Criminal Law Outline Spring 2010

In Criminal cases the prosecution must prove their case beyond a reasonable doubt. o Extends to every element of the case

I. Elements of a Crime A crime consists of an actus reus (the act itself) and the mens rea (the mental state) and it is presumed that the act is voluntary (volitional, free will). A. Actus Reus (guilty act) The Actus Reus of an offense is the physical manifestation of the crime (the prohibited conduct, or unlawful omission); the deed itself; the culpable act. (usually obvious/non-controversial) The s act must have either performed a voluntary physical act or failed to act under circumstances imposing a legal duty to act. 1) Voluntary Act For an act to be voluntary, the must be conscious of what they are doing unconsciousness is usually considered a non-voluntary act (no defense if unconsciousness is voluntarily induced) o The Criminal Law presupposes a voluntary act, unless it is indicated otherwise. o Involuntary acts are not deterred by punishment Treat volition as a third element along with Actus Reus and Mens Rea. The actus reus must be accompanied by a voluntary act. Duress is an example of a non-voluntary act (even though action is conscious) Ex) Sleepwalking, reflexive or convulsive acts = non-voluntary act. State v. Utter o is a WWII veteran with extensive jungle/combat training (He is trained to respond in a specific manner) o One day is intoxicated and is surprised by his son and stabs him, killing him. His defense is it was a conditioned response no volition Court rejects this o Also claims that he was so drunk he was unconscious and his act was involuntary Does not work b/c he voluntarily induced this state. 2) Omissions The court punishes affirmative acts and generally a person has no legal duty to act in order to prevent harm to another. Courts will punish failures to act in certain circumstances: o Four circumstances in which an omission is a legal obligation: 1) Where a statute imposes a duty Ex) filing income tax, reporting an accident 2) Where one stands in a certain status relationship to another Ex) marriage, employee-employer, parent-children 3) Where one has assumed a contractual duty to care for another Ex) nursing homes, lifeguards 4) Where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid People v. Beardsley o Beardsley and a woman were drinking and taking drugs over a weekend period and the woman eventually dies o guilty b/c he secluded the woman he had no legal obligation until he secluded her

Hypo: Guy kidnaps girl and puts her in truck. GF of guy hears the cries for help but does nothing. GF not liable for not acting omission does not fall into the 4 obligations. B. Mens Rea (guilty mind) The Mens Rea of an offense describes the state of mind of the defendant at the time of the offense. You cannot be convicted of a crime unless you have the requisite of mind. Look at the words that were said as well as the actions to determine this. 1. Broad view (Guilty Mind) The broad view of mens rea refers to where a specific mental state is not explicitly required sufficient if the crime is committed with any morally blameworthy state of mind. o Having a morally blameworthy state of mind General Intent Offenses offenses that make no mention about mens rea o generally common law offenses, adopts a general moral blameworthy state of mind Ex) Grievous bodily harm murder, rape

2. Narrow View The narrow view of mens rea refers to the specific mental state the must have had with regard to the social harm o More of an elemental approach to mens rea the mens rea is specified in the offense Specific Intent Offenses offenses which have a required mens rea o generally model penal code offenses o Some defenses apply to only specific intent crimes (i.e. voluntary intoxication and unreasonable mistake of fact). Ex) Express Malice murder, Voluntary Manslaughter, Theft, Attempts, Solicitation, Conspiracy, Accomplice Liability

3. Model Penal Code, 2.02 General Requirements of Culpability TEST (a) Purposely To satisfy the mental state of intent the must act with the conscious objective or purpose to accomplish the result or engage in the conduct. (b) Knowingly To satisfy the mental state of knowledge the must be consciously aware that such a result is practically certain to be caused by his conduct Generally, court will look at how a reasonable person (objective view) would think in the particular situation while taking into account the surrounding circumstances (subjective view) MPC 2.02(7) Such knowledge is established by a high probability of its existence, unless really believes it does not existdif. than actual knowledge (c) Recklessness To satisfy the mental state of recklessly, the must have consciously disregarded a substantial or unjustifiable risk that a material element exists or will result from his conduct. The actor must know of the risk and consciously disregard it. (d) Negligence To satisfy the mental state of negligence the must have failed to be aware of a substantial or unjustifiable risk that a material element exists or will result from his conduct. The actor is not aware of the risk but should been o Distinction b/w reckless and negligent is the awareness

