingly. its disregard involves a gross deviation from the standard of conduct that a reasonable would observe in the actor's situation. recklessly a person acts recklessly if he consciously disregards a substantial and unjustiﬁable risk that the material element exists or will result from his conduct. knowingly result context: a result is knowingly caused if the actor is aware that it is practically certain that his conduct will cause such a result conduct or attendant circumstances: one acts knowingly if he is aware that his conduct is of that nature or that such attendant circumstances exist. 2. General Intent General intent: any offense for which the only mens rea required was a blameworthy state of mind Speciﬁc intent: deﬁnition of the offense expressly required proof of a particular mental state Some courts distinguish this way: An offense is speciﬁc intent if the crime requires proof that the actor's conscious object. willful blindness is not a MPC defense Knowledge is establish if a person is aware of a high probability of the attendant circumstance's existence. includes an intent or purpose to do some future act or to achieve some further consequence beyond the conduct or result that constitutes the actus reus of the offense. is to cause the social harm set out in the deﬁnition of the offense. recklessly. And offense that does not contain one of these features is termed "general intent" Model Penal Code Mens Rea 4 speciﬁc levels of culpability 1. Other courts distinguish this way: Speciﬁc intent offense is one in which the deﬁnition of the crime expressly: 1. negligently a person's conduct is negligent if the actor should be aware of a substantial and unjustiﬁable risk that the material element exists or will result from his conduct. or 2. or purpose. purposely result or conduct context: a person acts purposely if it his conscious object to engage in conduct of that nature or to cause such a result attendant circumstances context: a person acts purposely with respect to attendant circumstances if he is aware of the existence of such circumstances or he believes or hopes that they exist. A risk is substantial and unjustiﬁable if considering the nature and purpose of the actor's conduct and the circumstances known to him.
no distinction between general and speciﬁc intent crimes now 3.e. just suffered heart attack. even though the crime. do not contain a mens rea requirement regarding one or more elements of the actus reus. a criminal may be punished for violating it. physical characteristics may be taken into account (blindness. Crimes that. Presumption Against Strict Liability . the phrase "material element of the offense" includes "elements" relating to the existence of a justiﬁcation or excuse for the actor's conduct. defenses to crimes.conduct and the circumstances known to him. Section 2. knowingly. or negligently. or who misunderstands the meaning of.with a culpable state of mind. by deﬁnition. with respect to EACH material element of the offense. etc) but. Noteworthiness 1. requires proof of a mens rea The rule that a person who is ignorant of. Principles of Statutory Interpretation 1. Except for violations. knowingly. a person may not be convicted of an offense unless he acted purposely. without distinguishing among the material elements thereof. recklessly. hereditary factors and matters of intelligence and temperament are immaterial.each material ingredient of the offense . a court will interpret such culpability provisions as applying to EVERy material element of an offense unless a contrary purpose plainly appears. as the law may require. When the deﬁnition of a criminal offense is silent regarding the matter of culpability as to a material element of the offense. may require different levels of culpability for each material element. requires the prosecution to prove that D committed the actus reus of the offense . only 4 different kinds of mens rea to worry about 4. this Section is also relevant in determining whether a person is entitled to acquittal on the grounds of an afﬁrmative defense Strict Liability General Deﬁnition rule of criminal responsibility that authorizes the conviction of a morally innocent person for a violation of an offense. absent a plainly contrary purpose of the legislature 2. person may not be convicted simply for having a morally culpable state of mind 2. even if her ignorance or mistake of law was reasonable. Nature of the reasonable person Conduct is evaluate from the perspective of the person in the actor's situation. Single mens rea term modiﬁes each actus reus element of the offense.02 states that one of the four culpability terms applies to EVERy material element of a crime.02(3) provides an interpretive solution: Material element is established if the person acts purposely. by deﬁnition. its disregard involves a gross deviation from the standard of conduct that a reasonable would observe in the actor's situation. or recklessly. If a statute deﬁning an offense prescribes that kind of culpability that is sufﬁcient for the commission of the offense. Since Section 2. i.
Congress and state legislatures enacted laws. standard imposed by the statute is "reasonable and adherence therefor is properly expected of a person 4.offenses that do not contain a mens rea element are generally disfavored presumption exists that mens rea is required in federal statutes Factors that may overcome presumption against strict liability 1. penalty for violation of the statute is small 5. absence of mens rea requirement may have the desirable effect of keeping poeple who doubt their capacity to act safety from participating in dangerous activities 2. nonpublic typically involve conduct malum in se. or welfare of a signiﬁcant portion of the public. could gravely affect the health. but the attendant circumstance (age) requires no intent Distinctions between Public and NonPublic 1. although not morally wrongful. which contained no express mens rea requirement. nonpublic often result in severe punishment 2. Policy Debate Justiﬁcation Retributivists disfavor Utilitarian/law enforcements support Utilitarian Argument 1. public welfare crimes usually carry only minor penalties. safety. thus violators are often stigmatized despite absence of proven moral fault. conviction does not gravely besmirch HOWEVER courts are unpredictable . statutory crime is not derived from the common law 2. and they came to be characterized as "Public Welfare Offenses" Malum Prohibitum (wrong because it is prohibited) Examples prohibition of impure food or drugs anti-pollution environmental laws motor-vehicle regulations Non-Public-Welfare Offenses Statutory Rape most common offense of this type statute does not require any mens rea element regarding the D's knowledge of the female's underage status.one cannot expect a court to apply the factors consistently or systematically Public-Welfare Offenses Legislatures found it necessary with the advent of the Industrial Revolution to deal with new problem: conduct by a single actor that. those who do choose to engage in the risky activity will act with greater caution in light of the strict liability nature of the law . the act of sexual intercourse is intentional. evident legislative policy that wold be undermined by a mens rea requirement 3.
the legislature has the constitutional power to criminalize the elements of the offense that require mens rea with the strict-liability element excluded. she would be convicted unless she persuaded the factﬁnder by a preponderance of evidence that she took all reasonable care to determine the customer's age Constitutionality SCOTUS has said strict liability offenses do not violate 5th amendment DPC rights (US v. no conviction may be obtained unless the prosecution proves some form of culpability regarding each material element of an offense.e. Mistake of Fact Rule . 3. inquiry into the actor's mens rea would exhaust courts which have to deal with 1000s of minor infractions every day Retributivist Argument one who does not choose to cause social harm and who is not otherwise morally to blame for its commission does not deserve to be punished. retain minor penalties for public welfare offenses. but require proof of an extremely low level of mens rea. Balint) SCOTUS invalidated strict-liability on constitutional grounds (Lambert v.does not matter if mistake was reasonable or unreasonable. Alternatives to Strict-Liability 1. required pursuant to a strict-liability ordinance of which L was unaware LACK OF FAIR NOTICE SCOTUS has never developed a constitutional theory that ties together their decisions Michaels' view: A legislature may employe strict liability regarding an lemenet of an offense if. California) Overturned Lambert's conviction for failing to register with city of LA as prior convicted felon. . Exception: S 2.05 voluntary act and mens rea requirements need not apply to offenses graded as violations rather than crimes. What kind of crime? Speciﬁc Intent Crimes A defendant is not guilty of an offense if his mistake of fact negates the speciﬁc-intent portion of the crime.02(1) provides that. but set higher penalties for violation of public welfare offenses 2. but allow a "lack of mens rea" afﬁrmative defense Example if person sold liquor to a minor. Violations are offenses that cannot result in imprisonment or probation. but only if. continue to deﬁne public welfare offenses as strict liability. require proof of recklessness instead. like civil negligence. but may result in ﬁnes. i.3.First ask. with one exception. if he lacks the intent required int he deﬁnition of the offense . Model Penal Code S 2.
so you are guilty Moral Wrong Doctrine There should be no exculpation for mistake where. Look at the factual panorama through the D's eyes. Legal Wrong Doctrine substitute legal for moral. Evaluate the morality of the actor's conduct. his conduct would still be immoral.04(1) provides: a mistake is a defense if it negates the mental state required to establish ANY element of the offense. Mistake of Law General Rule . Model Penal Code Section 2. Thus.guilty Unreasonable mistake of fact is seen as reckless or negligent. 1. guilty 2.02(1) states: one if not guilty of an offense unless he acted purposely. knowingly. recklessly. It is irrelevant whether the offense would be identiﬁed as general-intent or speciﬁc-intent at common law Either the actor had the culpable state of mind required in the deﬁnition of the offense or he did not. go to #2 If unreasonable.not guilty Reasonable mistake of fact is exculpatory if the actor's mistake negated his moral culpability for the crime No . if the facts had been as the actor believed them to be. every element of an offense has some mens rea requirement Section 2. so you are morally culpable. as the law may require.elemental approach to mistakes General-Intent Crimes Ordinary Approach Was mistake reasonable? Yes . had the circumstances been as he supposed. but could be convicted of lesser offense based on circumstances as he believed them to be Strict-Liability Offenses Under no circumstances does a person's mistake of fact negate his criminal responsibility for violating a strict-liability offense.or negligently. with respect to each material element of the offense. Was mistake reasonable or unreasonable? If reasonable. based on the facts as the actor reasonably believed them to be. and apply similarly D may not be convicted of initially-charged crime. EXCEPTION Defense of mistake-of-fact is not available if the actor would be guilty of another offense. 3.
a person may rely on an interpretation of the law later determined to be erroneous. is ordinarily an element of that offense. interpretation of the law. Appellate court ruled that he was not a peace ofﬁcer as deﬁned by the statute. Lambert v. Reasonable Reliance (excuse defense) Under limited circumstances. or enforcement. or enforcement of the law deﬁning the offense. Exceptions 1. Advice of proviate counsel 2. Ofﬁcial Interpretation of the Law A person will be excused for committing a criminal offense if she reasonably relies on an ofﬁcial statement of the law. Fair Notice and the Lambert Principle Under very limited circumstances. . or both. obtained from a person or public body responsible for the interpretation. ﬁve hundred dollars. Even if mistake of law is reasonable. A local ordinance required felons residing in the city for more than ﬁve days to register their presence with the police. M sought dismissal of his indictment on the ground that peace ofﬁcers were expressly exempted from liability under the statute. California L was a LA resident and convicted felon. knowledge. or as to the meaning of the offense. an ofﬁcial. no excuse or defense. administration. a federal corrections ofﬁcer was arrested for possessing handgun without permit. People v. thus it follows that there typically is no mens rea element capable of being negated by actor's ignorance or mistake of law. negligence as to whether conduct constitutes an offense. 1. later determined to be erroneous. a person who is unaware of a duly enacted and published criminal statute may successfully assert a constitutional defense in a prosecution of that offense. administration. ofﬁcial opinion letter from Attorney General formally interpreting the statute NOT APPLICABLE 1. Ignorance of the law does not usually serve as a failure-of-proof defense. Reliance on one's own interpretation of the law 2. a statute later declared to be invalid 2. a judicial decision of the highest court in the jurisdiction 3. secured from a public ofﬁcer in charge of its interpretation. For a statement of law to be ofﬁcial. but erroneous. recklessness. Violation of the ordinance was punishable by a max sentence of six months in jail. it must be contained in 1. such as Attorney General of the sate. or US interpretation must come in ofﬁcial manner 1. L never registered and was prosecuted under the ordinance.Ignorance of the law excuses no one. He reasonably believed he was a peace ofﬁcer within the meaning of the statute. Convicted after the trial court barred evidence of her claim that she was unaware of the law. no excuse or defense. Marrero Even if statute is unclear.
D's lack of knowledge of. Reasonable-Reliance Doctrine A person's belief that her conduct is lawful constitutes a defense if: 1. she relies on an ofﬁcial. is not a defense to general intent crimes (does not conform with comparable mistake-of-fact rule) Strict-liability A different-law mistake. or application of the law determining the elements of an offense is an element of such offense. rather than a forbidden act . is a defense in the prosecution of a speciﬁc-intent offense. the statement of the law is found in a statute.registered and was prosecuted under the ordinance. ask: 1. Exceptions 1. general-intent. or misunderstanding regarding the meaning or application of ANOTHER law . a judicial decision. (parallels mistake of fact doctrine) See pg 177 in Understanding Criminal Law for example Cheek v. is not a defense to a strict-liability offense because there is no mens rea to negate. ignorance of law or mistake of law will negate mens rea. Model Penal Code Rule: Neither knowledge nor recklessness. is the offense charged one of speciﬁc-intent. and . duty to act was imposed on the basis of a status rather than on the basis of activity 3. whether reasonable or unreasonable. administrative order or grant of permission. whether reasonable or unreasonable. malum prohibitum offense because of these factors. or strict-liability? Speciﬁc Intent A different-law mistake. meaning.will negate the mens rea element of the criminal offense If D seeks to avoid conviction by asserting "Different-law mistakes" on the ground that the different law mistake negates her mens rea. Ignorance of Mistake That Negates Mens Rea When knowledge that the prohibited conduct constitutes an offense is itself an express element of the crime. Convicted after the trial court barred evidence of her claim that she was unaware of the law. nor negligence as to whether conduct constitutes a crime or as to the existence. if the mistake negates the speciﬁc intent in the prosecuted offense. United States General-Intent Offenses Different-law mistake. there was nothing to alert L that she would need to inquire into the law 3. but erroneous statement of the law 2.omission 2. passive behavior. administration.typically a nonpenal law . or an ofﬁcial interpretation by a public ofﬁcial or body responsible for the interpretation. whether reasonable or unreasonable. Rule: Actual knowledge of the duty to register or proof of the probability of such knowledge was a constitutional prerequisite to conviction for a violation of the registration statute. Important distinguishing factors: 1. or enforcement of the law.
or applicationof the law determining the elements of the offense is an element of such offense. administration. Causes v. neither knowledge. although necessary for the result to occur. would the social harm have occurred when it did? If the social harm would not have occurred when it did in the absence of D's voluntary conduct . or an ofﬁcial interpretation by a public ofﬁcial or body responsible for the interpretation. 2.permission. or if the law expressly provides for a mistake of law defense unless the deﬁnition of an offense so provides. or enforcement of the law.the social harm" Causation is implicit in all crimes. and 2. was not published or otherwise reasonably made available to her before she violated the law 3. Confusing Causation with Mens Rea Causation Without Mens Rea . social harm. Ignorance of Mistake that Negates Mens Rea Mistake of law is a defense if it negates a material element of the offense. do not positively contribute to it. the reliance is otherwise reasonable 2. Fair Notice D is not guilty of an offense if she does not believe that her conduct is illegal and the statute deﬁning the offense is: 1.04(1) . nor negligence as to whether the conduct constitutes a crime or as to the existence. nor recklessness. meaning.relates to different-law mistakes A claim that a different-law mistake negates the means rea of the offense is handled in the same manner as a claim of mistake-of-fact under the Code. Conditions Distinguish between causes and the conditions necessary for the causes to occur Conditions are normal events or circumstances that.D is an actual cause of the result But-for test functions to exclude certain forces. from a potential responsibility for ensuing harm. Special Actual Cause Problems 1. not known to her. and link between the two "Defendant's act or omission must 'result in' . Actual Cause (Cause in Fact) But-For (Sine Qua Non) Test There can be no criminal liability for resulting social harm unless it can be shown that the D's conduct was a cause-in-fact of the prohibited result. and 3. Test: But for D's voluntary act(s).cause . Causation Element of Criminal Responsibility Ingredient of actus reus voluntary act or omission. which must be proved by the prosecution beyond a reasonable doubt Only turns up in result crimes rarely arise outside context of homicide prosecutions 1. including human ones.
and/or 4. result is not just "Death of V" but rather " death of V by two mortal wounds" 3. Proximate Cause Juries don't "discover" proximate cause. that is no event of causal signiﬁcance intervened between D's conduct and the social harm for which he is being prosecuted. would the social harm have occurred when and as it did?" reﬁnes the description of the result for which the Ds are prosecuted. public policy decisions Direct Cause Courts are apt to say D was the "direct cause" of the result. 2. 2. An act that is a direct cause of social harm in also a proximate cause of it. State Court ruled that D was entitled to a directed verdict of acquittal because the prosecutor failed to prove beyond a reasonable doubt that D hastened V's death. they "select" it Decision to attach causal responsibility for social harm to one person rather than another is made: 1. Obstructed Cause If D1's actions were obstructed by D2's actions. but which only comes into play AFTER the D's voluntary act has been committed or his omission has occurred.that operates in producing the social harm. a community sense of justice. D could have properly been declared an actual cause of the death Concurrent Sufﬁcient Causes Avoiding "but-for" test failure 1. 2. with common sense 2. ask "But for D's voluntary act. but is not the actual cause of V's murder 2. D1 is not the cause of the result D1 may be charged with attempted murder. by application of moral intuitions 3. So. Deﬁnition Intervening cause is an independent force . Multiple Actual Causes Accelerating the Result Oxendine v. Paradigm Case . If the state had introduced evidence that the beating inﬂicted by D had shortened his child's life.One can be an actual but-for cause of a result. some criminal law courts ask "Whether the D was a 'substantial factor' in causing the prohibited harm?" only way it may sensibly be said that a concurrent sufﬁcient cause is a substantial factor in an outcome is to point out that the force would have been the cause of the harm if circumstances had been different. but not have the requisite mens rea to cause the result Mens Rea Without Causation One can possess a culpable state of mind without being the actual cause of the harm.another "but for" cause . Intervening Cause 1.
does not relieve the initial wrongdoer of criminal responsbility. D cannot escape liability if the intervening cause is superseding in nature. suicidal act 4. . the victim. Coincidental intervening cause relieves the original wrongdoer of criminal responsibility unless the intervention was foreseeable. another force intervenes 3. the D should not escape liability unless the intervening force was so out-of-the-ordinary that is is no longer fair to hold him criminally responsible for the outcome 2. 3. and who commits a voluntary act that is a cause-in-fact of the social harm. 3.1. The only relationship between the D's conduct and the intervening cause is that the D placed the victim in a situation where the intevening cause could independently act upon him. Foreseeability of the Intervening Cause The linchpin of proximate causation is whether the intervening party's acts were reasonably foreseeable. De Minimis Contribution to the Social Harm Some wrongdoers have too minor a casual role to justify criminal punishment. Common Causes 1. Defendant's Mens Rea (Intended-Consequences Doctrine) A voluntary act intended to "bring about what in fact happens. Legal Issue When is the intervening conduct of a third party. intervening cause aggravates V's injuries or accelerates the inevitable (V's death). who acts with the requisite mens rea. has a special place in causal inquiries. 2. D's initial wrongdoing caused the response Since he is responsible for presence of the intervening force. victim's own contributory negligence 3." We usually trace the cause of social harm backwards through other causes until we reach an intentional wrongdoer. Coincidental (Independent) Intervening Causes A force that does not occur in response to the initial wrongdoer's conduct. D gravely harms V 2. be relieved of criminal responsibility because of an intervening cause? 5. natural force (act of God) 4. Distinguishing "responsive" and "coincidental" causes 1. unless the response was not only unforeseeable but highly abnormal or bizarre. wrongdoing by 3rd party 2. and in the manner in which it happens. Factors that Inﬂuence Factﬁnder's Consideration 1. Responsive (Dependent) Intervening Causes An act that occurs in reaction or response to the defendant's prior wrongful conduct. or a natural force sufﬁciently outof-the-ordinary that "it no longer seems fair to say that the social harm was "caused" by the defendant's conduct? Under what circumstances should D.