Attendant Circumstance a condition(s) that needs to be satisfied before you can be charged with the offense often it is an element of the offense. 4. Mistakes or Ignorance of Fact (Defense) An honest mistake of fact is a defense when it negates a required element of the crime. 1) If charged with a general intent offense, you may only make a mistake that is reasonable 2) If charged with a specific intent offense, you may make a mistake that is either reasonable or unreasonable People v. Navarro o took 4 wooden beams from construction site. He claims he thought they were abandoned and that the owner would not object. o b/c is charged with a specific intent offense, his mistake of fact defense can be reasonable or unreasonable 5. Mistake or Ignorance of Law (No Defense) Ignorance of law is not an excuse even if the mistake or ignorance was reasonable we are presumed to know the law o Cannot claim mistake of fact based on ones own interpretation of a statute o Cannot claim mistake of fact alleging you acted on the advice of legal authority Reasonable-Reliance Doctrine (Lambert Exceptions) A person can be excused for a criminal offense if they reasonably relied on an official statement of the law, later determined to be erroneous. If you relied on the following you can be exculpated: 1) a statute which governed your behavior at the time you engaged in an offense 2) if you relied on a decision of the supreme court at the time 3) if you relied on formal advice given to you by an official charged with enforcing matters of the law o does not include advice from your own counsel Mistake of different law If the mental state of an offense requires a certain belief concerning a collateral aspect of the law, ignorance or mistake as to that aspect of the law will negate the requisite state of mind. o This situation involves ignorance of some aspect of the elements of the crime rather than ignorance of the existence of the statute making the act criminal. Ex) X delivers his car to mechanic for repairs. Mechanic tells him it will be $5000. X argues with mechanic and mechanic says he will keep car until he is paid. Mechanic goes to lunch and X grabs the keys to his car and drives off. o X can be charged with larceny even though it is his car b/c of Mechanics lien law. However, X is ignorant to this law (mistake of law) and can use it as a defense (only for specific intent offenses)

II. Murder The common law rule for murder is the unlawful killing of a human being with malice aforethought. A. Common Law Murder 1) Express Malice Murder o Clear intent to kill conscious objective, purpose 2) Implied Malice Murder no intention to kill a) Grievous Bodily Harm o Intent to cause grievous bodily harm no intent to kill o When you inflict harm to the extent that there is a serious/significant risk of death (reasonably foreseeable) Ex) beat a pregnant woman with pool cues and her baby dies. They had no intent to commit murder they are guilty of implied malice murder. b) Depraved Heart Murder (acting with an abandoned and malignant heart) A is guilty of depraved heart murder if they display extreme recklessness. A is reckless if they consciously disregard a substantial and unjustifiable risk to human life. It is considered extreme recklessness, where the risk of death is great and the justification for taking the risk is either minimal or non-existent. o No intention to kill it is implied malice o Extreme/Gross recklessness, Wanton indifference to the value of human life. Ex) Drug dealer has trained dogs to protect his house which contains his drugs. One day the dogs kill a child that lives next door. This is gross recklessness depraved heart murder. c) Felony-Murder Rule If during the course of the commission of, or attempted commission of an enumerated felony, a person dies (whether deliberately or accidentally) the person(s) committing the felony is generally guilty of first degree murder under the felony-murder rule. o No intention to kill prosecutor does not have to prove the mens rea of the murder all they must prove is the mens rea of the underlying felony. B. Murder (Statutory provisions) 1) First Degree Murder First degree murder must have two essential elements: premeditation, deliberation Premeditation to think of a matter before it is executed Deliberation to reflect, to measure and evaluate aspects of the crime; to analyze o There is no time requirement for premeditation/deliberation must be a min. time to give an opportunity to step back and be fully conscious of what you are doing. State v. Guthrie and victim are dishwashers and victim teases the defendant and snaps him w/ towel. gets angry and stabs him, killing him. charged w/ first degree murder. This was not first degree murder b/c the killing was spontaneous no premeditation or deliberation. 2) Second Degree Murder Anything murder which does not fall under first degree murder is second degree murder. There are no degrees of murder in the Common law degrees of murder are statutorily created do not discuss degrees of murder for Common law issues

III. Manslaughter A. Voluntary Manslaughter (heat of passion) Voluntary manslaughter is an intentional killing done in a sudden heat of passion, caused by adequate provocation, before there is a reasonable opportunity for the passion to cool. Voluntary Manslaughter is an intentional killing distinguishable from murder by the existence of provocation If provocation is accepted a murder charge is reduced to voluntary manslaughter. o Provocation Provocation must be adequate (acting from passion rather than reason) The killing must have been in the heat of passion It must have been a sudden heat of passion killing must follow the provocation before there has been a reasonable opportunity to cool There must have been a casual connection b/w the provocation, the passion, and the fatal act. o Words alone do not constitute provocation Exceptions: 1. Word alone w/ present intent to cause serious bodily injury 2. Informational words conger up images in your mind 3. Discovery of spouses adultery 4. s illegal arrest 5. Mutual combat Acts which are not sufficient to constitute provocation: 1. A trivial battery 2. Learning about, but not observing, adultery 3. Observation of the sexual unfaithfulness of a fianc or other unmarried partner. 4. Words alone, no matter how insulting or offensive

Extreme Emotional Disturbance (MPC) Extreme Emotional disturbance can be described as a state of mind in which the experienced intense feelings, sufficient to cause loss of self-control, at the time of the fatal act. Requires a response by the to something that is instantaneous must demonstrate to the court that he had a reasonable excuse for suffering EED (not an excuse for the actual killing)

Under the MPC, it permits provocation that has occurred over days, months, years before it comes to fruition Common law requires some spontaneous event B. Involuntary Manslaughter To be guilty of involuntary manslaughter, or criminal negligence, you must be guilty of ordinary recklessness or grossly negligent conduct; you did not intend to kill o Distinguished from depraved heart murder which requires extreme/gross recklessness difference is in the awareness of the risk Depraved heart murder you have to be aware of the risk, but you still persist in your course of conduct Involuntary Manslaughter (Criminal Negligence) you are unaware of the risk, but should have been aware

IV. Felony-Murder Rule If during the course of the commission of, or attempted commission of a felony, a person dies (whether deliberately or accidentally) the person(s) committing the felony is generally guilty of first degree murder under the felony-murder rule. Mens Rea: No intention to kill prosecutor does not have to prove the mens rea of the murder all they must prove is the mens rea of the underlying felony. Most states statutorily outline which felonies give rise to the felony-murder rule the inherently dangerous felonies. o California created a second-degree felony-murder rule which applies for any death during the commission of any inherently dangerous felony that is not included in the felony-murder statute very few states do this o What is considered inherently dangerous? Can the felony be committed n a way which does not pose a risk of killing someone? If yes, no inherently dangerous If no, it is inherently dangerous Limitations to Felony-Murder i. Inherently Dangerous Felony Limitation Felony must be considered inherently dangerous. By declaring the conduct an inherently dangerous felony, society has warned of the risk involved. ii. Independent Felony (or merger) Limitation The felony must be independent of the homicide for the felony murder rule to apply. When the felony is an integral part of the homicide, a person is not deterred by the felony-murder rule. iii. Guilty of Underlying Felony The must be guilty of the underlying felony. If he has a defense to the felony, he also has a defense to felony murder iv. Killing of Co-Felon The is not liable under felony murder for the death of a co-felon.

The purpose of the felony-murder rule is not to deter the underlying felony, but instead to deter negligent or accidental killings that may occur in the course of committing that felony to deter committing felonies in a dangerous, life-threatening manner. Need to discuss this on exam People v. Smith o was angry at child and took her into her bedroom and spanked and slapped her. continued to hit child knocking her to ground. Eventually knocked the child backwards and she fell and hit her head on the closet door and died. could not be charged under the felony-murder rule; b/c the child abuse was integral to the homicide. Ex) You are a drug dealer and you cut your drugs w/ a dangerous material which kills someone. Purpose of the felony was not to kill someone but there is great risk of death. Is subject to felonymurder murder does not merge with felony EXAM Approach: o Does the felony-murder rule deter the wrong doer from committing the homicide? o Does the felony have an independent purpose other than death?