Cause is deﬁned under the Code as "an antecedent but for which the result in question would not have occurred. the D has not acted with the required culpability unless the actual result including the way in which it occurred. 5. or risked. Under the Code.We usually trace the cause of social harm backwards through other causes until we reach an intentional wrongdoer. Informed Human Intervention A defendant is far more apt to be relieved of criminal responsibility in the case of a "free. Concurrence of the Elements State v." Proximate Cause MPC treats "but for" causation as the exclusive meaning of "causation" in the criminal law. deliberate.03(2)(b).. Model Penal Code Actual Cause Applies "but for" rule To be guilty under MPC. 3. a person's conduct must cause the prohibited result... Principle operates even if the intervening actor has a duty to act. If no culpability requirement exists. knowing. the D was a proximate cause of the resulting harm.. was not too remote or accidental in its occurrence to have a just bearing on the actor's liability or on the gravity of his offense. which expressly invites the jury to reach a common sense result.intervening human agent than in the case of the intervention of a natural force or the actions of a person whose conduct is not fully free. The Code provides that causation is not established unless the actual result is the proximate consequence of the actor's conduct. contemplated. operative wrongful act. Rose Homicide: Murder . and informed" (that is a voluntary. 6. Dangerous Forces That Come to Rest (Apparent Safety Doctrine) When a D's active force has come to rest in a position of apparent safety. the court will follow it no longer. Free. The Code treats matters of "proximate causation" as issues relating instead to the actor's culpability 2. Issue is not whether.(3)(b) deal with situations in which the actual result of the D's conduct diverges from that which was designed. Deliberate. in light of the divergences. Critical Issue in Application Whether the intervention was "free. deliberate. and informed" Sometimes it is not. The varying and sometimes inconsistent proximate causation factors developed by the common law are replaced with a single standard. but rather whether it may still be said that he caused the prohibited result with the level of culpability required by the deﬁnition of the offense. and intelligent) . Omissions An omission will rarely if ever supersede an earlier. "intended consequences can never be too remote" 4.
yet dies seconds later. implied malice intention to commit felony during the commission or attempted commission of which the death results . such as "assault with intent to kill" is permitted Many states are getting rid of rule or applying longer time limits because of medical technology General Principles Common Law Deﬁnition of Murder and Manslaughter Criminal Homicide Killing of a human being with malice aforethought Manslaughter an unlawful killing of a human being by another human being without malice aforethought Voluntary . "Brain death" incorporated by many states Year and a Day Rule D may not be prosecuted for a criminal homicide unless the victim dies within a year and a day of the act inﬂicting the fatal injury.unintentional Aforethought Deﬁnition premeditated? Malice Deﬁnition Person possesses 1 of 4 states of mind intention to kill a human being intent-to-kill murder (express malice) intention to inﬂict grievous bodily injury on another implied malice extremely reckless disregard for the value of human life depraved heart murder. D is not guilty of homicide Common law rule remains in tact in many jurisdictions. such as respiration. If D strikes V in the stomach and fetus dies in the womb. etc. The End of Human Life "Human being dead when there was a complete cessation of permanent stoppage of the circulation of the blood and the cessation of the animal and vital functions consequent thereon. If D strikes V in the stomach and fetus is born alive. but there are also number of states that now include "viable fetus" in the deﬁnition of human being. pulsation.Overview Deﬁnition of Murder the killing of a human being by another human being (changed so as not to include suicide) Deﬁnition of Human Being fetus must be born alive to constitute a "human being" Creates anomalies 1. Criminal homicide prosecution is barred. but non-homicide prosecution. D is guilty of homicide 2.intentional Involuntary .
deliberate. . determine whether a murder occurred was killing committed with malice aforethought? 2. Three types of ﬁrst-degree murder 1. the syllogism invites the jury to infer the requisite speciﬁc intent Deadly Weapon Rule When a person kills another with a deadly weapon. unenumerated felony-murders Intent to Kill General Typically.felony murder. Ordinary people intend the natural and probably consequences of their actions 2. felony-murder (enumerated felony . Sudden Heat of Passion Voluntary Manslaughter 2. intent-to-inﬂict-grievous bodily injury (depraved heart). burglary) 3. Unintentional Killing Involuntary Manslaughter 3. rape. she intended the natural and probable consequences of her actions When the natural and probably consequences of a D's conduct is that another person will die. Three types 1. implied malice Absence of justiﬁcation (self-defense). excuse (insanity). the proof of intent-to-kill enhanced. All of forms OF MURDER are second-degree intentional killings that are not premeditated. The D is an ordinary person 3. murders involving the speciﬁc intent to kill are graded as ﬁrst-degree Proving Intent to Kill Natural and Probable Consequences Rule 1. and premeditated 3. Therefore.Unintentional Killing Felony-Murder Misdemeanor-Murder Degrees of Murder Pennsylvania Model To apply. robbery. committed in statutorily speciﬁed manner killing by poison lying in wait 2. willful. lawyer must: 1. or mitigating circumstance (provocation) Each mental state demonstrates actor's extreme indifference to human life Manslaughter: Types of Unlawful Killings Manslaughter is an unlawful killing that does not involve malice aforethought or Homicide with malice aforethought on the one hand and without justiﬁcation or excuse on the other.arson.
When a person intentionally uses a deadly weapon directed at a vital part of the human anatomy. more morally culpable. Premeditated Most courts understand those to mean more than just intention to kill meant to separate the most heinous sorts of crimes from those which are intentional but lack the gravity of the former Policy People assume deliberateness and premeditation suggest a cold-bloodedness . Presupposes a "cool purpose" "free from the inﬂuence of excitement or passion" Impossible to deliberate without premeditating QUALITY OF TIME SPENT PREPARING/FORMULATING/CONSIDERING premeditation involves QUANTITY of time THUS One who kills suddenly (and whose rage is not mitigated by 'adequate provocation' defense) may be reduced to second degree because the killing is hot-blooded. Prosecutor must prove every element of the crime beyond a reasonable doubt.when one intentionally uses a deadly weapon. son who considers and plans assisted suicide of suffering parent . Willful. Premeditated Killings Willful . a jury instruction of the sort "a person intends natural and probably consequences of their actions" violates DPC.killer is more depraved. an intention to kill may properly be inferred Constitutional Concerns Although we can would expect jurors to draw common sense inferences.who is more morally culpable? Deliberate Some courts treat as synonym for "intentional" Better: "to measure and evaluate the major facets of a choice of problem" "the process of determining upon a course of action to kill as a result of thought. less susceptible to reform. it is more likely that they intend the natural and probably consequences of their actions. Severely intoxicated person might not be able to act with sufﬁcient depth of reﬂection to be guilty of ﬁrst-degree murder. no matter how long she premeditates Premeditated "to think about beforehand" Law divided about how much prior thought must go into a homicide before it is considered One view: "no time is too short for a wicked man to frame in his mind the scheme of murder" essentially equates premeditation with any intentional killing (if premeditation can be instantaneous) .speciﬁc intent to kill Deliberate. Deliberate. including weighing the reasons for and against the action and considering the consequences of action. so they wish to punish these killers more severely But consider: person who spontaneously pushes small child sitting on a bridge into a river vs. not cold-blooded.
but also to turn the matter over in her mind and to give the matter at least a second thought the greater the substance of the deliberation requirement. careful."substantial risk of death. then extremely recklessness is the form of risk-taking that constitutes murder. and gives rise to apprehensions of danger to life. but death results This form of malice nearly almost results in second-degree murder Grievous Bodily Injury "assault with intent to commit grievous bodily injury "such injury as is grave and not trivial. or limb" Tennessee . Any time a person intends to imperil life (but does not intend to kill). and cool calculation and consideration of effects and consequences in a matter of a split second Murder: Intent to Inflict Grievous Bodily Injury Malice aforethought is implied if a person intends to cause grievous bodily injury to another. the longer the period of premeditation must be It seems impossible to conduct unhurried.essentially equates premeditation with any intentional killing (if premeditation can be instantaneous) Premeditation then loses its independent status means there is no meaningful distinction between ﬁrst and second degree murder Other view: some appreciable time to premeditate requires proof that killer her time not only to form intent. protracted or obvious disﬁgurement. organ. in which case implied malice is easily proven). depravity of the heart and mind. extreme physical pain. it is likely that the jury will ﬁnd express malice (unless directed at non-vital part of the body. Facts Supporting Finding of Extreme Recklessness Accused does not intent to kill victim. but malice is implied because there is a "wanton and willful disregard of the likelihood that the natural tendency of the D's behavior is to cause death or great bodily harm" . malignant heart. or mental faculty If D intentionally used a deadly weapon on the victim. protracted loss or substantial impairment of a function of a bodily member. protracted unconsciousness. wickedness of disposition Reckless or extremely reckless homicide is also another way to phrase be sure to distinguish between reckless (criminal negligent) and extreme reckless homicide in jurisdictions where the distinction matters is recklessness (criminal negligence) is required for manslaughter. thorough. she acts with "extreme recklessness" still another version of malice Murder: Extreme Recklessness (Depraved Heart Murder) Terminology Malice aforethought is implied if a person's conduct manifests an extreme indifference to the value of human life Almost always constitutes a second-degree murder Abandoned heart. health. depraved heart.
the actor is guilty of murder. resulting in mauling of a child 4. fosters their aggression through improper training. negligently . drives her car at a high rate of speed in inclement weather and while intxoicated. purchases Rottweiler dogs.. intentionally shooting a ﬁrearm in or into a room full of people 2. Homicide: Felony-Muder Rule One is guilty of murder if a death results from conduct during the commission or attempted commission of any felony. Acted with depraved heart. unconcern and indifference as to whether anyone is harmed or not" or "where the killing was proximately caused by an act. out of indifference.fails to feed child for weeks. killing a pediestrian or car occupant 3. reckless murder has never been drawn with clarity. Examples 1. rape. When such recklessness is extreme .. retained in at least some form in every state Modern Statutes a death that results from the commission of a speciﬁcally listed felony (arson. Lethal omission . and places them in an unsecured yard. it is second-degree murder Applies whether felon kills the victim 1. A person kills recklessly if she consciously disregards a SUBSTANTIAL AND UNJUSTIFIABLE risk to human life.when the risk of death is great and the justiﬁcation for taking the risk is weak or non-existence . Most present day courts provide that implied malice is proven if the actor's conduct involves the "deliberate perpetration of a knowingly dangerous act with . which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life. intentionally 2. robbery. If a death results from an unspeciﬁed felony. the natural consequences of which are dangerous to human life. fails to care for someone contractual duty to do so Distinguishing Murder from Manslaughter The line between unjustiﬁed risk-taking that constitutes involuntary manslaughter and that which constitutes depraved heart.willful disregard of the likelihood that the natural tendency of the D's behavior is to cause death or great bodily harm" Each case involves risk-taking serious enough that "it might be fairly said that the actor "as goo as" intended to kill his victim and displayed an unwillingness to prefer the life of anohter person to his own objectives. or burglary) constitutes ﬁrst-degree murder for which the maximum penalty is death or lifeimprisonment. plays Russian Roulette and kills another person 5. recklessly 3.
it would be upgraded to felony-murder by the rule.4. . or collateral to.involuntary manslaughter . accidentally 5. there could never be an involuntary manslaughter conviction because once the felony . Facts-of-the-Case Determine the dangerousnessof a felony by considering the "Facts and the circumstances of the paritcular case to deterine if such elony was inherently dnagerous in the manner and circumstnaces in which it was committed" 3.than the commission of a felony not resulting in death. as well. If the felony is not independent. Limits on the Rule Inherently-Dangerous-Felony Limitation Many states limit the rule to homicides that occurred during the commission of a felony dangerous to human life. Some courts apply both tests . by its very nature. Rationale Deterrence intended to deter negligent and accidental killings during the commission of felonies Reafﬁrming Sanctity of Human Life reﬂects society's judgment that the commission of a felony resulting in death is more serious. Abstract A court will ignore the facts of the speciﬁc case and instead. then the felony MERGES with the homicide and cannot serve as the basis for a felony-murder conviction. 2 Approach to Inherently Dangerous 1. consider the elements of the offense in the abstract The test if whether the crime. cannot be committed without creating a substantial risk that someone will be killed. the homicide. and therefore. deserves greater punishment . Without this doctrine.was committed. OR an offence carrying a high probabilty that death will result is an inherently dangerious felony 2. intent to commit a felony constitutes the implied malice required for common law murder Extends to accomplices in the commission of the felony. guilty Independent-Felony (or Merger) Limitation A felony-murder rule only applies if the predicate felony is independent of. Transferred Intent Felon's intent to commit a felony is transferred to the homicide but this is a misuse of the intent doctrine Easing Prosecutor's Burden of Proof in proving malice aforethought by dispensing with the requirement that she show that the felon intended to kill or injure the V grievously or that the felon was aware that her conduct was highly dangerous to human life.if dangerous under either one. unforeseeaby Strict liability for a death that occurs during the commission of a felony.
for purposes of felony-murder. A person is responsible for the acts of another if the actor-shooter if functioning as an agent of the non-shooter. Killing by a Non-Felon Issue Should felony-murder rule apply if. personally commits the homcidal act. Agency relationship exists when the secondary party is an accomplice of the primary party. it would be upgraded to felony-murder by the rule. during the course of the felony. which provides that the felonymurder rule does not extend to a killing. Support for Agency Approach . although growing out of the commission of the felony. Thus. if directly attributable to the act of one other than the D or those associated with him in the unlawful enterprise.was committed. not when the death itself ensued. a murder is committed but not by one of the felons? Agency Approach Majority of states apply "agency theory" of felony-murder. the homicide must occur "with the res gestate [things done to commit] the felony. Merging Crimes manslaughter assault with a deadly weapon burglary with a deadly weapon Exception A felony does not merge if the assaultive conduct involves "an independent felonious purpose" A felony does not merge with a homicide where the act of causing death was committed with collateral and independent felonious design separate from the intent to inﬂict the injury that caused the death. Time and Distance Requirements 1. Most courts also provide that. if a death results during the commission of an armed robbery. Relatively close proximity in terms of time and distance between felony and homicide time period typically begins when the actor has reached the point at which she could be prosecuted for an attempt to commit the felony. the underlying assault does not merge with the homicide since the felonious purpose of the conduct (to take property) is independent of the homicide. in order for the felony-murder rule to operate. Causation Requirements Must establish a "but-for" causal connection. and it continues at least until all of the elements of the crime are completed. 2. res gestate continues while the felon ﬂees the scene until she reaches a place of temporary safety. rather than the felon. Res Gestate Requirement Courts commonly state that. Time requirement means when the killing conduct occurred.involuntary manslaughter .once the felony . Felony-murder rule does not apply if an adversary to the crime.
felony-murder rule has little or no deterrent effect when the shooter is a non-felon. but done in an unlawful manner. Homicide committed in a criminally negligent manner 3. Involuntary Manslaughter unintentional killing that is the result of an "act. presumably believes a felon should not be convicted in a justiﬁable homicide because if she was. it would be as if she were being punished for causing a good result. Distinguishing Felony-Murder from Other Theories (Provocative Act Doctrine) A felon may be held responsible for the death of another at the ahnds of a third party if the basis for the cahrge is not felony-murder. Justiﬁed on ground that "when a felon's attempt to commit a felony sets in motion a chain of events which were or should have been within him contemplation when the motion was initiated. lawful in itself. since the felon has no control over the actions of the innocent person. 2. but in resistance to it. he should be held responsible for any death which by direct and almost inevitable sequence results from the initial criminal act. Court that draws distinction between justiﬁable homicides and excused homicides.1. Unlawful-act Manslaughter/Misdemeanor Manslaughter unintentional killing that occurs during the commission of attempted commission of an unlawful act . and without due caution and circumspection. whether the shooter is a felon or a third party. Proximate Causation Approach Minority Rule A felon is liable for any death that is the proximate result of the felony. whereas the death of a bystander accidentally shot by a non-felon is an excusable homicide. Limited Version Should a court that permits the operation of the felony-murder rule when the shooter is a non-felon take into consideration who was shot? Difference based on principle that when a non-felon kills a felon this homicide is justiﬁable. Killing cannot truly be said to be within furtherance of the crime. but instead is founded on what is sometimes termed the "provocative act" doctrine Homicide: Manslaughter Deﬁnition unlawful killing that does not involve malice aforethought MPC commentary description .Homicide without malice aforethought on the one hand and without justiﬁcation or excuse on the other 3 types 1. Voluntary Manslaughter intentional killing committed in sudden heat of passion as the result of adequate provocation 2. and the matter ultimately is one for the jury to decide. Result will depend on particular facts of the case.
penalties vary. but most states set the max penalty at life imprisonment or substantial terms of years Considerations Victim's Relationship to the Rapist Considered in MPC Actus Reus General Sexual intercourse by a male with a female not his wife constitutes rape if it is committed 1. forcibly 2. or sexual intercourse achieved: 1.Common Law "Carnal knowledge of a woman forcibly and against her will. where killing occurs during felony .this will be murder Homicide: Unintentional Killings Homicide: Misdemeanor-Murder unintentional killing that occurs during the commission of attempted commission of an unlawful act If killing occurs during a non-felony. states have expanded upon the common law scope to include sexual intercourse with minor girls over the age of 10 Sexual intercourse with a very young girl remains punishable at the level of forcible rape Sexual intercourse with older girl is a felony of a lesser degree Grading the Offense felony." general-intent offense husband cannot be guilty of raping his wife Statutes: Traditional and Reform Traditional focus on forcible rape.this will be murder Rape General Deﬁnition .sexual misconduct. then the homicide will only amount of manslaughter different from felony-murder. sexual assault divided into degrees marital immunity rule narrowed or abolished Statutory rape remains an offense. then the homicide will only amount of manslaughter different from felony-murder. where killing occurs during felony . forcibly . but nonconsensual forms of sexual intercourse prohibits sexual intercourse by male with a drugged or unconscious female gender-neutral broadened to include all forms of penetration name of crime changed . against the will of the female 3. only females can be raped Reform now prohibits nonforcible.only males can rape.If killing occurs during a non-felony. and without her consent gender-speciﬁc .
. or internal. Consent may be withdrawn If female withdraws consent before intercourse occurs. but she has not consented does no always mean no? 3. it does not exist when permission is refused. upon a female too incompetent to give consent (drugged. does not convert the act into rape (though if man uses force or threats of force after consent is withdrawn. but fail to manifest her wishes outwardly. Intercourse secured by non-physical force does not ordinarily constitute forcible rape.if male believes she has consented. Mens rea issues . Traditional Law Rule Successful prosecution for forcible rape requires proof that the female did not consent to the intercourse and that the sexual intercourse was secured by force. Consent issues: 1. example . Line between consensual and nonconsensual sex can be little more than a normative line drawn between the pressures that a person should or should not be expected to resist. forcible rape conviction would be inappropriate.female may subjectively want intercourse. mentally disabled. male is guilty of forcible rape if he continues If female withdraws consent after penetration. may be expressive or external concept It exists when permission is given verbally or by some other external act by the party. Silence? Should the legal onus be placed on the male to obtain afﬁrmative permission or on the female to deny it? 2. not forcible rape for an adult guardian to threaten to recommit a 14-yr old girl to juvenile detention center if she does not submit to his advances. two concepts are distinct Consent . by means of certain forms of deception 3. traditionally.very complex may be understood as attitudinal. like batter) . while the female is asleep or unconscious 4.Traditional Rule Force and Resistance If a perpetrator used or threatened to use extreme force ..the element of force is satisiﬁed. Traditional Position nonconsensual intercourse is "forcible" is the male uses of threatens to use force likely to cause serious bodily harm to the female (or possibly to a third person) or if the male uses sufﬁcient force to overcome the female's physical resistance to his actions. Yes does not always mean yes. state of mind. lack of consent. but not showing of force. .2. or too young) Forcible Rape 1. 4.and force likely to cause serious injury or death .two necessary elements However. or for a high school principal to threaten not to allow a senior to graduate unless she has sex with him Lack of Consent Male's use of grave force proves both nonconsent and force . if may constitute a lesser offense.
Moderate Force Rape conviction will not stand unless it is proven that the female resisted the male's unwanted overtures and her resistance was overcome by force or she was prevented from resisting by threats to her safety Common law resistance requirement imposes on the female the obligation to physically respond in a manner that demonstrates her lack fo consent and causes the prepetrator. Law in Transition Resistance Requirement A few jurisdictions by statute have abolished the resistance requirement. to use violence (or its threat) in order to overcome her will. but: Proof of the female's resistance may be critical to the prosecutor in proving beyond a reasonable doubt that a rape has occurred (that the intercourse was forcible and nonconsensual). how should non-consent be proved? 3. the only real issue should be whether the female desired intercourse. is insensible through fright. if the male KNOWINGLY takes advantage of that fear in order to accomplish sexual intercourse. fear of death or great bodily harm. male's use of force should simply be one way of showing that the female did not consent Issues with changes in statutes to deﬁne various forms of nonforcible intercourse as rape: 1. or to resist the attack in every way possible and continue such resistance until she is overcome by force. Should some or all nonforcible forms of prohibited nonconsensual intercourse be graded as lower degree of rape than the forcible variety? . or resistance that is reasonable under the circumstances Resistance may not be as rigidly required as before. even if female's fears are unreasonable. and/or that defendant was on reasonable notice Force: Changing Its Deﬁnition (or Abolishing the Requirement) Reformists believe under an autonomy and privacy approach. or resistance sufﬁcient to establish that an act of sexual intercourse was without consent and by force. or ceases resistance from exhaustion. but threat of force must be serious objective Fear of force is not enough to uphold a rape charge subjective Female's subjective apprehension + some conduct by male that places her in reasonable apprehension for her safety = rape elements proved Some courts say. rape charge is appropriate 2. require: a female to earnestly resist. if he intends to continue notwithstanding her physical expression of nonconsent. Should all forms of nonconsensual intercourse be criminalized? 2. Sharply criticizes. thus. Threat of Force Threat may be verbal or nonverbal. "resist to the utmost" "female must follow the natural instinct of every proud female to resist the sexual attacker unless exhausted or overpowered. often does not hold very much sway in common law Fear of Force v. Some states have reduced the signiﬁcance of the rule by lowering the barrier.
then he is acting without moral culpability.T.S. . Some courts treat as fraud in factum. if he has intercourse without securing a "yes" in words or action before proceeding.T.3. so the law treats the intercourse as consensual for purposes of common law rape law. person is guilty of sexual assault if he commits an act of sexual penetration of another person in the absence of afﬁrmative and freely given permission either express or implied. Fraud-in-the-inducement does not vitiate consent. others as fraud in inducement Mens Rea General-intent offense defendant need not possess an intention that sexual intercourse be nonconsensual Rule A person is not guilty of rape if he entertained a genuine and reasonable belief that the female voluntarily consented to intercourse with him. to obtain the consent of a female to sexual intercourse. even the force inherent in the sexual act itself then justiﬁes forcible sexual assault prosecution. Grifﬁn force means force substantially different from or substantially greater than the physical force normally inherent in the act of consensual sexual intercourse State in the Interest of M. and/or non-physical forms of coercion Others have left term undeﬁned and invite juries to resolve the issue CaseLaw People v. particular in acquaintance rape context. Fraud "A seducer is not a rapist. Man commits forcible rape under M. conforms with ordinary mistake-of-fact principles relating to general intent offenses Some jurisdictions have ruled that even a reasonable mistake of fact regarding female's lack of consent is not a defense Expansion of Rape Law Issues Now includes intercourse secured in the absence of grave force or resistance. for the speciﬁc act of penetration. the issue of mens rea becomes more critical If male genuinely and reasonably believes that the female is consenting.S. and escape criminal punishment as a rapist. Should some or all nonforcible forms of prohibited nonconsensual intercourse be graded as lower degree of rape than the forcible variety? What is force? Some say "minor physical acts. Fraud-in-the-factum means the female's consent is invalid because she is unaware she has consented to an act of sexual intercourse Courts struggle with male who engages in sex by deceiving a woman into believing that he is her husband." A male may use any nonforcible "sales technique" no matter how deceptive.
unless the parties are living apart under a formal decree of separation. female claims forcible rape . extreme pain or kidnapping. the offense in a felony of the second degree . or recklessly regarding each of the material elements of the offense. into a strict liability offense Jury Instruction Rule Where there is evidentiary chasm . grievous bodily harm. he administers or employs drugs or intoxicants in a manner that substantially impairs the female's ability to appraise or control her conduct.The effect of dispensing with the reasonable mistake-of-fact doctrine is effectively. he has sexual intercourse with a female under any of the following circumstances: 1.a mistake-of-fact instruction is inappropriate. Marital Immunity Rule Rule husband cannot be guilty of rape committed by himself upon his lawful wife Rationale Consent/Property Protection of the Marraige Protection of Husband in Divorce Proceedings Less Serious Harm Breakdown law is in transition in the US 24 states have abolished Some of remaining jurisdictions have abolished immunity for forcible rape. the female is unconscious 3. acting purposely. the female is less than ten years of age 2. The D inﬂicted serious bodily injury upon the female or another in the course of the rape. a felony carrying severe penalties. Marital Immunity Rule preceding conduct (1-4 above) does not constitute rape if the female is his spouse. extends immunity to persons "living as man and wife" though they are not formally married Felony in the ﬁrst degree in 2 circumstances 1.and no evidence is introduced of equivocal conduct by the female that the D could have mistaken for consent . to convert rape. or 2. knowingly. Model Penal Code Rape Rape Rule A male is guilty of rape if. but retain immunity for other sexual offenses Rule does not apply if parties are LEGALLY separated or living apart at the time of the rape. the female was not a "voluntary social companion" who had "previously permitted him sexual liberties" In all other circumstances. or 4. he compels the female to submit by force or by threatening her or another person with imminent death.D says she consented.
Deadly force is ONLY justiﬁed in self-protection if the actor reasonably believes that its use is necessary to prevent imminent and unlawful use of deadly force by the aggressor. oral. if he has sexual intercourse with a female in any one of the three circumstances: 1. but does make up the offense of gross sexual imposition Gross Sexual Imposition A male is guilty of gross sexual imposition (a felony of the third degree). Common law approach to fraudulent rape Self-Defense A non-aggressor is justiﬁed in using force upon another if he reasonably believes such force is necessary to protect himself from imminent use of unlawful force by the other person. 3. 4. Sexual intercourse obtained by fraud-in-the-factum does not constitute rape. deﬁnition of rape is broader than common law 1. rape is deﬁned in terms of the male's act of aggression or overreaching. Example Man who obtains intercourse by threatening a woman with loss of employment is guilty of GSI "woman of ordinary resolution" was meant to distinguish between serious threats and trivial ones (threat of parking ticket) offers to not fall within scope of the offense Example a man is not guilty of GSI if he offers a poverty-stricken woman a high-paying job if she submits to sexual intercourse 2.Comparison to Common Law Tradition in various regards 1. Components of Self-Defense . as the result of mental illness of defect. she is unable to appraise the nature of her conduct 3. rather than the negative terms of the female's lack of consent. and anal sexual penetration by the male of the female. if a male knows that a woman is unaware that a sexual act is being committed upon her or that she submits because she mistakenly supposes that he is her husband. term sexual intercourse is deﬁned broadly to include genital. committed if the victim submits as a result of a threat to kidnap her or another 5. if a male has sexual relations with a female with knowledge that. offense is committed if female submits as a result of violence directed at third party 2. afﬁrms the general principles that nonconsensual sexual intercourse with a spouse is not rape Differs from common law 1. if the female submits as a result of a "threat that would prevent resistance by a woman of ordinary resolution. gender-speciﬁc 2. 2. but recognizes that this may sometimes be required to convince jury that sexual act was compelled. Does not require proof of resistance by the victim.
D is unavailable to one whose self-defense belief. proportionality 3. regardless of likelihood of such result occurring. he may also use nondeadly force against a deadly threat (and in some circumstances may be required to do so). Deadly Force Clariﬁcation Deadly Force Deﬁnition Deadly force is force likely or reasonably expected to cause death or serious bodily injury. Objective Component of Self-Defense Claim D's belief in this regard must be one taht a reasonable perosn in the same situation would have possesse. although genuine. even if the decedent did not represent an imminent threat to the D. Unreasonably-mistaken actor loses his self-defense claim and therefore is guilty of murder. a person may not use deadly force against an aggressor if he knows that he has a completely safe avenue of retreat. necessity 2. A person IS NEVER permitted to use deadly force to repel what he knows is a nondeadly attack.1. Non-Aggressor Limitation Deﬁnition of Aggressor . even if deadly force is the only way to prevent the battery. it is necesary. Reasonable Belief Subjective Component of Self-Defense Claim Jury must determine D subjectively believed that he needed to use deadly force to repel an imminnent unlawful attack. and only to the extent that. self-defense is limited to IMMINENT THREATS A person may not use deadly force to combat an imminent deadly assault if some nondeadly response will apparently sufﬁce. the actor's state of mind in regard to the likely outcome is irrelevant. Other jurisdictions: The actor knew or reasonably should have known that the foce used was likely to cuase death or seirous injury. even if appearances prove to be false. Some jurisdictions include a state of mind component: Deadly force is force INTENDED to cause death or serious bodily injury. reasonable-belief rule Necessity Rule Force should not be used against another person unless. Rule: A defendant is justiﬁed in killing a supposed aggressor if the D's belief in this regard is objectively reasonable. A person may use nondeadly force to repel a nondeadly threat. was UNREASONABLE. Proportionality Rule A person is not justiﬁed in using force that is excessive in relation to the harm threatened. In some jurisdictions.
the issue of whether a D lost the right of self-defense in a conﬂict ordinarily is a matter for the jury to decide based on a proper instruction on the meaning of the term aggressor Removing the Status of Aggressor Deadly Aggressor A deadly aggressor is a person whose acts are reasonably calculated to produce fatal consequences. One who threatens unlawfully to commit a battery upon another or who provokes a physical conﬂict by words or actions calculated to bring about an assault Rule An aggressor has no right to a claim of self-defense Courts frequently state a person is not privileged to use force to resist an attack unless he is free from fault in the difﬁculty. must retreat before using deadly force. before using force in .A non-aggressor is not ordinarily required to retreat from his dwelling.partial defense Special Issues of Retreat Issue Whether an actor.must he choose th latter option? Law in this area is in ﬂux The Approaches A non-aggressor is permitted to use deadly force to repel an unlawful deadly attack. and therefore. This rule is strictly applied Nondeadly Aggressor When the victim of a nondeadly assault responds with deadly force. then he may also use deadly force. he may use deadly force. the original aggressor immediately regains his right of self-defense. under attack. avoid the killing of the aggressor. Some jurisdictions require retreat ﬁrst. then. a person is an aggressor even if he merely starts a nondeadly conﬂict. unnecessary (thus.use deadly force or retreat to a place of safety . it is incorrect to state that the ﬁrst person who uses force is ALWAYS the aggressor 3. even though he knows he could do so in complete safety. If an innocent person is attacked. destroying that component of the defense) Castle Exception Universally recognized . but he may be convicted of manslaughter instead of murder . or if no such safe place to retreat exists. deadly force is objectively speaking. expressly or impliedly. if V pursues him. The only way deadly aggressor may regain the right of self-defense is by withdrawing in good faithf rom the conﬁlct and fairly communicating this fact. to his intended victim. and if he has only two realistic options . even if he is aware of a place to which he can retreat in complete safety. If a person can safety retreat.Aggressor is one whose afﬁrmative unlawful act is reasonably calculated to produce an affray foreboding injurious or fatal consequences. not every bad act is an unlawful act reasonably calculated to produce foreboding injurious or fatal consequences 3 Features 1. 2.