State v. Sophophone o and 3 others broke into house and police respond and runs. is caught a placed in police car. Another police officer chases after other person and is shot and killed. charged with felony-murder. o cannot be held guilty of the acts of a non-felon there is no joint venture. Two Approaches to Killings by Non-Felons: Majority Rule: the felony-murder doctrine does not apply if the person who directly causes the death is a non-felon. o There is no joint venture b/w a felon and a non-felon it is an independent unlawful killing Proximate Cause Approach: a felon may be held responsible under the felony-murder rule for a killing committed by a non-felon if the felon set in motion the acts which resulted in the victims death. V. Rape (Common Law) A is guilty of common law rape if they have unlawful sexual intercourse with a victim both by force and without the victims consent. Mens Rea: General intent Actus Reus: Penetration (common law) Defenses: Consent/Mistake of fact (thinking there was consent) Consent and force are two separate elements force is receiving less attention today o Force or threat of force must be used in order to obtain the sex. Force must be the physical effort required to engage in the physical conduct of intercourse penetration = force o Consent can be withdrawn at any point in the intimate encounter o Permission v. Consent o When you have a case in which the parties have a previous relationship, there is a burden placed on the to show that all previous consents have been withdrawn State v. Alston and have been in a relationship that involves sexual intercourse. says she often had sex with to accommodate him. eventually leaves the after he hits her. then meets the at her school, threatens her and then they go to a friends house where they have sex. did not consent to the intercourse but used no force therefore, no rape. The threat of force was not immediate to the obtaining of the sex, or used to obtain the sex. In cases where the parties have a previous relationship, the burden is on the victim to show that all previous consents from previous occasions have been withdrawn. For an EXAM: divide up analysis b/w defense and prosecution points Resistance Requirement: (common law and statutes require some resistance) o If the assailant is using moderate force the victim is required to resist. Moderate force is force that would not lead to death or serious injury o No resistance requirement exists when the assailant is threatening the victim with force to such an extent that a reasonable woman would fear serious bodily injury if she were to resist (extreme force). Must have subjective evidence that the victim has suffered fear and that a reasonable woman (objective) would have feared the conduct. Must have evidence that was engaged in conduct which would lead a victim to fear serious bodily injury or death

Force Requirement: (courts view on force is changing) o In California statutes, force is view as the physical effort required to engage in the physical conduct of intercourse. If there is penetration, there is force

VI. Theft Larceny (Specific Intent offense) Common law theft is the trespassory taking and carrying away of the personal property belonging to another with the intention to permanently deprive that person of their property. Mens Rea: Intent to permanently deprive, intent to steal Must have this intent at the time of the taking Actus Reus: The trespassory (w/o consent) taking and carrying away of the personal property of another Defenses: b/c it is a specific intent offense, reasonable or unreasonable mistake are defenses. Must be personal property not real property (not labor or services either) if landowner gains possession of material severed from the land, they are now subject to larceny.

Ex) A cut down 15 trees on land owned by B. A loaded 10 trees into her truck and drove off. B found the 5 remaining trees and put them in his shed. A returned and took the 5 remaining trees from the shed. A is guilty of theft of how many trees? o A is guilty of theft of the 5 trees that came into Bs possession after their severance from the land. Elements of Larceny: 1) trespassory (w/o consent) taking (caption) 2) carrying away (asportation) (need only be slight) 3) of the personal property (not real property) 4) of another 5) with the intent (at the time of the taking) 6) to permanently deprive Actual Possession the person in physical control of the property Constructive Possession the person is not in physical control of the property but nobody else has actual possession of it, either b/c the property was lost or b/c another person has mere custody Custody a person has custody of property if he has physical control over it, but his right to use it is substantially restricted by the person in constructive possession of it. o A person has mere custody if he: has temporary and extremely limited authorization to use the property; received the property from his employer for use in the employment relation is a bailee of goods enclosed in a container; or obtained the property by fraud

Rex v. Chisser asks to see two ties which the owner hands to him. The owner offers 7s to which offers 3s. The owner rejects his offer and runs away with the property. claims he was given possession of the property, in reality he only had custody b/c the owner retained constructive possession.