or one who is justiﬁably using self-defense (like aggressor's victim) Conduct that would constitute a crime or a tort is unlawful. Traditional Rule If any of the elements are missing. Unlawful. even if the harm seems inevitable. Nature of the Threat . if is truly necessary for a person to use deadly force before a threat is imminent. is a virtual certainty 4. even if harm is imminent. if it is unnecessary. just as the law should disallow the use of force. premature attack negates this Unlawful Force A person may not defend himself against lawful justiﬁed force. Danger must be pressing and urgent. necessity must prevail. self-defense is a full defense. Defense of Imminency If we get rid of imminency requirement. it is not imminent. Debate Some scholars reason that imminency requirement is in conﬂict with the necessity requirement Consider battered women . even though he knows he could do so in complete safety. traditional self-defense doctrine ought to justify preemptive strike Issue becomes. may not assert self-defense against police ofﬁcer.if there is a conﬂict between imminence and necessity. she should be justiﬁed in doing so. before using force in self-defense. How prematurely the perceived aggression may be pre-empted. most courts also allow victim to stand their ground even when aggressor is co-dweller in house. Proposed Components: 1.A non-aggressor is not ordinarily required to retreat from his dwelling. and the D may be convicted of murder. in the relatively near future 3. and there are NO reasonable alternatives 7. the defense is wholly unavailable to a D. Thus. if death of serious bodily harm 2. .Universally recognized . when it is imminent 6. and Deadly Imminent Force is said to be imminent if it will occur immediately or at the moment of danger.Imminent. if it is not immediate. Force is not imminent if the aggressor threatens to harm another person at a later time. we blue the line between offense and defense self-defense is a RESPONSE to aggression. and the future attack cannot be adequately defended against 5. Generally speaking. even if that person could later be excused (through insanity or infancy grounds) Imperfect Self-Defense In general.
which results in conviction of manslaughter 2 Versions 1. so deadly force would be disproportional. (present occasion v. forcible rape 4. Impermissible Use: Resisting Unlawful Arrest A person may not use force to resist an arrest that he knows is being made by a police ofﬁcer even if the arrest is unlawful (without probably cause). death 2. rather than murder. Does not prohibit use of force by an arrestee who believes that the ofﬁcer intends to use excessive force in effectuating the arrest. serious bodily injury 3. kidnapping controversial component because not all kidnapping are done with deadly force. his right of selddefense is considered incomplete. imminent) Issue becomes whether the innocent person's need to use force exists immediately. is guilty of manslaughter. and the D may be convicted of murder. 2. even if the actor brandishes a weapon to back up his spurious threat. Some states recognize imperfect self-defense or incomplete self-defense. Nondeadly aggressor who is the victim of a deadly response must retreat to any known place of completely safety before using deadly force. 2. One who kills another because he UNREASONABLY believes that factual circumstances justify the killing. authorizes self-protection sooner than the common law does. Deadly Force Deﬁnition Deadly force is force used for the purpose of causing or that the actor knows to create a substantial risk of causing death or serious bodily injury. Distinguish from Common Law 1. doesn't need to be reasonable. Permissible Use Deadly force is unjustiﬁable unless the actor believes that such force is immeidately necessary to protect himself on the present occasion against 1. Model Penal Code General Rules Force Permissible Use A person is justiﬁed in using force upon another person if he believes that such force is imminently necessary to protect himself against the exercise of unlawful force by the other individual on the present occasion. but permissible under the Code . Courts applying the Code have held that a mere threat (without purpose) to cause death or serious bodily injury to another is not deadly force.If any of the elements are missing. drafted in terms of actor's subjective belief in the need to use force. if he fails to do so. the defense is wholly unavailable to a D.
2. unless he withdraws from the conﬂict. These defenses are subject to Section 3. and V is not in his place of work. Summarizing MPC Deadly Force Rules 1. if he is attacked by a co-worker in their place of work.09.consistent with common law treatment of deadly aggressors if aggressor breaks out of struggle. Retreat A person may not use deadly force against an aggressor if he knows that he can avoid the necessity of using such force with complete safety by retreating. D may not kill V in self-defense if he started the conﬂict with the intent to cause death or great bodily harm. actor was aggressor and wants to regain his right to self-defense 2. provoked the use of force against himself in the same encounter Narrower than common law doesn't include nondeadly aggressor component "same encounter" . although he may be charged with a crime pertaining to the initial acts that commenced the conﬂict. although some states recognize an imperfect defense in these cases. if D did not start the unlawful conﬂict. Example: . D knows of no safe place to retreat 3. even if assailant is co-dweller Exception . for the initial unlawful assault or battery that commenced the conﬂict. even if D could have retreated. 3. but did so without the purpose of provoking a deadly conﬂict. he may use deadly force against V if he believes that such force is immediately necessary on the present occasion to combat an unlawful deadly assault by V. D may be proscedured however. in in terms of his subjective belief regarding the other circumstnaces that are material to the particular justiﬁcation claimed. Exception . D is in his home or place of work. assuming one of the following circumstances exsit: 1.retreat from home is required if: 1. new encounter begins if V starts to attack him again 2.no retreat from home. D's privilege to kill is restored.Impermissible Use 1. D has retreated and V continues to pursue him 2. Mistake of Fat Claims and MPC Justiﬁcation Defenses Common law justiﬁcation defense is not available to one who acts on the basis on an UNREASONABLE belief. MPC recognizes an imperfect defense MPC justiﬁcation defenses are deﬁned solely in terms of D's subjective belief in the necessity of using the force. If D did start the unlawful conﬂict. D may still use deadly force in all of the circumstances noted above. Deadly Force by Aggressors No deadly force by a perosn who with the purpose of casuing death or seirous bodily injury. however When D is reckless or negligent in regard to the facts relating to the justiﬁability of his conduct. the justiﬁcation defense is unavailable to him in a prosecution for an offense for which recklessness or negligence sufﬁces to establish culpability. If he does so.
is unavailable to him in prosecution for such recklessness or negligence as to the bystander. or recklessly killing V. or employment relation. but the defense is not available to him if he is prosecuted for negligent homicide. knowingly. Justiﬁcation Defense and Risks to Innocent Bystanders If a person justiﬁably uses force against an aggressor. but self-protection is given weight as being justiﬁable. Defense was originally limited to protection of persons related to the intervenor by consanguinity.If D purposely kills V because he unreasonably (negligently) believes that V is about to kill him.not punished for good motives Model Penal Code Rule Intervenor is justiﬁed in using force upon another person in order to protect a third party is 3 conditions are met: 1. This rule is an exception to the common law rule that an actor is justiﬁed in using force based on reasonable appearances. the intervenor may use force when. under circumstances as D believes them to be. but uses such force in a reckless or negligent manner in regard to the safety of an innocent bystander. marriage. 2. Concerns about undercover law enforcement ofﬁcers being attacked by intervenors trying to assist criminals because of "reasonable appearance" Advocates of reasonable appearance rule justify it on utilitarian and retributive grounds.consequence of old alter ego doctrine would have onlookers hesitate before intervening in disputes R .Alter ego rule violates concepts of just desserts because it results in in liability and punishment without fault. Limits 1. though.Limitation is enforced only infrequently today. the defense of self-protection is available to D if he is charged with purposely. and force in the same degree. hard to prove recklessness. . X would be justiﬁed in using such force in self-defense . Defense of Others Rule A person is justiﬁed in using force to protect a third party from unlawful use of force by an aggressor. . in self-defense. the justiﬁcation defense. the third party would apparently be justiﬁed in using force to protect herself. Intervenor's right to use force in such circumstances parallels the third party's right of selfdefense. "Alter Ego" rule (once applied by majority of jurisdictions): Intervenor could only use force to defend a third party if the latter party would in fact have been justiﬁed in using force. D uses not more force to protect X than D would be entitled to use in self-protection. which is unavailable to the person in regard to the aggressor. U . because you need to show D took an unjustiﬁable risk. and to the extent that. based on circumstances as D believed them to be 2.
Under no circumstances. she is not required to retreat before using force in X's protection. Neither D nor X is required to retreat "in the other's dwelling or place of work to any greater extent than in her own" Based on intervenor's subjective beliefs HOWEVER. Deadly force NEVER permitted Defense of Habitation . Title to Property Examples .when the dweller of a home uses force to prevent unlwaful entry into the actor's "castle" by the intruder.3. Clariﬁcations Possession v. If D would be required to retreat to a place of known safety if she were protecting herself in such circumstances. may a person use deadly force to prevent dispossession. Defense of Property and Habitation Defense of Property .when someone uses orce to prevent another person from dispossessing him of his property immediately after dispossession. if D's belief in this regard is negligent or reckless. A person in possession of real or personal property is justiﬁed in using nondeadly force against a would-be dispossessor if he reasonably believes that such force is necessary to prevent imminent. but it is possession of it) Necessity for the Use of Force A person may use no more force than reasonably appears necessary to defend his possessory interest in the property. Once a person is dispossessed of his property. may use nondeadly force against V. except in the unlikely circumstance that she knows that such a retreat will assure X's complete safety. 2. D is required to attempt to secure X's retreat if X would be required to retreat under the rules of self-protection. Some common law courts have speciﬁed that a person may not use force until he has sought to avoid a physical conﬂict by requesting desistance by the would-be dispossessor. but this requirement only applies if D knows that X can reach complete safety by retreating 3. the justiﬁcation would be unavailable to her in a prosecution for negligent or reckless homicide.D. D believes that her intervention is necessary for X's protection Code's Self-Protection Retreal Rules Limited Applicability in defense of other persons 1. 1. unlawful dispossession of the property. a mechanic repairing X's car. Deadly force justiﬁed in certain situations Defense of Property General Rule A person may use force to protect his property. A request is unnecessary if it would be futile or would jeopardize the defender's or another's personal safety. his right to use force to defend his interest in it is extinguished. such as when the wrongdoer attempts to take the property by force rather than by stealth . in order to prevent X from stealing V's car (he doesn't not OWN the car. the thief.
to recapture it. Prevailing moder position seems to be that one may not threaten that which he cannot in fact be permitted to do. and escalate situation. HOWEVER. one who is unlawfully dispossessed of his personal property may follow the dispossessor in hot pursuit and use nondeadly force. even if it is the only means available to prevent the loss.2. threat of deadly force might be preferable to implementation of nondeadly force. Defense of Habitation Rationale Reverence for private habitation "castle" protections Privacy protection When a wrongdoer seeks to enter a person's dwelling. the common law provides that a defender of property must not use force beyond that which the urgency of the occasion reasonably requires. more than property is invaded. Thus.. . believes. it follows that D cannot reasonably believe that V represents a threat to dispossess him unlawfully. or as a reasonable person should believe. if necessary. Threat to Use Deadly Force Although a person may not use deadly force to protect his property. no privilege to use force against V. Likewise. to regain or recapture his property. Those who support threatening deadly force content that a threat of deadly force will often deter a wrongdoer without harming him. Recapture of Property A person may not ordinarily use force to recapture property of which he has been unlawfully dispossessed. may he threaten to use deadly force? Little case law on the subject. that V has a legitimate claim of right to possession of the property in question. kicking severely Deadly Force Deadly force is never permitted in defense of property. the right to use nondeadly force to protect property is sometimes transformed into an independent right to use deadly force for self-protection or defense of a third party. Claim of Right A person may assert a claim of right to possession of property and therefore. Thus. The fortress has been attacked. Thus. However. Exception A person who acts promptly after the dispossessino may use nondeadly force. Relevant in one circumstance: If D knows. a person wrongfully evicted from his land may immediately re-enter the property and attempt to retake it. Even if force reasonably appears to be necessary. seek to dispossess another person of the disputed property. therefore.. Difference between laying hands on v. threat of deadly force may provoke actual deadly force. as reasonably necessary. a person's primary source o safe and private habitation has been jeopardized.
Narrow Approach A person is justiﬁed in using deadly force upon another if he reasonably believes that 1. burglary. rape. violence. and 3. Differences 1. In what ways does the D claim that his intoxication affected his culpability? 1. and surprise. involuntary 2. How did D become intoxicated? 1. or prescriptions. or arson" 3. the intruder intends to injure him of another occupant. a person's primary source o safe and private habitation has been jeopardized. Middle Approach A person may use deadly force if he reasonably believes that 1. robbery. deadly force is necessary to repel the intrusion 3. or to commit a felony therein. Rules 1. strict-liability . The fortress has been attacked. 2. Law Enforcement Defenses Intoxication Disturbance of mental or physical capacities resulting from the introduction of any substance into the body. Early Common Law Rule Home-dweller may use deadly force upon another person if he reasonably believes that such force is necessary to prevent an imminent and unlawful entry of his dwelling. no distinguishing between drugs. the other person intends an unlawful and imminent entry of the dwelling 2. voluntary 2. such as murder. What type of offense is the D charged with? 1. right to use force triggered by immediacy of the unlawful entry Immaterial: unlawful purpose of intruder degree to which he constitutes a threat to the physical safety of the occupants 2. Deadly force is impermissible if the occupant knows or should know the intruder only intends to commit a minor battery. the intruder intends to commit a forcible felony therein or to kill or seriously injure an occupant Forcible felony is one "committed by forcible means.no voluntary act) 3. alcohol. unconscious (negates actus reus . such force is necessary to prevent the intrusion. Resident may not use deadly force if hek nows or should know that the intruder's purpose is to commit a forcible felony. affected requisite state of mind (negate mens rea) 2. 1. such as larceny. the other person intends an unlawful and imminent entry of the dwelling 2. Issues to Consider: 1.invaded.
One who acts in a state of unconsciousness brought on by voluntary intoxication may seek to avoid conviction on this ground. Claims of intoxication and mistake-of-fact often overlap. rather it is a failure of proof claim. general intent 3. State may not punish someone for status as an alcoholic. or other foreign substances into the body. if. alcohol. Velez D knowingly smoked pot. Voluntary Intoxication Deﬁnition intoxication is voluntary is the actor is culpable for becoming intoxicated. Voluntary Intoxication: Mens Rea General Voluntary intoxication is not really a defense. it may serve as exculpatory in very limited circumstances Exception 1. he lacked the mental state required in the deﬁnition of the offense. 2. Traditional Common Law Rule: 1. but it was laced with another drug. speciﬁc intent Relationship to Other Defenses 1. Such culpability exists if the person knowingly ingests a substance that he knows or should know can cause him to become intoxicated. unless the substance was a prescribed medication or he was coerced to ingest it. 3. General Intent Crimes . Intoxication defense is recognized when an actor becomes temporarily insane as the result of the intro of drugs. The defenses of diminished capacity and intoxication operate similarly.2. that. as a result of self-induced intoxication. except that the former defense applies when the actor suffers from mental illness rather than intoxication. No Excuse Voluntary intoxication is no excuse for criminal conduct. 3. Drug Addiction An irresistible compulsion to consume intoxicants caused by a psychological or physiological disability does not render the ensuing intoxication involuntary. A person may be acquitted of certain offenses. as a result of the actor's intoxication. Courts will hold a D's actions voluntary even if the substance has an unintended affect on the D People v. though. he did nto harbor the state of mind provided for in the deﬁnition of the offense. Court held that D was voluntarily intoxicated because it was common knowledge that unlawful street drugs do not come with warranties of purity or quality Alcoholism. but can punish for conduct resulting from that status General Rules 1. A person who suffers from long-term intoxication-induced ﬁxed insanity may be acquitted. 2. really.
Voluntary intoxication is not a defense to general intent crimes
2. Speciﬁc Intent Crimes
Voluntary intoxication IS a defense to speciﬁc-intent crimes
Intoxication and Homicide
Intoxication would negate the mens rea for ﬁrst degree murder (no deliberation or premeditation), so it mitigates it to second degree Felony-murder - if D is so intoxicated, cannot form intent necessary to prove felony, would not be guilty of felony-murder
Voluntary Intoxication: Voluntary Act Unconsciousness
D may seek to avoid conviction by asserting that his conduct did not include a voluntary act.
some courts say, no defense other courts allow for speciﬁc intent offenses, not general
D can use unconsciousness or intoxication to prove that there was NO ACT, not just that there was no voluntary act.
Voluntary Intoxication: Insanity 1. Temporary Insanity
Common law does not recognize defense of insanity
any degree of insanity thus produced would be a part of the consequences of such voluntary intoxication.
2. Fixed Insanity
If the unsoundness of mind, although produced by long-term alcohol or drug use, has become "ﬁxed" or "settled", the general, but not universal, rule is that the D may assert a traditional insanity defense.
Defense is usually asserted when the D was not intoxicated at the time of the offense, but it was also applies even if the actor was intoxicated at the time of the crime
Deﬁnition Intoxication is involuntary if the actor is not to blame for becoming intoxicated.
1. if the person is coerced to ingest an intoxication 2. if the person ingests an intoxicant by innocent mistake 3.if the actor becomes unexpectedly intoxicated from a prescribed medication
does not know and has not reason to know that the medication would have an intoxicating effect BUT, if the actor purposely takes more than the prescribed medication, the jury may ﬁnd that the intoxication is involuntary
4. if the intoxication is "pathological
temporary psychotic reaction, often manifested by violence, which is triggered by consumption of alcohol by a person with a pre-disposing mental or physical condition. temporal lobe epilepsy, encephalitis, or metabolic disturbance defense only applies is actor has no reason to know of such a reaction
General Rule A person who is involuntarily intoxicated is entitled to acquittal in all of the circumstances in which voluntary intoxication is a defense.
A person who is involuntarily intoxicated is entitled to acquittal in all of the circumstances in which voluntary intoxication is a defense.