United States v. Mafnas was employed with an Armored Service delivering bags of money to Bank of Hawaii. On 3 occasions opened the bags and removed the money. argues that he was given lawful possession of the bags, w/ the consent of the bank. was only given temporary custody of the bags and was to deliver them. The owners of the bags retained constructive possession until his task was completed. When opened the bags and removed the contents he was guilty of larceny. w/ relation to a bailment, the bank is the bailor b/c it is their money. The Armored car service, become the actual possessors of the containers when the money is given to them, but the bank retains constructive possession of the contents (the money). Thus, the theft occurs when the bailee () opens the container and removes its contents. o If took the container and did not open it no theft. Lost Property Cases The so called rights of the finder depend on: 1) The possessory interest of the owner of the property 2) The state of mind of the finder at the time he finds and takes the property o Reasonable clue as to ownership: if the finder knows the owner, or the nature of the property or the circumstances in which theyre found, indicates to the finder that the owner can be located. If there is no reasonable clue as to the owner, you can do whatever you want with the property. o The common law does not impose a duty to a finder to act with diligence to find the owner just have to act honestly

Brooks v. State Newton came into town to conduct business and tied his horse to a hitching post. On his way home he realized he had lost a package of bank bills. He searched for it but could not find it. He published a notice of the loss in 2 newspapers. About a month later found the bank bills near the hitching post. He did not tell anyone he found it and within 30 minutes of finding it he quit his job and spent some of the money. Shortly afterward and his wife left town. claims he did not see the notices of the lost money but is convicted of larceny. Court said: If the property has not been abandoned by the owner, it is the subject of larceny by the finder, when at the time he finds it, he has reasonable ground to believe, from the nature of the property or the circumstances in which it is found, that if he does not conceal but deals honestly with it, the owner will be found. One way to identify the intent to permanently deprive is to see if the has dealt with the property in a way that is inconsistent with the rights of the owner. o Has the asserted the rights of an owner? Ex) Keeping something for your own purposes, concealment for a long period, selling it

People v. Davis walked into Mervyns with a Mervyns bag and grabbed a shirt of the rack from one end of the store, and took to the other end of the store to return it. The boss sees this and tells the cashier to give him store credit. argues that there was no trespassory taking b/c the boss consented. Boss did not consent to given possession of the shirt.

Three Categories of Intent to Permanently Deprive: 1) Selling something back to the owner There is a significant risk that the owner will refuse to buy back the property, and thus the owner will be permanently deprived of the property. 2) Reward Cases If the takes something and waits for a reward to return it, if no reward is offered, he would permanently deprive the owner of the property b/c he is no likely to return it. 3) Refund Cases If the store refuses the refund, is not likely to put it back, thus has the potential to permanently deprive the store of the property. VII. Defenses A. Self-Defense The law of self-defense is considered the law of necessity b/c of the immediacy of the threat. Must be subject to some immediate attack or threat of an immediate attack. o Must be a reasonable fear. Response to the threat must be proportionate. No defense exits if you are the initial aggressor unless you withdrawal yourself from the fight and communicate it to the other person. 1) Non-deadly Force A person may use reasonable force to protect themselves from the imminent use of unlawful force upon them. There is no duty to retreat before using non-deadly force 2) Deadly Force A person may use deadly force if they are threatened with unlawful force threatening death or serious bodily injury. There is a duty to retreat if the person reasonably believes they can do so with complete safety in any place other than their home. US v. Peterson o sees someone stealing his windshield wipers. comes out and after a verbal exchange goes back inside and gets a gun. He tells the victim, If you come in here I will kill you. Victim then goes to his car to get a wrench and started toward . warned him to not take another step, but he continued and shot him. Defendant claims self-defense. o became the aggressor when he retrieved his gun and threatened to kill victim. No defense of self-defense exists for the aggressor.

Initial Aggressor Doctrine If in an aggressor doctrine jurisdiction, the initial aggressor can lose the right to selfdefense and can only get it back if they abandon the fight and give notice to his adversary that he has done so.
B. Defense of Others In general, a person may use force to protect a third party from unlawful use of force by another. o Same rules for self-defense apply. C. Defense of Property A person may use non-lethal force to protect their property (does not include ones home). A person may use reasonable force if you have a reasonable belief that it is necessary to protect your property from imminent and unlawful threat.