Should also apply to general intent crimes, but there is little case law to afﬁrm this
A person who is involuntarily intoxicated is also excused for his conduct if, as the result of involuntary intoxication, he is "temporarily insane" Involuntary intoxication will not serve as a defense to a strict liability charge
Model Penal Code
Rule Three types of intoxication
1. self-induced 2. pathological 3. intoxication that is not self-induced (involuntary)
1. Any form of intoxication is a defense to criminal conduct if it negates an element of the offense. 2. Pathological intoxication and intoxication that was not self-induced are afﬁrmative defenses, if the intoxication causes the actor to suffer from a mental condition comparable to that which constitutes insanity under the Code. Negation of an Element of an Offense 1. Mental State
Since there are not "general" or "speciﬁc" intent crimes under the Code, a person is not guilty of an offense, regardless of whether it would be characterized as speciﬁc or general intent at common law - if, as the result of intoxication, he lacked the state of mind required in respect to an element of the crime. Exception
A person acts recklessly as deﬁned by the Code if he consciously disregards a substantial and unjustiﬁable risk that the material element of the offense exists or will result from this conduct.. If a person, due to self-induced intoxication is unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial in a prosecution for which recklessness establishes criminal liability. IOW, In a prosecution for recklessness, a voluntarily intoxicated D cannot negate proof of recklessness by introducing evidence of his intoxication-caused lack of awareness of a risk. negligent actor may therefore be convicted of a crime of recklessness, in violation of MPC culpability principles.
2. Voluntary Act
The Code provides that a person is entitled to acquittal if his intoxication negates any element of the offense. Under the Code, a person is not guilty of an offense unless his conduct includes a voluntary act. Conduct during unconsciousness is involuntary, Thus, a person who is unconscious as the result of intoxication, even if the intoxication is self-induced, may raise an involuntariness claim.
HOWEVER, the requisite voluntary act may be found in conduct prior to the unconsciousness
Intoxication as an Afﬁrmative Defense Even if all the elements of a crime are proved, the Code recognizes an afﬁrmative defense based on intoxication if, at the time of his conduct:
Even if all the elements of a crime are proved, the Code recognizes an afﬁrmative defense based on intoxication if, at the time of his conduct:
1. the actor suffered from pathological intoxication or intoxication that was not self-induced; AND 2. the actor's condition qualiﬁes under the ALI test of insanity
Mental Disease of Defect
General Mental illness and insanity are not synonymous - insanity is a legal term, mentally ill is a medical term.
Incorrect to say mental illness is a legal defense
A person can be mentally ill without being insane; insanity, however, presupposes a mental illness Medical Deﬁnition of "Mental Disorder" clinically signiﬁcant behavioral or psychological syndrome or pattern that occurs in an individual and that is associated with present distress or disability or with a signiﬁcantly increased risk of suffering death, pain, or disability, or an important loss of freedom. Syndrome or pattern must not be merely an expectable and culturally sanctioned response to a particular event. Culture-bound - one cannot identify a cluster of symptoms as a disorder without also considering the society in which the behavior pattern arises. Legal Deﬁnition of Mental Disease or Defect Early test, now-defunct, included a deﬁnition: any abnormal condition of the mind which substantially impairs behavior controls.
a disease is a condition that is capable of improving or deteriorating; a defect is a condition in capable of changing, which may be congenital, the result of injury to the brain, or the residual effect of a physical or mental illness.
M'Naghten Test (17 States and Fed Gov apply rule in entirety; 1 state applies ﬁrst prong, 10 states apply second prong) Rule
A person is insane if, at the time of her act, she was laboring under such defect of reason, arising from a disease of the mind, that she:
1. did not know the nature and quality of the act that she was doing; OR 2. if she did know it, she did not know that what she was doing was wrong, i.e. the accused at the time of doing the act did not know the difference between right and wrong.
1. The word "know" used in both prongs of the test may be deﬁned narrowly or broadly.
Narrow: Formal cognitive knowledge can describe what she is doing and can acknowledge the forbidden nature of the act Broad: Affective knowledge can evaluate her conduct in terms of its impact on others and appreciate the total setting in which she acts, i.e. can "internalize the enormity of their criminal acts" and thus "emotionally appreciate its wrongfulness"
she acts, i.e. can "internalize the enormity of their criminal acts" and thus "emotionally appreciate its wrongfulness"
2. The phrase "nature and quality of the act" in the ﬁrst prong is an exceedingly narrow concept. 3. A question exists whether the word "wrong" in the right and wrong prong refers to a legal wrong or moral wrongdoing. Either interpretation can be supported.
Rarely will the distinction matter, however, if D believes God tells him to kill people, he may believe what he is doing is legally wrong, but that it is not morally wrong because God has commanded it. In jurisdictions that apply "moral right-and-wrong" doctrine, the issue is not whether the D personally believed her conduct was morally proper. The question is whether she knowingly violated societal standards of morality. Example: D is sane under this prong if she commits an offense that she knows society will condemn, even if (as a result of mental illness) she is personally convinced her conduct is morally proper.
4. A few jurisdictions that apply the moral right and wrong standard also apply the "deiﬁc decree" doctrine.
Under this principle, a mentally disordered individual who believes that she is acting on the direct command of God (not simply with God's approval) is deemed legally insane. Sometimes this is treated an an exception to the general rule i.e. it applies when a party performs a criminal act, knowing it is morally and legally wrong, but believing because of a mental defect that the act is ordained by God. Other courts believe that the doctrine is not so much an exception as it is an integral factor in assessing a person's cognitive ability to distingiush right from wrong with respect to the act charged.
Irresistible Impulse Test (3 States added prong to M'Naghten) Rule
3 states added a third prong to the M'Naghten Test, which encompasses mental illnesses affecting a volitional capacity. A person is insane if, at the time of the offense:
1. she acted from an irresistible and uncontrollable impulse; 2. she lost the power to choose between the right and wrong, and to avoid doing the act in question, as that her free will has been otherwise destroyed; or 3. the D's will has been otherwise than voluntarily so completely destroyed that her actions are not subject to it, but are beyond her control.
MPC Test (14 states apply) Rule
A person is not responsible for her criminal conduct if, at the time of the conduct, as the result of a mental disease or defect, she lacked the substantial capacity to 1. appreciate the criminality (or wrongfulness) of her conduct; OR 2. to conform her conduct to the requirements of the law.
1. uses term "appreciate" rather than know in order to avoid a narrow interpretation of the M'Naghten-like cognitive prong
the wrongfulness of her conduct. Models "appreciate" on MPC test and modiﬁes both prongs of the test should render this test broader than M'Naghten Diminished Capacity Confusion Misuse by courts to describe two different things. the natural and quality of her conduct.C. unlike prior standards. Test avoids using the word "impulse" in order to sidestep the potential pitfalls arising from using that word 3. as the result of a severe mental disease or defect. D. to mitigate the homicide to manslaughter Mens Rea Defense Testimony that D seeks to introduce speaks to the "question of whether the D in fact possessed a particular mental state [intent to kill. result in his conviction of a less serious crime or degree of crime than original charge 1. . cognitive incapacity must be total 3. both prongs of the test are modiﬁed by "lacks substantial capacity" .2. Like M'Naghten.this avoids criticism that the earlier tests unrealistically required total incapacity Product Test (New Hampshire. Partial Responsibility Form partially excuses or mitigates a D's guilt even if he has the requisite mens rea for the crime only recognized in a few states. Federal Test Rule A person is excused if she proves by clear and convincing evidence that. but rather as evidence to negate an element of the crime charged. neither one adequate Deﬁnition Term used to describe two categories of circumstances in which an actor's abnormal mental condition. requires proof that actor suffers from a severe mental disease or defect 2.) Rule A person should be excused if her unlawful act was the product of a mental disease or defect. intent to have nonconsensual intercourse. or. Noteworthiness 1. and only for a crime of murder. far more often. jury would then determine if D was suffering from mental disease or defect. Mens Rea Form of Diminished Capacity Functions as Failure-of-Proof defense evidence of mental abnormality is NOT offered by the D to partially or fully excuse conduct. whether the disease caused the criminal conduct in a but-for sense. she was unable to appreciate 1. short of insanity.is not designed to defeat a case the State has established. will occasionally exonerate him. and if so. but unlike MPC. at the time of the offense. OR 2. intent to rape] which is an element of the charged offense" Word "Defense" is a legal colloquialism . almost always the mens rea element 2.
it is intended to prove that as a result of his abnormal mental condition. Common distinction drawn between speciﬁc intent and general intent crimes Evidence of abnormal mental conditions may be introduced if it tends to show that the D could not. D is prosecuted for assault with intent to commit rape.would be to acquit them of the crimes charged.is not designed to defeat a case the State has established. he did not form the intent to kill V. if successful.Word "Defense" is a legal colloquialism . D wishes to introduce expert testimony that at the time he killed V he was suffering from a mental illness. is a follower of stronger-willed persons would not be permitted to introduce expert testimony in this regard in an intent-to-kill prosecution. at least if it created reasonable doubt as to the D's mens rea . form a speciﬁc intent speciﬁed in the offense.if believed or. 3rd group bars diminished capacity evidence in prosecution of all offenses. but such evidence is inadmissible in the prosecution of a general-intent crime. but wishes to prove that due to a delusion he believed the woman he was forcibly attacked was his wife. Defense to All Crimes Approach (MPC) 15 states provide that evidence that the D suffered from a mental disease or defect at the time of his conduct is admissible if it is relevant to prove that he lacked a mental state that is an element of the charged offense. he genuinely believed that the female with whom he was having intercourse consented. Limited-Use Approach A few states arbitrarily limit intro of mental-condition evidence to murder prosecutions. In contract. because such testimony. 2. it does not negate state of mind Examples 1. The effect of the evidence . as a consequence. would not negate the required element of intent. a murder D who seeks to show that he is very mildly retarded and. even if believed. Law Overview Unclear in many states Sharply divided regarding extent to which evidence of an abnormal mental condition not amounting to legal insanity may be introduced for the purpose of negating the mens rea of an offense. 3. Although testimony will not show that D was insane at the time of the crime. if it isn't successful. D is charged with ﬁrst-degree murder based on the claim that he intentionally killed V. does not provide any grounds for acquittal not provided in the deﬁnition of the offense not a defense at all. . although they might be guilty of lesser offenses. or did not. but merely a rule of evidence Negates the state of mind required for a particular offense. D is prosecuted for rape and wishes to intro evidence that as a result of mental retardation. Some state (MPC) permit intro of such evidence (when relevant) for purpose of negating the mens rea of any crime Other states limit the admissibility of evidence to some or all speciﬁc-intent crimes.
or from a non-homicide speciﬁc intent crime to a general intent crime (burglary --> criminal trespass Outright acquittal is very rare No Defense Approach Some jurisdictions will allow intro of evidence to prove insanity. D could NOT intro evidence of mental condition to disprove rape because rape is a general-intent crime. Arizona. claim to prove he lacked capacity to form speciﬁc intent to kill. but he is barred from introducing expert testimony regarding an abnormal mental condition . danger of according greater certainty to capacity evidence than experts claim for it Dissent 1. mental disease evidence has the potential to mislead. but would not allow mental disease evidence or capacity evidence in order to disprove mens rea.which he did not culpably contract. or did not. mental disease evidence testimony of the type of mental disease with explanation of what characteristics are of this disease 3. but will not allow same evidence for purpose of DC claims. state has the right to presume people are sane and therefore to place the burden of persuasion on the D to prove insanity introduction of evidence of his mental disease to create reasonable doubt about mens rea would allow D to displace presumption of sanity 2. Interest in barring unreliable evidnce does not extend to per se exlusions that may be reliable in an individual case . form a speciﬁc intent speciﬁed in the offense. capacity evidence expert testimony about D's capacity to form requisite mens rea In Clark v. D will reduce a D's guilt from one degree of murder to a lower degree of criminal homicide. D could introduce evidence to prove he lacked speciﬁc intent to rape V. Yes. although it allows that evidence to show insanity SCOTUS found good reasons for Arizona approach 1. this is constitutional (Clark v.for the same purpose. thus culpable.could not. intoxication in order to show that he lacked the speciﬁc intent to commit an offense. the courts allowed observational evidence. Arizona) SCOTUS introduced idea of 3 types of mens rea evidence that might be proffered 1. Functions as partial defense because there is almost always a crime for which a person with DC can be convicted. but such evidence is inadmissible in the prosecution of a general-intent crime. and which could also include "testimony that an expert witness might give about D's tendency to think in a certain way and his behavioral characteristics 2. observational evidence testimony from lay people who could describe D's actions and words. Rule leads to anomaly D may intro evidence of self-induced. even if he succeeds in proving that he lacked a speciﬁc intent. D could raise D.C.
D irrationally believed that his wife was being unfaithful to him and he became enraged when his brother-in-law and father sought to counsel him about his suspicions. based on D's psychological characteristics. jury confusion .we always trust juror to sort through complex facts DC Partial Responsibility Defense Rule Largely Discredited California Approach person who does not meet the state's deﬁnition of insanity. Interest in barring unreliable evidnce does not extend to per se exlusions that may be reliable in an individual case 2. lacked this awareness. codiﬁes and expands on the common law "sudden heat of passion" doctrine 2. Difﬁcult to apply because the concept is subjective . . of murder. but does not require. a person must be aware of his obligation to act within the law. mini-insanity defense CA added a volitional feature to malice doctrine . The issue is whether there was a reasonable explanation or excuse. permits.malice is absent if. Dumlao: D introduced testimony at his trial that he suffered from "paranoid personality disorder" a condition that caused him to experience "unwarranted suspiciousness" of other people's actions and to be hypersensitive to criticism. though sane. Example: State v. than a killer who acts with a normal state of mind. If D. Concluded jury should consider "the subjective. CA says ﬁrst degree murder must include "malice aforethought". To act with malice aforethought. D took a life while in the preceding emotional state. and therefore less deserving of punishment. the D is "unaware of or unable to act in accordance with the law. yet EMED standard is partially objective "reasonable explanation of excuse language" Issue in partial responsibility cases is not WHETHER there is a reasonable explanation or excuse for the D's homicidal act. is less blameworthy. The issue is not whether there was a reasonable explanation or excuses for the homicide or for D's paranoid condition. internal situation in which the D found himself and the external circumstances as he perceived them at the time (however inaccurate that may be).1. and assess from that standpoint whether the explanation for his emotional disturbance was reasonable. he did not act with malice aforethought and therefore lacked the required mens rea.the D is not like an ordinary person because he suffers from an abnormal mental condition. but rather whether there is a reasonable explanation or excuse for the D's EMED that caused him to take a life. Evidence was sufﬁcient to justify an instruction on EMED manslaughter. courts in states that adopt the EMED language to recognize a partial responsibility defense. as the result of a mental abnormality. As a result. but who suffers from mental abnormality. 2 purposes 1." EMED determined from the viewpoint of a person in the actor's situation under the circumstances as he believes them to be. Model Penal Code Approach A homicide that would otherwise constitute murder is manslaughter if it is committed as the result of "extreme mental or emotional disturbance for which there is a reasonable explanation or excuse. for his emotional disturbance at the time of the crime.
and mitigate the offense when justice seems to require it .when the D's choice-making capacities are undermined by a mental disease or defect. mental disease can be so severe that it is fair to excuse the D Professor Stephen Morse "Criminal law does not require people to live up to high moral code. Actor conceives the idea of committing crime 2.The issue is not whether there was a reasonable explanation or excuses for the homicide or for D's paranoid condition. though abnormal. even if a person has a mental health problem. The issue is whether there was a reasonable explanation or excuse. . kill. Actor fully forms the intention to go forward mens rea is established 4. MPC warns: 1. 2. Actor prepares to commit the crime (by obtaining instruments necessary for commission) actus reus begins 5.his mental abnormality . but fails to attain criminal goal. Actor completes actions We do not punish people during the ﬁrst 3 stages Inchoate Crimes Complete: actor performs all acts that she set out to do. fact that someone suffers from mental disorder does not preclude a ﬁnding that he is morally depraved.aggravates his dangerousness Critics of psychiatry troubled by the defense. Actor evaluates the idea. the very factor that mitigates an actor's blameworthiness . surely cases will exist where D's mental condition. should be regarded as having no bearing on his liability for the intentional homicide." But. it is not difﬁcult for him to live up to society's laws. it is harder for some people to live up to society's standards then others may be appropriate to investigate an actor's mental condition with great care. Infancy Attempt Overview 6 Stage Process of Intentional Commission of Crime 1. or commit other serious offenses" Therefore. Revised position later to say "excuse is a moral imperative for a just criminal law that attempts never to punish D more than they deserve. for his emotional disturbance at the time of the crime. rape. but agreement exists that at some gross level. based on D's psychological characteristics. in order to determine whether she should commit the crime 3. Actor begins commission of offense 6. Indeed. Controversy Regarding the Defense American Law Institute brings formal guilt more closely into line with moral blameworthiness but only at the cost of driving a wedge between dangerousness and social control. It just requires they not rob.
Attempt to commit a less serious felony is usually punished at one-half of the maximum allowed for the target crime Relationship of an Attempt to Target Offense Most jurisdictions say "a person is guilty of a criminal attempt when. Attempt Early common law deﬁned assault as "attempted battery" Today. proof of the commission of the target offense establishes the attempt. assault with intent to kill 2." with crimes of intent. D intentionally places V in apprehension of an imminent battery Simple assault is misdemeanor Aggravated assaults are felonies 1. A wrongdoer may commit the target offense. she may not be convicted of both it and the criminal attempt. a jury may instead return a guilty verdict for a lesser offense of an attempt to commit the substantive crime 2. with intent to commit a crime. D attempts to batter V 2. more than mere preparation Any conduct that reaches the 5th stage of criminality speciﬁc intent crime Punishment Attempt to commit felony is graded as felony.Incomplete: actor does some of the acts necessary to achieve criminal goal. assault is generally proved if: 1. unsuccessfully attempt to commit it. assault with intent to rape . but she can never do both Assault v. but quits or is prevented from continuing General Principles Deﬁnition occurs when a person. in every case where an attempt is charged. Attempt MERGES into substantive offense some statutes provide that failure to consummate the target offense is an essential element of attempt this means that a criminal attempt and a substantive offense are mutually exclusive crimes. the person engages in conduct which constitutes a substantial step toward the commission of that crime where or not his intention is accomplished. or perhaps. HOWEVER if a person commits the target offense. in a prosecution for a crime of intent. (Almost always) attempt to commit a capital crime or an offense for which the penalty is life in prison is set at a speciﬁc term of years in prison. the successful commission of a target crime logically includes an attempt to commit it 1. performs "some act done towards carrying out the intent" Must be substantial step. with the intent to commit an offense.