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Defense of Habitation Deadly force may be used: i. when you have a reasonable belief or reasonable apprehension that deadly force is necessary to prevent an attempted forcible entry. ii. if that forcible entry itself would create a reasonable apprehension that the would commit a felony in your habitation or commit an offense of serious bodily injury or worse

D. Necessity The defense of necessity may be raised if the s actions, although in violation of the law, were necessary to prevent an even greater harm from occurring. 3 general elements to the defense: 1. The charged offense must have been done to prevent a significant evil 2. There must have been no adequate alternative 3. The harm caused must not have been disproportionate to the harm avoided The law of necessity should generally be invoked when the forces of nature play a role and force you to make a choice. must have a reasonable belief, even if mistaken, that he needs to make a reasonable choice. o Court will look at the s reasonable belief at the time he made the choice (not at what ultimately occurred) E. Duress (TEST) The defense of duress should be invoked when human agencies cause us to make choices which in normal circumstances we would not normally make. There are 3 elements of the duress defense: 1. An immediate threat of death or serious bodily injury. 2. A well grounded fear that the threat will be carried out, and 3. No reasonable opportunity to escape the threatened harm. Duress is never an excuse for murder you have an obligation to resist o Duress can play a role in the level of murder you are charged with Felony-Murder Rule in relation to Duress o If a murder occurs during the commission of a felony or attempted felony, you will be charged with first degree felony-murder o You cannot be charged with felony-murder if your defense to the felony is duress b/c there is no mens rea requirement for the murder

F. Intoxication Intoxication only operates as a defense to specific-intent offenses and not to general intent offenses. If your mental faculties are impaired, you are not able to form the required specific-intent necessary for these types of offenses. 1. Voluntary Intoxication o You are responsible for putting yourself in the intoxicated state. 2. Involuntary Intoxication o Situations where you do not know that you are taking an intoxicant.

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Types of Involuntary Intoxication: i. Unwitting Intoxication being unaware of the intoxicant/Innocent mistake Ex) Having your drink spiked ii. Coerced Intoxication You are forced to consume the intoxicant iii. Pathological Intoxication Intoxication grossly excessive in degree, given the amount of the intoxicant, to which the actor does not know he is susceptible You must be unaware of the rxn that the drug may have on you Ex) If you take an OTC medication and it has an unexpected effect on you and you are unaware of this effect. VIII. Inchoate Offenses A. Attempts Criminal attempts are specific intent offenses and creates a special mens rea and actus reus for the attempt, irrespective of the target offense. Look at the mens rea of the attempt, not the target offense. o Cannot be charged w/ attempted: felony-murder, involuntary manslaughter, or depraved heart murder - no specific intent requirement. Mens Rea: The mens rea of a criminal attempt requires dual intent. 1. You must intentionally perform the actions which brought you in close proximity to the completion of a substantial criminal offense. Ex) Getting a gun, loading it, aiming it, and firing it. 2. You must intentionally do all the things in (1) in order to commit the target offense. (w/ the intent to commit the target offense) Ex) Did all of the above things in order to kill. o Completed Attempts you have done everything in your power to carry out the offense but you have failed. Ex) See a drug rival and decide to get rid of him. You grab a gun, make sure it is loaded, take aim, pull the trigger but you miss. Incomplete Attempts Someone or something has intervened to prevent you from completing the offense Ex) Same as above except as you point the gun a police officer tackles you before you can fire.

Actus Reus: An action becomes an attempt when the begins the actual act of committing the offense 2 Approaches to Attempts: o Common law - must have an overt act to be guilty of an attempt Must distinguish b/w preparations v. overt acts An overt act is something did beyond mere preparation o Model Penal Code must look at what substantial steps the has taken does not look at preparations or overt acts

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Substantial steps: a.) lying in wait, searching for or following the contemplated victim of the crime b.) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission c.) reconnoitering the place contemplated for the commission of the crime d.) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed e.) possession of materials to be employed in the commission of the crime, that are specially designed for such unlawful use or which can serve no legitimate purpose of the actor under the circumstance f.) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances. g.) soliciting an innocent agent to engage in conduct constituting an element of the crime