Most courts say no fear "a perversion of the law of attempt. Recognition of the substantive crime of burglary allows a police ofﬁcer who observe's D's conduct to arrest her as she enters the house while she still is within practical reach of the ofﬁcer. If D is near enough to victim that she can immediately batter her. even though they are considered regular common law and statutory offenses Possession of burglars' tools. toward the commission of any offense" Assault is a criminal offense . Assault Law 1. (under some statutes that deﬁne assault as "unlawful attempt coupled with present ability to commit a battery). Subjectivism and Objectivism Punishing Attempts Rationale Utilitarian . D would not be guilty of assault if she ﬁred an unloaded weapon at V. child luring Larceny . 2." fear "double inchoate crimes" could lead to punishment of innocent. greater degree of proximity needed than is required in non-assault attempts 2.Criminal Attempt law does not apply to assaults. Also allows for attempted burglary. 2. albeit suspicious. Some courts say yes. fully consummated burglary is inchoate to a theft of to some other crime intended to be committed on the inside of the dwelling Rationale 1.an attempted battery Can you have attempted assault? An attempted attempted battery? A substantial step beyond mere preparation toward committing a substantial step beyond mere preparation toward committing battery? 1. Attempted Assault Criminal Attempt is "substantial step. conduct Inchoate Crimes in Disguise Some crimes are inchoate offenses in disguise. stalking. but fails to do so."taking and carrying away the personal property of another with the intent to permanently deprive the other of the property" Burglary . she pulls the trigger of an unloaded gun. so that ofﬁcer can arrest D even before D enters the home. But."breaking and entering the dwelling house of another at night with the intent to commit a felony therein" thus. doctrine of impossibility operates differently Ex. it should be possible to convict a person of attempted assault if she endeavors to place herself in such a position. beyond mere preparation. D may be convicted of attempted murder if. with the intention of killing V.
HOWEVER. she is NOT guilty of ATTEMPTED murder (although she would be guilty of statutory offense such as reckless endangerment) WHY? 1.Retributive Less or Equal Punishment Overview Utilitarian Retributive Mens Rea General Rule 1.doesn't make sense to punish unintentional attempts Advocates for Change: illogical to require proof of intent for successful prosecution of an attempt to commit a crime when no such degree of proof is necessary for successful prosecution of the completed crime. so she may be convicted of murder if she unintentionally kills V. actor must intentionally commit the acts that constitute the actus reus of an attempt intentionally perform acts that bring her in proximity to commission of a substantive offense 2. as she lacked the speciﬁc intent to kill. She purposefully aimed and ﬁred the gun . She LACKED the speciﬁc intent to kill anyone in the room. 2. if V does not die from the attack. Defend Status Quo: One who intends to commit an offense and fails remains a danger because they have unspent intent. though unintentional. if someone is killed. D's state of mind constitutes malice. she may be convicted of murder . is malicious because it evinces a reckless disregard for the value of human life. Rationale of Intent Requirement Attempt means "to try" .intentionally performed acts that brought her close to taking human life 2. HOWEVER if D's reckless act does not kill anyone.killing. Attempted Felony-Murder Almost every state (2 exceptions) have held that Attempted felony murder is NOT a cognizable offense. If D intends to severely injure V. D is not guilty of attempted murder. . actor must perform these acts with the speciﬁc intention of committing the target crime NOTE: Attempt is a speciﬁc intent offense. even if the target offense is a general-intent crime "Result Crimes" General Rule Offense deﬁned in terms of a prohibited result RULE: person is not guilty of an attempt unless her actions in furtherance of the prohibited result are committed with the speciﬁc purpose of causing the unlawful result Prosecutor of an attempt prosecution sometimes required to prove actor possessed a higher degree of culpability than is required to commit the target offense EXAMPLES 1. One who recklessly or negligently acts is less apt to represent an ongoing threat. D blindfolds herself and ﬁres a loaded pistol into a room that she knows is occupied.
she should be able to be charged with attempted reckless endangerment. the actor may be convicted of attempted voluntary manslaughter. Attempted Manslaughter Person in emotional state attempts to kill provoker. but fails. or recklessness.. reckless as to V's age for statutory rape conviction versus mistake of fact No special mens rea requirement regarding attendant circumstances in attempt prosecutions. V is actually 16. Ex. D's mistake of fact. Arkansas?: Rapist ﬁred weapon but struck nobody. she could be convicted of reckless endangerment.offense of attempted murder requires a speciﬁc intent to kill D's intent to commit a felony does not substitute for the intent to kill If a person by committing a felony acts recklessly thereby. blindfolds herself. D would also be guilty of attempted statutory rape: The target offense is one of strict liability with regard to the girl's age. Person CANNOT be convicted of attempted INVOLUNTARY manslaughter when the latter offense is based on a mens rea of criminal negligence. Attendant Circumstances Ordinary speciﬁc intent requirement of attempt should not apply to attendant circumstances Some add that person should be convicted of criminal attempt if she is reckless with regard to any attendant circumstance ex. sufﬁcient that actor is culpable regarding the attendant circumstances as is required for the completed offense. cause the death of another. has sexual intercourse with her. Actus Reus Policy Context . even if reasonable. so the same analysis would apply to the attempt. abets an intentional act that is not an essential element of the felony and that could. it is illogical to say that a "D intended to kill the victim by being reckless" Exceptions: Florida: Attempted felony murder occurs when one commits. believing that V is 18 years old. aids. under legal age of consent for intercourse. Example: D. "Conduct Crimes" Crimes whose actus reus is deﬁned in terms of conduct rather than injurious results. If D drives her car blindfolded. will not excuse him in most jurisdictions. turns on the ignition. but does not. and is arrested at that moment. the law should not artiﬁcially require culpability greater than is necessary to commit he target offense. or to cause the result. If D enters her car. that is prohibited by the statute deﬁning the substantive crime. As long as the actor has the speciﬁc intent to engage in the conduct. as a practical joke. (most statutory rape laws are strict liability) If D is arrested immediately before intercourse. Intentionally commits the actus reus of the attempt and has the speciﬁc intent to engage in the prohibited conduct.
the seriousness of the threatened harm. i. i.may improperly or needlessly be arrested Function of debate between subjectivists and objectivists Subjectivists favor actus reus test of attempt that allows for early attachment of guilt ﬂows from underlying premise of doctrine: proof of actor's dangerousness is evidenced by her mens rea.Very murky . at least in the form of societal apprehension subjectivist approach endangers civil liberties The Tests General 2 categories: How much remains to be done? How much has already been done? Factors that come into play: 1. prepratation proximate v. so any action that might corroborate this mens rea should sufﬁce for criminal attempt waiting will frustrate crime prevention Objectivists believe actus reus has independent signiﬁcance don't believe society should use its coercive power against inchoate crimes unless the actor has caused social harm..when do acts constitute an attempt? perpetration v. the strength of the evidence of the actor's mens rea.e. the less proximate the acts need to be to consummation of the offense Use Most states rarely adopt a single test as exclusive basis for determining when attempt has occurred Name of tests and their descriptions vary by jurisdictions "Last Act" Rule Criminal attempt only occurred when the person performed all of the acts that she believed were necessary to commit the target offense Example Attempted-murder-by-shooting does not occur until D pulls the trigger of the gun Advantages bright-line of demarcation .. 2. the more clearly that intent to commit the offense is proven.e. Fear that innocent persons as well as those with still barely formed criminal intentions .help prevent crimes "Attempt occurs when acts of preparation coupled with intent have reached a point at which they pose a danger to the public so as to be worthy of law's notice" 2.the further back int he series of acts leading up to the consummated crime should the criminal law reach in holding the D guilty for an attempt 3.who might turn back from criminal activity . remote Competing policy considerations 1. the more serious the crime attempted. whether the act in question appears to be dangerously close to causing tangible harm so that police intervention cannot realistically be delayed. Desire to ease burden on police .
is not guilty of an attempt. "Indispensable Element" Rule In determining proximity. "emphasize any indispensable aspect of the criminal endeavor over which the actor has not yet acquired control. Example D would be guilty of attempted robbery if."so near to the result that the danger of success is very great" 3 Factors 1. with intent to possess cocaine. Attempt does NOT occur if two men. tells the courier that she will buy the drugs once she obtains sufﬁcient funds. whom they expected would be withdrawing a large sum of money from the bank. if not extrinsically hindered or frustrated by extraneous circumstances" Attempt does not arise unless actor has it within her power to complete the crime almost immediately. "Dangerous Proximity" Rule Person is guilty of an attempt when her conduct is in dangerous proximity to success . convince him to go to the bank and withdraw some of his cash. in that 'it must approach sufﬁciently near to it to stand either as the ﬁrst or some subsequent step in a direct movement towards the commission of the offense after the preparations are made. but who is arrested immediately afterward.four armed men drove around looking for V. it must be "proximate" to the completed crime. but the culprits are arrested before the victim withdraws the cash and before they can make the overtures to secure the money from him. Rizzo . D who. intending to trick a victim out of his money. orders contraband from supplier. People v. An offense that requires action from an innocent person cannot be attempted until such action is completed. with intent to possess cocaine. They entered various buildings looking for their victim. degree of apprehension felt Example D who. or apparently result in the actual commission of the crime it was designed to effect. nearness of the dangers 2. Suspicious. but rejects them on quality grounds is guilty of attempted possession. two police ofﬁcers placed the men under surveillance. examines the goods. she has her victim in view. Finally suspects were arrested when one of them entered another building. meets a courier at home. and schedules a later meeting to consummate the sale. absent external factors. Example . V was not present where the arrest occurred.Disadvantages police stymied by rule virtually impossible to prevent commission of a substantive crime "Physical Proximity" Rule While an actor's conduct need not reach the last act. "Act must go so far that it woudl result. weapon in hand. such as the intervention of the police. greatness of the harm 3. and can immediately proceed to rob her.
whom M accused of harassing his wife. is NOT GUILTY of attempted fraudulent acquisition of a controlled substances because there existed reasonable doubt whether she would have returned twice more (once to get the reﬁll to which she was entitled. no one could say with certainty whether he had come into the ﬁeld to carry out his threat to kill V or merely to demand his arrest by C. and who brought the prescription to the pharmacy to ﬁll for the ﬁrst time. M came armed with a riﬂe to a ﬁeld where C. C took possession of M's riﬂe without resistance.D. At some point. but did not aim it. standing approximately 30 yards away. unambiguously manifests her criminal intent. It is as if the jury observed the actor's conduct in video form with the sound muted (so as not to hear the actor's potentially incriminating remarks) and sought to decide from the conduct alone whether the accused was attempting to commit the offense for which she was prosecuted Example M threatened to kill V. a gun for a murder . were working. Disadvantages Arbitrary presence or absence of an indispensable element often says little regarding the actor's culpability. and V. M walked in the direction of C and V. "Unequivocality" (Res Ipsa Test) Rule An act does not constitute an attempt until it ceases to be equivocal. the local constable. or the degree to which prior conduct may have disturbed the public's repose. in the ordinary course of events. At attempt occurs when a person's conduct. stopped. V ﬂed at a right angle from M's line of approach. and resumed his approach. Concerns as to how jury will determine when an ordinary would-be criminal would or would not desist. without interruption from external sources. and once more to obtain reﬁll to which she was NOT entitled) Disadvantages Factﬁnders are usually called upon to determine whether the D reached the point of not return for an ordinary person in the D's shoes.e. the ﬁrmness of her intentions. "Probable Desistance" Rule Centers on how far the D has already proceeded D has committed an attempt when. "the actor has reached a point where it was unlikely that he would have voluntarily desisted from his effort to commit the crime. The court held that M was not guilty of attempted murder because "up until the moment the gun was taken from the D.has not yet crossed the line from preparation to perpetration. loaded his riﬂe. who does not yet possess a necessary instrumentality .i. either before or after M loaded his weapon. Later that day. standing alone. ." Example A man who incudced a youth to come to his house for improper sexual relations and met the intended victim as the latter exited a taxi is guilty of attempted lewd and lascivious acts on a minor A woman who altered a prescription form so that she could obtain 11 reﬁlls instead of the "1" speciﬁed by the doctor.
actor has demonstrated dangerousness manifested criminality No good reason exists to recognize a defense merely because a person. actor was not physically capable of committing the offense 4. does not successfully commit the crime.when you light a match at a haystack. the offense would have been committed Policy lawmakers unsympathetic to claims of factual impossibility. and has done everything in their power to commit the crime. Examples 1. ISSUE: Whether a person should be convicted for attempt that cannot succeed? General Rule Legal impossibility is a defense Factual impossibility is NOT a defense Factual Impossibility General Exists when a person's intended end constitutes a crime. but she fails to consummate the offense because of an attendant circumstance unknown to her or beyond her control. Standing outside V's house. Target offense was not committed because 1. but the desired outcome is predestined to fail . Advantage in harmony with objectivist goal of reserving criminal liability for those whose conduct manifests criminality Disadvantage Impractical . she ﬁres a gun at the bed in which she believes V is sleeping. pickpocket putting her hand in the victim's empty pocket 2. you could be intending to burn the haystack or intending to light your cigarette . for some reason unrelated to her culpability. it was impossible for actor to succeed in consummating the crime. V is not killed because she is not at home. abortionist beginning the surgical procedure on a nonpregnant woman 3.one could say with certainty whether he had come into the ﬁeld to carry out his threat to kill V or merely to demand his arrest by C. Defense: Impossibility The Issue D wants to kill V. Is D guilty of attempted murder. even though it was impossible for D to kill V under these circumstances? Actor has the required mens rea. victim was not present 3. actor chose the wrong victim 2.for one reason to another.later acts may introduce new ambiguity. impotent male trying to have nonconsensual sexual intercourse "Inherent Factual Impossibility" . inappropriate means were used to commit the crime Had the circumstances existed as the actor believed them to be.
50 because he tampered with a legally immaterial part of the check. Actor's mistaken belief that she is committing Crime X does not maker guilty of attempted violation of Crime X. recognized in at least one state Examples voodoo doctor attempting murder attempt to sink a ship with a popgun Policy Should law recognize doctrine? Objectivist: If conduct is harmless and would appear so to a person of normal understanding . but the commission of the offense is impossible due to a factual mistake (and not simply a misunderstanding of the law) regarding the legal status of some attendant circumstance that constitutes an element of the charged offense Actor's impossibility claims includes both factual and legal aspects to it Examples .the idea that we shouldn't punish people for conduct that does constitute the charged offense at the time of the actiom Hybrid Legal Impossibility General Exists if the actor's goal is illegal.applies if the method to accomplish the crime was one that a "reasonable person would view as completely inappropriate to the objectives sought" may be a defense. on the issue of dangerousness. Jury could not convict W of forgery. believe that their conduct constitute a crime "We cannot punish people under laws that are purely the ﬁgments of their guilty imaginations Example W cannot be convicted of forgery upon adding a 1 to a check made out to him in the sum of $2. Therefore.50 so that he could receive $12. no societal apprehension will occur. one who is so far out of touch with reality that they may later commit some other irrational and dangerous act or such a person may come upon a more sensible way to accomplish criminal task Legal Impossibility General courts have failed to distinguish between the two kinds may not be a valid distinction Pure Legal Impossibility Arises when the law does not proscribe the goal that the D sought to achieve person performs a legal act with a guilty mind. punishment is unjustiﬁed Subjectivist Actor is no less morally blameworthy because she has chosen an inherently impossible way to consummate the offense. or even attempted forgery. even if she might be guilty of Crime Y Distinction Pure Legal Impossibility may be properly described as the principle of LEGALITY .
uncle lives. he would be guilty of homicide" Something is amiss when semantics alone determines whether a defense will be recognized Modern Approach: Abolition of Defense Some jurisdictions have abolished hybrid legal impossibility on subjectivist ground that actor's culpability has been plainly manifested Objectivists are concerned then that we are punishing people purely for thoughts since acts appear innocuous. Conviction may be obtained of an entirely innocent person or one whose "guilt" is made up of little more than a passing guilty thought Defense: Abandonment Most believe abandonment is not a common law defense to attempt. feels remorseful. there exists a signiﬁcant risk of enforcement error or abuse. .my client cannot be convicted of homicide because shooting a corpse can never be consider homicide as a matter of law.D receives UNSTOLEN property believing that it was stolen D tries to pick the pocket of a stone image of a human D offers a bribe to a "juror" who is not a juror D tries to hunt deer out of season by shooting a stuffed animal D shoots a corpse believing it is alive D shoots at a tree stump believing that it is human D send pornographic material to an adult believing she is a minor In each example. but those facts relate to the "legal status" of the D's conduct A person cannot be guilty of receiving stolen property unless the property is in fact stolen Thus. Other lawyer can claim "legal impossibility" ."If factual circumstances had been as D believed them to be. harmless. any case of hybrid legal impossibility may reasonably be characterized as a factual impossibility Problem In situation where D shoots at corpse. it applies ONLY if D voluntarily and completely renounces his criminal purpose Voluntary = result of repentance or a genuine change of heart Cannot be voluntary if motivated by unexpected resistance. rushes uncle to hospital. and do not create societal apprehension Objectivists also believe that when conduct is objectively innocent.also has gained support Example X stabs uncle in order to murder. D was mistaken about a fact. X's abandonment is not a defense. and many courts continue to decline to recognzie the defense If it is recognized. absence of an instrumentality essential to completion. one lawyer can claim "Factual Impossibility . or some other circumstance that increases arrest or unsuccessfulness of attempt Complete = actor cannot merely postpone the criminal endeavor until a better opportunity presents itself Idea that person many not claim abandonment as a defense once last act necessary to perform the act has been committed .
If the case involves a complete attempt. an actor demonstrates that she possesses a less dangerous character than an ordinary attempter Model Penal Code General "The proper focus of attention is the actor's disposition. conduct constituting a substantial step toward the commission of the target offense Subsection (1) A person is guilty of an attempt to commit a crime if. recognizes abandonment) and the punishment imposed are similarly motivated by such goals Section 5." MPC approach to inchoate offenses in subjectivist nearly throughout. By voluntarily and completely abandoning the offense. he: a. is the target offense a "result" crime or a "conduct" crime? 1(a) applies to completed conduct crimes 1(b) applies to completed results crimes 1(c) applies to incomplete attempts 2 applies to incomplete attempts and the "substantial step" element Mens Rea A person is not guilty of a criminal attempt unless it was her purpose (her conscious objective) to engage in the conduct or to cause the result that would constitute the substantive offense Two exception to the requirement of purpose: . Doe the case involve a complete or incomplete attempt? 2." Treatment of defenses (abolishes defense of hybrid. or c.01 had huge impact on American courts. is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime Analyzing Subsection (1) Ask and answer questions: 1. when causing a particular result is an element of the crime. The MPC provisions are accordingly drafted with this in mind. Defense encourages desistance by the attempter 2. acting with the kind of culpability otherwise required for commission of the crime.Jurisdictions that recognize the defense do so on subjectivist grounds. or b. purposely does or omits to do anything that. does or omits to do anything with the purpose of causing or with the belief that it will cause such result without further conduct on his party. 1. most courts apply its doctrine Criminal Attempt Elements of the Offense 1. Deﬁnes criminal attempt in a manner that "makes amenable to the correct process those person who have manifested a propensity to engage in dangerous criminal activity. under the circumstances as he believes them to be. the purpose to commit the target offense 2. purposely engages in conduct that would constitute the crime if the attendant circumstances were as he believes them to be.
but she would also be guilty of attempted murder of the other passengers in the airplane if she believed that they would die in the bombing. D may be convicted of statutory rape although he reasonably believed that she was old enough to consent.1. but not if he was negligent or innocent as to the girls' age. must add signiﬁcantly to other proof of her criminal intent. indicates the conduct is not a substantial step unless it strongly corroborates the D's criminal purpose meant to reduce the risk of conviction of innocent persons incorporates common law unequivocality test does not require that D's conduct by itself manifest the criminal intent The actor's conduct. even if it was not her conscious object to cause it. because it was D's conscious objective to take V's life. 1(b) and 1(c) implicitly provide that a person is guilty of an attempt to cause a criminal result if she BELIEVES that the result will occur. The premise of the Code is that one who engages in such purposive conduct is sufﬁciently dangerous to justify state intervention. then he may also be convicted of attempted stattory rape although he lacked a culpable mental state as to this attendant circumstance.01(1)(c) provides that. provides a list of recurrent factual circumstances in which an actor's conduct. considered in light of all the circumstances. The "substantial step" standard is intended to "broaden the scope of attempt liability" Substantial Step 1.01(1) "acting with the kind of culpability otherwise required for the commission of the crime" means that the mens rea of "purpose" or "belief" does not necessarily encompass the attendant circumstances of the crime. Actus Reus General Shifts focus to what remains to be done 5. her husband. and the bomb fails to go off or is defused. it is sufﬁcient that the actor possessed the degree of culpability required to commit the target offense." jury as factﬁnder is entitled to evaluate whether the D has taken a substantial step . Prefatory phrase in 5. For attendant circumstance elements. If the material element of the girls' age is one of strict liability. 2. to be guilty of an offense. such as a confession or other incriminating evidence 2. Example: If D plants a bomb on an airplane in order to kill V. even if she is not yet close to consummation of the offense. an actor must have done or omitted to do something that constitutes a "substantial step" in a course of conduct planned to culminate in his commission of the crime. Example If D would be guilty of statutory rape on proof that he was reckless as to the girls' age (the attendant circumstance) then he may be convicted of attempted statutory rape if he was reckless. Common law is uncertain on this issue. she is guilty of attempted murder of V. if strongly corroborative of her criminal purpose. Common law outcome in this example is uncertain. shall not be held insufﬁcient as a matter of law.
her conduct manifests a complete and voluntary renunciation of her criminal purpose. but who fails to consummate it because of a circumstance of which the person is unaware is as dangerous and culpable as one who successfully commits the crime or who does not commit it because of police intervention. not present or apparent at the inception of the actor's course of conduct. Pure Legal Impossibility "It is of course necessary that the result desired or intended by the actor constitutes a crime. conviction may not be overturned on idea that conduct was "insubstantial" Attempt to Aid A person who attempts to aid in the commission of an offense is as dangerous as one who successfully aids in its commission or attempted commission. and 2. that increase the probability of detection or apprehension or that make more difﬁcult the accomplishment of the criminal purpose" Actor is not entitled to defense if she desists from a crime because she is aware that she is being observed. she would have been guilty of the offense Completed Attempt Distinction Corroboration of the actor's criminal purpose not required Criticism Objectivists concerned that some impossibility cases involve objectively innocuous conduct. she abandons her efforts to commit the crime or prevents it from being committed. the purpose of her conduct was to aid another in the commission of the offense 2.01 "If the attendant circumstances were as s(he) believes them to be." Renunciation (Abandonment) Code recognizes afﬁrmative defense of "renunciation of criminal purpose" A person is not guilty of an attempt if 1. or because of the victim's resistance. Defenses (needs additions from Dressler) Impossibility Hybrid Legal Impossibility Conforms with subjective principles One who intends to commit a crime. such assistance would have made her an accomplice to the commission of the crime under the Code's complicity statute if the offense had been committed or attempted. Renunciation not complete if it is wholly or partially motivated by decision to postpone criminal activity until a more advantageous time or transfer the criminal effort to another victim Renunciation is not voluntary if it is partially or wholly motivated by "circumstances. A person may be convicted of a criminal attempt although a crime was neither committed nor attempted by another if: 1.If jury ﬁnds that it was substantial and convicts. 5. No mitigation of the danger of convicting an innocent person." Had the circumstances been as she believed them to be. Grading Offenses General .
the attempt will constitute a felony of the second degree and the max penalty is ten years in prison. the act amy be trivial and wholly prepatory to the commission of the target offense. Model Penal Code 5. MPC Grades a conspiracy to commit any crime other than a felony of the ﬁrst degree at the same level as the object of the conspiracy.Crimes of attempt. and conspiracy are offenses of the same grade and degree as the offense attempted. or to accomplish a legal act by unlawful means.even when an overt act in furtherance of the conspiracy is statutorily required. or that is the object of the conspiracy. and conspiracy to commit misdemeanor is punished as misdemeanor. Highly inchoate nature 3. conspiracy to commit a felony is punished less severely than the target offense. If it is a conspiracy for multiple offenses. graded on the . solicited.sinking battleship with pop gun Conspiracy Both an inchoate offense and a complicity doctrine (basis for holding a person accountable for the consummated offenses of another) Common Law agreement between two or more persons to commit a criminal act or series of criminal acts. or (b) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime Criticism 1. or to impose a sentence for a crime of a lower degree than is otherwise allowed.if you attempt one of these crimes. No conduct in furtherance of the conspiracy is required . Crime is always "predominantly mental in composition" because it consists of a meeting of the minds Punishment Common Law In many states.03(1) A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he: (a) agrees with such other person or persons that they or one of more of them will engage in conduct that constitutes such crime or attempt or solicitation to commit such crime. Provides ﬂexibility to a judge in the rare case of an inherently impossible attempt . solicitation. Special Mitigation MPC grants a trial judge that authority to dismiss a prosecution of an inchoate offense. Vagueness 2. conspiracy to commit felony is punished as felony. In most states. if the actor's conduct was so inherently unlikely to result in a crime that neither she nor her conduct represent a danger to society justifying her convcition and punishment at ordinary levels. EXCEPTION felonies of the ﬁrst degree crimes that carry a maximum penalty of life imprisonment .
"there must be present on the part of each conspirator communication with a mind and will outside herself" conspiracy is externalized . mutual goal An express agreement is not necessary. Conspiracy can exists even if a conspirator does not agree to commit or facilitate each and every part of the substantive offense.Grades a conspiracy to commit any crime other than a felony of the ﬁrst degree at the same level as the object of the conspiracy. Common.shared intent. or immoral. How do you prove? "in their zeal to emphasize that the agreement need not be proved directly. If it is a conspiracy for multiple offenses. some verbal exchange) is not required Can exist although not all of the parties to it have knowledge of every details of the arrangement. graded on the most serious one.can merely be corrupt. but misleading use of the word "conspiracy" is the group itself that intends to commit the unlawful acts. a court is somewhat less likely to ﬁnd an agreement absent more direct evidence Distinguishing the Agreement from the Group that Agrees Conspiracy describes the agreement that constitutes the offense for which the parties may be punished. fraudulent. Object of the Agreement must be "to do either an unlawful act or a lawful act by criminal or unlawful means" contemplated act as the basis of the agreement need not be criminal . dishonest. the courts sometimes neglect to say that it need be proved at all" May be inferred from a "development and a collocation of circumstances" Crime committed as the result of a prior agreement is apt to look choreographed when the choreography is missing. as long as each party is aware of its essential nature. unless the prosecution proves that the conspiratorial agreement involved the commission of additional offenses not yet committed or attempted The Agreement Conspiracy is the agreement to commit an unlawful act or series of such acts. physical act of communication of an agreement (nod of head. criticism regarding principle of legality unfair to surprise people by punishing the agreement to commit a noncriminal act Overt Act . When the Target Crime is Committed Common Law Offense of conspiracy DOES NOT merge into the attempted or completed offense that was the object of the conspiracy. MPC person may not be convicted and punished for both conspiracy and the the object of the conspiracy or an attempt to commit the target offense.
intend to agree.Common law conspiracy is complete upon formation of the unlawful agreement No act in furtherance of the conspiracy need to be proved Many statutes diverge from this common law and requires an allegation and proof that overt act was committed in furtherance of the conspiracy Act need no constitute attempt doesn't matter how trivial doesn't need to be illegal overt act by ANY party is enough to convict EVERY party including those who may have joined the conspiracy AFTER the act was committed Model Penal Code 5.knows that result will occur from her conduct Case law divided as to whether purpose or knowledge is required to prove intent purpose may be inferred: knowledge of customer's plans stake in the outcome grossly disproportionate share of D's business with X providing goods or services for which there is no lawful use Mens Rea and Attendant Circumstances Speciﬁc intent element applies to the proscribed conduct or results of conduct that are the object of the agreement .03(1) Person is guilty of conspiracy if she agrees to: 1. commit an offense 2. Culpability required for conviction of conspiracy at times must be greater than is required for conviction of the object of the agreement Special Issues in Mens Rea Purpose v. solicit another to commit an offense 4. intend that the object of their agreement be achieved. and 2. Knowledge and the Meaning of Intent Two different mental states Purpose .conscious object to cause the result Knowledge . attempt to commit an offense 3. aid another person in the planning or commission of the offense Object of the Agreement Object of the agreement must be criminal Overt Act May not be convicted of conspiracy to commit a misdemeanor or felony of the third degree unless she or a fellow conspirator performed an overt act in furtherance of the conspiracy No overt act required for felonies of the ﬁrst or second degree Mens Rea Speciﬁc intent crime Does not occur unless two or more persons: 1.
even if such purpose is not an element of the target offense. Malum in se offenses requires parties have sufﬁcient knowledge of the relevant facts that they can apprecaite that their conduct is wrongful Malum prohibitum Corrupt-motive doctrine serves as an exception to the usual rule that ignorance of the law is no excuse If D1 and D2 agreed to do X. regardless of the jury's reasons for the acquittal . the parties lack a corrupt motive Model Penal Code Mens Rea Agreement must be made "with the purpose of promoting or facilitating" the commission of the substantive offense. conspiracy does not exist if a provide of goods or services is aware of. intent to commit substantive offense). but fails to share. Acquittal of one alleged conspirator traditionally requires the discharge of the remaining D. if any. they cannot be convicted of conspiracy to commit X if they did nto realize that X was illegal. In absence of knowledge of the law. or lacks the capacity to from the agreement due to mental illness. THUS. whether the crime of conspiracy may require a higher level of culpability regarding an attendant circumstance than is embodied in the underlying offense Corrupt Motive Doctrine Applicable to some jurisdictions In addition to the usual mens rea requirements for conspiracy (intent to agree. is required regarding attendant circumstances Plurality Requirement Common Law "It is impossible for a man to conspire with himself" Two persons must possess the requisite mens rea for conspiracy BILATERAL CONCEPT no common law conspiracy if one of the parties lacks the speciﬁc intent to commit the substantive offense EXAMPLE No conspiracy conviction is possible (though perhaps an attempted conspiracy charge might lie) if one of the two persons is an undercover agent feigning agreement. the parties to a conspiracy must also have a corrupt or wrongful motive for their actions.Speciﬁc intent element applies to the proscribed conduct or results of conduct that are the object of the agreement What about attendant circumstances? differs state by state. offense by offense. another person's criminal purpose. a morally innocent but illegal act. object of the agreement was to bring about the prohibited result or to cause the prohibited conduct to occur. No recognition of the corrupt-motive doctrine No determination regarding what culpability.
Criticism rule undermines law enforcement purpose of conspiracy laws one who fails to conspire because partner was a law enforcement agent is no less dangerous or culpable than one whose colleague in fact possesses speciﬁc intent to go through with the criminal plan Model Penal Code Plurality UNILATERAL APPROACH A person is guilty of conspiracy with anothe rperson if he agrees with such other person to commit an offense No defense that the person with whom the actor agreed: 1. or 2. Act of one conspirator in furtherance of the agreement renders a prosecution permissible against every other party to the same agreement Structure of Conspiracies Wheel Center of the wheel (hub) is one person or group who transacts illegal dealings with various other persons or groups (spokes). has not been or cannot be convicted. is acquitted in the same or subsequent trail on the ground that she did not have the intent to go forward with the criminal plan Parties to a Conspiracy Issue question of whether there is a single conspiracy or multiple conspiracies? Liability for Conspiracy Structure of conspiracy affects the numbers of counts of conspiracy for which a particular person will be prosecuted and convicted Liability of Parties for Substantive Offenses Conspirator is guilty of every offense committed by every other conspirator in furtherance of the unlawful agreement.does not require that two persons be prosecuted and convicted of conspiracy it is enough that the prosecutor proves beyond reasonable doubt that two persons are guilty of conspiracy. dead. Structure of the conspiracy may dramatically affect an individual conspirator's liability for the substantive crimes of the others Overt Act Requirement Structure of conspiracy is critical in recognizing an overt-act requirement. etc Convicted conspirator is not automatically entitled to relief because of the acquittal of the remaining conspirators in a separate trial. For completion. there must be a "rim" around the wheel one must be able to draw a line around the wheel connecting the spokes Chain . doesn't matter if one of the conspirators is unapprehended.
Wheel Conspiracies Hub views each spoke as part of a broader criminal enterprise Spokes interpret situation narrowly Rim does not exist unless the prosecutor demonstrates that the spokes viewed their contacts with the hub as part of a plan broader than any individual spoke's relationship with the hub. extent of contact between the parties To be regarded as co-conspirator. number of defendants 3. of every other member of the conspiracy. he is guilty of conspiring with such other person or persons. To be a co-conspirator.03(1) unilateral approach to conspiracy 5. size of the business 4. there must be a community of interest among the parites or a reason to know of each other's existence. a defendant must have a general awareness of both the scope and the objective of the enterprise. whether or not he knows their identify to commit such crimes. as opposed to a speciﬁc person" often occurs in business-like criminal activities each person or group in the conspiracy has specialized responsibilities that link together the various apsects of the unlawful conduct issue is how many people or groups may properly be linked together longer the chain. the more tenuous the relationship between the distant links Chain-Wheel Common Law Analysis General Factors affecting ultimate result 1.involves "several layers of personnel dealing with a single subject matter. or even the existence. Shared. nature of the criminal activity 2.03(2) guidance in determining when parties to separate agreements to commit the saemc rime may be linked together If a person guilty of conspiracy knows that a person with whom he conspires to commit a crime has conspired with another person or persons to commit the same crime. Chain Conspiracies Ordinarily involves unlawful plans that cannot succeed unless each link successfully performs her responsibilities in the arrangement Chain-Wheel Conspiracies Each link has a stake in the larger venture Model Penal Code Conspiracy Structure Relevant Provisions 5. criminal objective is required. not just similar or parallel objectives between similarly situated people. in general. . a person does not need to know the identity. nor must she participate in every detail or event of the conspiracy.