Defenses to Attempts: a) Impossibility i. Factual Impossibility never a defense to a criminal offense You complete all the acts for the commission of the offense, and but-for some fact preventing you, you would have completed the commission of the offense. Ex) Picking an empty pocket is no defense. ii. Legal Impossibility Pure Legal Impossibility (always a defense) - you engage in conduct which you believe to be prohibited by the law, but in reality it is not Hybrid Legal Impossibility goal of the conduct is unlawful, but the commission is impossible; both a legal and factual element You intend to do something illegal but you made a mistake as to an attendant circumstance. Ex) s goal in unlawful, but the commission is made impossible b/c the made a mistake about the status of an element of the offense The majority of courts that still recognize Hybrid Impossibility translate it into Factual Impossibility which is not a defense People v. Thousand talked to police officer pretending to be 14 year old girl in chat room. send crude pictures and arranges to meet with the girl. tries to raise factual impossibility as a defense that it was impossible for him to commit the crime b/c the officers was an adult not a child doesnt matter b/c factual impossibility is never a defense Here, s goal was to commit a criminal offense, but he could not achieve it b/c there was no minor Hybrid legal impossibility most courts translate this into factual impossibility thus no defense.

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b) Abandonment An abandonment defense, in relation to an attempt, only exists if you abandoned your attempt wholly, internally, and voluntarily. Must be characterized by volition must have acted without influence from any outside forces (e.g. encouragement, persuasion) If you abandon your criminal activity due to forces in which you have no control, the defense no longer exists. Commonwealth v. McCloskey was a prisoner who was attempting to escape the prison yard. tripped the alarm when he cut a piece of barbed wire. explained that he was going to make a break for it but changed his mind. b/c defendant was still inside the prison walls, only contemplating a prison break, and not yet attempting the act; he can abandon the criminal offense voluntarily and wholly and thereby exonerate himself from criminal responsibility. B. Solicitation (merges) A solicitation occurs if you ask, advise, entice, induce or counsel a person to carry out a crime with the specific intent that this person carry out the target offense. Mens Rea: The solicitor must have the intent that the person carry out the offense. o You cannot be guilty just by asking, must have the intent as well. Actus Reus: The actual asking, enticing, urging, etc. the solicitation. o The common law requires that the solicitation is communicated un-communicated solicitations are not unlawful. o Under the MPC, no communication is required. It does not matter if the solicitee refuses. The offense is completed as soon as the communication is complete, assuming the solicitor has the required intent. o If the solicitor successfully entices a solicitee, both parties are guilty of solicitation (if the offense is completed both parties will be liable) In the event that the offense is attempted or completed the solicitation drops out (merges) and the both parties will be charged with the attempted or completed offense

State v. Cotton writes letters to his wife from jail telling her to get their step-daughter to either no testify against him or to testify in his favor. The letters never make it to his wife no communication. Under the common law is not guilty of solicitation under the MPC he is. C. Conspiracy a meeting of the minds A conspiracy is an agreement b/w two or more parties to accomplish together some criminal offense, or to accomplish a lawful act by unlawful means. To be guilty of conspiracy requires a meeting of the minds. Unlike solicitation, conspiracy does not merge with the target offense it is a stand alone offense. Mens Rea: dual specific intent offense 1. must intend to form an agreement with others and 2. intend that the object of the agreement be achieved. Actus Reus: The agreement itself (the agreement can be express or implied) o Essence of conspiracy is the meeting of the minds

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Overt Act under the common law, no overt act is required. o Statutorily this is sometimes a requirement (e.g. California)

Pinkerton v. U.S. All for one and one for all. (TEST) o Pinkerton Doctrine the acts of one conspirator can be attributed to another, not withstanding their absence. To be guilty of conspiracy does not require direct participation by all conspirators involved. In this case there was no direct participation by the , but the offenses were committed in furtherance of an agreement of which the was a part, and that agreement therefore follows him unless he withdrawals it. (as long as the offenses are reasonably foreseeable). Defense to Conspiracy: One way to exculpate oneself from conspiracy is to withdrawal. o Must communicate your intent to withdrawal to your co-conspirators in a sufficient manner. Another way to exculpate oneself from conspiracy is if the offense committed by the coconspirators goes beyond the scope of what was planned or was reasonably foreseeable. You cannot conspire to commit unintentional murder no specific intent. An exception to the meeting of the minds requirement exists for providers of services and sellers of goods. o Two requirements to finding a provider of goods or seller of services acting in furtherance of the criminal activity: Knowledge Intent