.if more than the minimum number of persons necessary to commit an offense agree to commit the crime. part of a continuous conspiratorial agreement Conspiracy Defenses Impossibility Common Law Neither factual nor legal impossibility is a defense to criminal conspiracy. Wharton's Rule An agreement by two persons to commit an offense that by deﬁnition requires the voluntary concerted criminal participation of two persons cannot be prosecuted as a conspiracy Two exceptions 1. Objectives of a Conspiracy Issue: How many conspiracies? Are there conspiracies for each victim? Each crime? Or just one? Common Law Analysis Was a single agreement formed or many distinct ones? Many courts treat the initial agreement between the parties as one that implicitly incorporates later objectives. Model Penal Code A person with multiple criminal objectives is guilty of only one conspiracy if the multiple objectives are: 1. statute of limitations runs in her favor Proof of abandonment is strict require abandoning party to communicate her withdrawal to each of her fellow co-conspirators. Model Penal Code No recognition of defense of impossibility. "person is guilty if she agrees with another person that they or one of them will engage in conduct that constitutes an attempt to commit such crime" Abandonment Common Law Once the conspiracy offense is complete. part of the same agreement 2. Wharton's Rule is not triggered 2. she may avoid liability for subsequent crimes committed in furtherance of the conspiracy by her former co-conspirators. Some courts also require party to successfully dissuade others from pursuing their criminal obejctives Model Penal Code Afﬁrmative defense if the conspirator renounces her criminal purpose AND thwarts the success of the conspiracy under circumstances demonstrating a complete and voluntary renouncement of her criminal intent. Third Party Exception . once a person withdraws. abandonment is not a defense If a person withdraws from a conspiracy. If the two persons involved in the conspiracy are not the two people necessarily involved in committing the substantive offense. he is guilty of conspiring with such other person or persons. whether or not he knows their identify to commit such crimes.conspired with another person or persons to commit the same crime.
hire. request. requests. Mens Rea 1. but B is unaware of this. or a misdemeanor relating to obstruction of justice or a breach of the peace. must "intentionally commit" the actus reus 3. as an accomplice in its commission. invite. or encourages another to engage in conduct constituting a felony. can result in an anomaly when applied in conjunction with plurality doctrine . A knows that C's pocket is empty. under the law deﬁning the crime. or 2. or encourage another to commit a crime 2. thus lacking the speciﬁc intent required for solicitation.can sometimes preclude conviction of the non-immunized defendant Model Penal Code Unless the legislature provides otherwise. one who conspires with immunized party remains subject to conviction for conspiracy Solicitation General Principles Deﬁnition: Solicitation occurs when a person invites. however. should NOT be guilty of common law solicitation because he knew that B could not succeed in the larceny. hires. A is guilty because he BELIEVED that the crime could be committed. B has committed attempted larceny. even if B takes the suggestion seriously and commits the crime. Actus Reus 1. If B follows A's suggestion and puts his hand in C's empty pocket. commands. A is not guilty of solicitation if he encourages B to pick C's pocket.Model Penal Code NO WHARTON'S RULE Legislative Exemption Rule Common Law A person may not be convicted of conspiracy to violate an offense if her conviction would frustrate a legislative purpose to exempt her from prosecution for the substantive crime. A person is not guilty as an accomplice in the commission of an offense if she was the victim of the prohibited conduct. speciﬁc intent crime 2. A is guilty of solicitation if he encourages B to pick C's pocket and both A and B are unaware that C's pocket is empty. command. or if her conduct was "inevitably incident to its commission" Because MPC is a unilateral offense. a persona may not be prosecuted for conspiracy to commit a crime under MPC if she would not be guilty of the consummated substantive offense: 1. as the factual impossibility of committing the larceny does not serve as a defense to B's conduct. A. no further acts need to be performed in furtherance of the target offense . must intend that the other person consummate the crime Examples: A is not guilty of solicitation is he jokingly suggests to B that B steal C's TV.
Example: D solicits X to murder V. X attempts to murder V at D's request. along with X. D will not be punished for the crime of solicitation. Instead. 2. Cotton . D is guilty of murder via his solicitation.3. D is not guilty of solicitation. Would you do me a favor and get it for me?" D is NOT guilty of solicitation to commit larceny because D is not requesting X to engage in conduct that would constitute a crime by X. D solicits X to murder V. no solicitation. solicitation is complete the instant the actor communicates solicitation to the other person Example: Solicitation occurs even if A asks B to commit a crime but B refuses. X is not guilty of larceny since he lacks the speciﬁc intent to steal. He asked me to pick it up. D is guilty of conspiracy with X to murder V. D is guilty of solicitation. Here. but X fails in the effort. as solicitation again MERGES with the attempt. X is D's "innocent instrumentality" because if X believes D's representations and takes V's property. Solicitation is one way of assisting in an offense and therefore of being held accountable for the other's criminal acts. X kills V because of this request. Uncommunicated Solicitations Unresolved Issue State v. 4. Relationship of a Solicitation to the Target Offense Solicitation is also a basis for accomplice liability. X is guilty of no offense. 3. Grade of Offense common law misdemeanor treated as a lesser offense than the crime solicited inchoate offense Defenses: No impossibility defense Relationship of the Solicitor to the Solicited Party In General Principal in the First Degree person who is solicited Principal in the second degree/Accessory before the fact solicitor solicitor of a solicitor is still a solicitor Use of an Innocent Instrumentality D fraudulently says to X: "My television set is at V's house. However. the solicitation MERGES with the conspiracy. and X agrees but takes no action in furtherance of their agreement. of attempted murder. X refuses to commit the crime solicited. 1. as a result of the agreement. .jail inmate wrote wife letters to solicit but never reached wife. As before. or even if B agrees but does not intend to commit the crime (undercover police ofﬁcer). D is attempting to perpetrate the offense himself by using X as his dupe. but could be charged with attempted solicitation. as the solicitation MERGES with the murder. D is not guilty. Held.
ex. If D solicits X to sell him an illegal drug. D is guilty of an attempt even if X does nothing further. he commands. Act of solicitation coupled with "slight act" in furtherance of it by the solicitor is an attempt. and then displays or proffers money. and 2. by itself. solicitation has matured into attempt. No act of solicitation will make solicitor guilty of an attempt because it is not his purpose to commit the offense purposefully. Act of solicitation cannot. encourages. 4. and even if X is an undercover police ofﬁcer who would never have committed the crime. not an attempt because too remote. the actor's purpose is to promote or facilitate the commission of a substantive offense. an attempt to commit it. ex.very preparatory Essentially. ex. D would be guilty of attempted burglary. if D solicits X to burglarize V's home. 3. If D pays money to commit crime or furnishes him with an instrumentality to commit future offense. with such purpose. D is NOT guilty of attempt. or furnishes X with a weapon to commit the offense. If D pays X money to murder V. If D solicits armed X to murder V when he is in his presence. However. subject to ordinary attempt doctrines.Policy Considerations Intended to "nip criminal tendencies in the bud" Punishes very preparatory behavior you can even have "attempted solicitation" . and then opens a window at V's house for X's later entry. Model Penal Code In General Person is guilty of solicitation if: 1. Act of solicitation is not an attempt unless the solicitor's overt acts would constitute an attempt if he had intended to commit the crime himself.or solicitation can constitute an attempt. Broader than common law: . even if X never arrives at the scene. ex. or requests another person to engage in conduct that would constitute the crime. this can be attempt. solicitation is attempted conspiracy double inchoate crime attempted solicitation = triple inchoate! Justiﬁcation then comes from dangerousness of conspiracies Comparison of Solicitation to Other Inchoate Offenses Conspiracy Solicitation is attempted conspiracy HOWEVER is is possible to have a conspiracy without prior solicitation Criminal Attempt When/Whether D can be charged for attempted offense that D solicits? Various Approaches: 1. constitute an attempt to commit the offense solicited. ex. (substantial amount of courts) . If D solicits unarmed X to murder V when he return to town. 2. or would establish the other person's complicity in its commission or attempted commission.
advising. Accomplice Liability Complicity Overview 1.accomplice may be convicted of any offense committed by the P with the accomplice's INTENTIONAL ASSISTANCE. S is also guilty of attempted robbery. mere existence of the conspiracy is sufﬁcient to justify liability for the other's conduct. Assists can mean: aiding.1. Common law of complicity Primary Party (P) . 4. S is liable for the robbery committed by P. encouraging. Person (in most jurisdictions) may be held accountable for the conduct of a co-conspirator who commits a crime in furtherance of their agreement. but is guilty of attempted robbery. called "accomplice" or "accessory" liability 2.person who personally commits the acts that constitute an offense Secondary Party (S). Grade of offense Code grades nearly all inchoate crimes at the same level as target offense. either persuades the solicited party not to commit the offense or otherwise prevents him from committing the crime. solicited offense" . and/or procuring the commission of the offense. Uncommunicated commission is itself a solicitation.would now be guilty of solicitation of attempted larceny 3. assistance in commission of the crime is not required. Person may be held accountable for the conduct of another person if he assists the other person in committing an offense. If P fails in his effort to rob V. completely and voluntarily renounces criminal intent. Example: If S intentionally assists P to rob V. but who is associated with him in commission of an offense Deﬁnition of Accomplice S is an accomplice of P in the commission of an offense if he intentionally assists P to engage in the conduct that constitutes the crime. Defenses: Renunciation Not guilty of solicitation if: 1.any person who is NOT the primary party. Relationship of the solicitor to the solicited party need not be that of accomplice to perpetrator. Criminal Responsibility Derivative accomplice is not guilty of an independent offense derives liability from P with whom he has associated himself Primary party's acts become HIS acts THUS . and 2. "Empty pocket. abetting. S is guilty of no . soliciting. If P's conduct does not proceed sufﬁciently far enough to constitute any offense. Applies to solicitation of all crimes and not simply felonies and serious misdemeanors 2.
physically commits the acts that constitute the offense 2. intentional conduct is equivalent to manifesting consent to liability under civil law. Civil Agency Law Person may be held accountable for the actions of another if he "consents to be bound by the actions of his agent. by intentionally assisting the primary party. Constructively present: situated in a position to assist the principal in the ﬁrst degree during the commission of the crime "Lookout" or "getaway driver" Accessory Before the Fact A person who is guilty of an offense by reason of having intentionally assisted in the commission of the crime but not actually or constructively present when the crime is committed. whom he vests with the authority for this purpose" accomplice is held accountable for the conduct of the primary party because. Forfeited Personal Identity belief that "she who choose to aid in a crime forfeits her right to be treated as an individual" The accomplice authorizes the primary party's conduct: "Your acts are my acts" Terminology Principal in the First Degree Person who.effort to rob V. the accomplice voluntarily identiﬁes himself with the other. of the principal in the ﬁrst degree. with the requisite mens rea: 1. S is guilty of no offense as an accomplice. intentionally assists the felon to avoid arrest. so there is no liability for S to derive from P. either actual or constructive. P committed no substantive crime. perpetrator It is the Principal in the First Degree's conduct from which all secondary parties' liability is derived Principal in the Second Degree Person who is guilty of an offense by reason of having intentionally assisted in the commission of the crime in the presence. often the person who solicits. or conviction. with knowledge of another's guilt. trial. or commands (short of coercing) the principal in the ﬁrst degree to commit the offense Accessory After the Fact One who. S is also guilty of attempted robbery. commits the offense by use of an "innocent instrumentality" or "innocent human agent" Criminal actor. Clariﬁcation: The commission of an offense continues .until all of the acts constituting the crime have ceased. Defense of Accomplice Liability 1. 2.and therefore those who aid are principals in the second degree . If P's conduct does not proceed sufﬁciently far enough to constitute any offense. EXAMPLE . counsels. but is guilty of attempted robbery.
someone who would be excused from the crime (insanity.in a bank robbery." Jurisdiction principal prosecuted in jurisdiction in which the crime was perpetrated. the offense is not complete until the principal in the ﬁrst degree takes possession of another's property and carries it to a place of temporary safety. if accessory incorrectly charged as principal. applies regardless of the reason for acquittal Degree of guilt Accessory could not be convicted of a more serious offense or higher degree of offense.Accessory could be convicted of a higher degree of criminal homicide than the principal Assistance Types of Assistance 1. defrauded person Insane person. Assistance by Physical Conduct 2. anyone who intentionally assists the robber to avoid prosecution is an accessory after the fact Nearly all jurisdictions treat accessory after the fact as separate offense. Examples Dog manipulated person. Assistance by Psychological Inﬂuence . Innocent Instrumentality Rule A person is the principal in the ﬁrst degree if. rather than accessory after the fact After property has reached point of safety. duress) Difﬁculties in Application of Rule Nonproxyable cases Procedural Distinctions "Procedural devices served to protect many accomplices from the fate suffered by the principals. D could still be convicted Timing principals and accessories could be tried jointly or separately BUT. than his principal EXCEPTION . Accessory had to be tried in jurisdiction in which accessorial acts took place Rules of Pleading Indictment had to state correctly whether the party charged was a principal or accessory. driver of getaway car is principal in second degree. less serious offense then that committed by principal in the ﬁrst degree. accessory could not be tried BEFORE principal Effect of Acquittal of Principal Accessory could not be convicted of a crime unless and until the principal was convicted. he uses a non-human agent or a non-culpable human agent to commit the crime. acquittal required if principal incorrectly charged as accessory. with the mens rea required for the commission of the offense. THUS. child . infancy.
anything sufﬁces Examples S is not an accomplice in commission of robbery if he is present at the scene of the crime in order to aid P if necessary. even if assistance wasn't rendered 3. Assistance by Omission (assuming omitter has a duty to act) Neither failure to inform police nor failure to stop the crime will establish accomplish liability Unless there is legal duty property owner parent police ofﬁcer Amount of Assistance Required A person is not an accomplice unless his conduct (or omission) in fact assists in the commission of the offense. prepares food for P to give P sustenance during the planning or commission of the crime 4. Doctrine of Causation The Law A secondary party is accountable for the conduct of the primary party even if his assitance was causally unnecessary to the commission of the offense. . solicits. it doesn't matter how trivial it is .occurs if S incites. but his assistance is not called upon and asuming there are no additional facts to support claim of encouragement S is not accomplice of P if he performs an act to assist P but his conduct is wholly ineffectual utters words of encouragement to P who fails to hear them S opens a window to allow P to enter a dwelling unlawfully. presence coupled with very little else can justify ﬁnding of accomplice liability Proof of presence coupled with prior agreement to assist will support claim of encouragement. acting with required mens rea. holds P's child while P commits the crime 3. applauds P's criminal activities 2. Absence of the causation requirement is consistent with the underlying rationale of accomplice liability Criticism requirement of causal relationship is fundamental its irrelevance to accomplice liability is thus troubling Mens Rea Person is an accomplice if he intentionally aids the primary party to commit the offense charged. BUT once assistance is offered. but P enters through door S is accomplice of P if. coupled with hidden intention to aid if necessary is also not enough HOWEVER. encourages P to commit the crime presence at crime (even when coupled with undisclosed determination not to interfere) is insufﬁcient to convict Presence at scene. provides moral support by asking P to bring home bananas from the grocery store that P plans to rob. he: 1.
the mental state . recklessness. and likewise.(1) intent to assist the primary party in engaging in the conductthat forms the basis of the offense (2) . Acquittal on the Basis of a Defense Justiﬁcation Defenses Excuse Defenses 3. required for the commission of the substantive offense Attendant Circumstances As long as the secondary party acts with the purpose of assisting the principal in the conduct that constitutes the offense Natural and Probable Consequences Liability of the Secondary Party in Relation to the Primary Party General Principles Liability When the Primary Party is Acquitted 1. absence of proof of the ﬁrst mental state will demonstrate the lack of the second mental state. negligence. Knowledge: Meaning of Intent Liability for Crimes or Recklessness and Negligence Conviction of an accomplice in the commission of a crime of recklessness or negligence is permitted as long as the secondary party has the two mental states described . Issue The Feigning Accomplice Purpose v.dual intents: 1.intent. intent that the primary party commit the offense charged or 2. the mental state required for commission of the offense. Conspiratorial Liability Rule of Conspiratorial Liability Comparison of Liability Model Penal Code Forms of Liability Rule . Acquittal on the Basis of Lack of Mens Rea General Special Problem: Feigning Primary Party Liability of an Accomplice When the Primary Party is Convicted Limits To Accomplice Liability Legislative-Exemption Rule Abandonment Conspiratorial Liability: The Pinkerton Doctrine Accomplice v. as provided in the deﬁnition of the substantive crime second mental state may be inferred upon proof of the ﬁrst. intent to assist primary party to engage in the conduct that forms the basis of the offense 2. Primary Party as an Innocent Instrumentality 2.
06 (Complicity) to 5.01 (Criminal Attempt) Accomplice Liability By Omissino .Accountability Through an Innocent Instrumentatlity Miscellaneous Accountability Accomplice Accountability Rejection of Conspiratorial Liability Nature of an Accomplice Conduct Rule Accomplice Liability by Solicitation Accomplice Liability by Aiding Accomplice by Agreeing to Aid Accomplice Liability by Attempting to Aid General Rule Relationship of 2.
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