Commonwealth v. Azim and 2 others are charged with assault and battery conspiracy. drove the car while others called the victim over, beat him, took his wallet and left. argues he didnt do anything b/c he sat in the car the whole time. Court said sometimes its hard to find direct evidence to link someone but you must also look at the surrounding circumstances such as the relationship b/w the people and any over act of the co-conspirators. Court look at what transpired to determine the actus reus. drove them there, sat at the wheel, with the engine on, car doors open, didnt help the victim, and drove the others home. o He had knowledge, presence and participation. IX. Accomplice Liability The doctrine of complicity emerges to define the circumstances in which one party becomes liable for the crime of another. A person who is an accomplice becomes liable not for aiding and abetting but is liable for the substantive offense committed by the principal in the 1st degree. The accomplice must assist and support the principal and their assistance must be something that the principal is able to rely on. If a person has agreed to provide assistance, his mere presence at the time of the offense makes him an accomplice, even if he does not render any assistance. A person cannot be an accomplice if no crime has been committed.

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Mens Rea for an accomplice: dual intent 1. Intent to provide aid and 2. Intent that the primary party carry out the offense Actus Reus: Assistance (ex) encouragement); mere presence is not enough Principal 1st degree person who commits the offense directly Principal 2nd degree person who aided, counseled, or encouraged the commission of the offense and is actively or constructively present at the time of the crime (close enough to lend support). Accessories before the fact someone who lends assistance prior to the commission or attempted commission of the criminal enterprise. Accessories after the fact someone who knows of anothers guilt and helps them in efforts of hindering their punishment

Ex) 3 people enter into a conspiracy to rob a bank; there is a meeting of the minds. A enters the bank, holds up the teller and points a gun at the teller. B watches the door and C is the driver of the getaway car. Accomplice Liability helps determine each persons level of participation. A is the principal in the 1st degree he actually committed the offense B and C are principals in the 2nd degree they aided, counseled the commission but were not present when it occurred. All 3 are guilty of robbery and conspiracy.

At common law, the principal in the second degree may be tried and convicted prior to the trial of the principal in the first degree, or even after the latter has been tried and acquitted. o Also, a principal in the second degree may be convicted of a higher crime or a lower crime than the principal in the first degree. At common law, an accessory cannot be tried, without his consent, before the principal. o Also, an accessory could not be convicted of a higher crime than his principal.

1. Look-Outs The traditional common law rule is that look-outs are principals in the 2nd degree b/c they are not actually committing the offense. State v. Hoselton s friends broke into a storage unit with the intent to commit larceny. was charged as a principal in the first degree. was unaware of his friends intent to commit larceny and he was not with them at the time of the offense nor could he see what they were doing. When his friends returned with the goods he did not assist them in placing the goods in the car, and he drove them home. st Court found that was not a principal in the 1 degree b/c he did not share the intent of the principal and he did not participate. 2. Providers of Goods and Services A , who is the provider of goods and services, is generally guilty of conspiracy and by necessary implication, can be guilty as an accomplice: 1) If he knows of the criminal activity, and additionally 2) Either he intends: i. to participate in the criminal activity, or ii. he knows that the offense is very serious, or iii. he has a stake in the criminal activity

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General rule = if someone is guilty of conspiracy, he wont by necessary implication, be guilty as an accomplice. o Can only be charged with both conspiracy and accomplice liability if you are a provider of goods or services if you are not you can only be charged with one or the other, not both.

3. Felony-Murder Rule The general rule is that anyone involved in the direct or attempted perpetration of an enumerated felony, will be subject to conviction of the felony-murder rule. State v. Linscott and 2 other men (Willey and Colby) drove to the house of a friend (Fuller) who had a sawed-off shotgun in his possession and joined the group. then drove to another house where they obtained shells for the gun and Fuller suggested they drive to the house of a drug dealer to rob him. agreed to the plan and drove the men to the house. broke the living room window and Fuller fired a shot into the house hitting the drug dealer. They then took $1300 from the dealer and left. At trial, was found guilty of robbery and on a theory of accomplice liability, found him guilty of murder. (In most jurisdictions felony-murder would apply here) st Fuller is a principal in the 1 degree, he committed the crimes. participates in the crime of robbery but does not carry out the murder principal in the 2nd degree to be convicted of the secondary offense murder it must be shown that the killing was a reasonably foreseeable consequence of the robbery.

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