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1) The justification of punishment a) Why Punish?

i) Retribution: (1) a criminal should be punished for what they do because they deserve it. (2) Based on moral culpability. ii) Deterrence: (1) deter from committing future crimes; (2) Error in believing that criminals weigh the costs and benefits of crimes. iii) Rehabilitation: (1) Criminal minds can be changed and adjusted to society; (2) What makes a criminal tick? Try to find out and fix it. iv) Incapacitation: (1) Removes criminals from society so they cannot hurt anyone. b) Assigning Punishment i) Sentence length ii) Kinds of Punishment iii) To protect society iv) To punish defendant for crime v) To encourage defendant to lead law-abiding life vi) To deter others from committing the same crime vii) To incapacitate defendant viii) To secure restitution for victim ix) To seek uniformity in sentencing

c) What to Punish i) Protected conduct- legal rights, freedoms, liberties ii) Adverse Consequences from Punishing Harmful Conduct (1) Criminalizing immorality (2) Criminalizing product defects (3) Criminalizing the borders of Socially Valuable Conduct 2) The elements of just punishment a) Legality- Vagueness can invalidate a crime if it fails to provide notice that would enable an ordinary person to understand what conduct it prohibits and it may authorize or encourage arbitrary and discriminatory police enforcement. b) Proportionality- punishment must be proportionate to the crime; must not be excessive. c) Culpability: i) Actus reus- the physical, or external component of a crime.

(1) A willed bodily movement done while legally conscious--or an omission to act where there is a legal duty to actthat brings about a social harm. (a) Omissions: failure to act when there is a legal duty to act. (generally, there is no duty to act) (i) Situations where there is a legal duty to act: 1. Duty imposed by statute (teacher, police, etc) 2. Status relationship (husband/wife, parent/child) 3. Contractual (lifeguard) 4. Actor voluntarily assumes the care (cannot leave them worse off) 5. Actor created the peril or harm (If D is trying to rape someone and she jumps into the water and is unable to swim, he has a duty to rescue her from drowning) (2) Social Harms(a) The destruction, injury to, or endangerment of, some socially valuable interest. (i) Results crime- some crimes prohibit a specific result. (ii) Conduct crimes- some crimes prohibit specific conduct (drunk driving) (iii) Attendant circumstances- a fact that exists at the time of the actors conduct, which is required to be proven in the definition of the offense. ii) Mens rea- the attitude in which the actor engages in the actus reus, and involves some level of either deliberateness or carelessness. (1) MPC Culpability Terms Defined: (requires a mens rea term form each element of an offense.) (a) Purposefully- A person causes a result purposefully if it is her conscious desire to cause the result. (b) Knowingly- a person knowingly causes a result if she is aware that the result is practically certain to occur from her conduct. (c) Recklessly- a person is said to have acted recklessly if he consciously disregards a substantial and unjustifiable risk that the material element exists or will occur from his conduct. One is reckless when the risk-taking involves a gross deviation from the standard of care that a law abiding citizen would observe in the actors situation. (d) Negligently- a person acts recklessly when he should be aware of a substantial and unjustifiable risk, and the risk constitutes a gross deviation from the standard of care that a reasonable person would observe in the actors situation. (2) Basic conceptions: (a) General Intent crimes- any offense that requires proof of a culpable mental state, but which does not contain a specific intent. Sometimes, such an offense will have no explicit mens rea term in the definition of the offense.

(b) Specific Intent crimes- an offense that explicitly contains a mens rea element in its definition, such as an intent to commit a future act, a special motive for committing the offense, or an awareness of an attendant circumstance. (c) Strict liability crimes- an offense that does not require proof of mens rea along with the actus reus of the crime in order to convict the actor. (Ex: public welfare offenses). (3) Ways to establish intent: (a) Transferred Intent- intent follows the bullet from person to person but not from crime to crime of from one social harm to another. (b) Deadly Weapon Rule- intentional use of a deadly weapon on a vital part of the human anatomy and supports the inference of an intent to kill. (c) Natural and Probable Consequences Doctrine- one intends the natural and probable consequences of ones actions. (d) Knowledge with a Practical Certainty- know to a practical certainty that social harm will occur. (e) Willful blindness- conscious avoidance of learning the truth when aware of the high probability of the truth and there are facts that would put a reasonable person on notice of the truth; deliberate avoidance of learning the truth. (4) Mistake of fact(a) Common Law: (i) Specific intent- not guilty if her mistake negates the specific intent element of the crime. (ii) General intent- not guilty if her mistake was reasonable. (iii) Strict liability- never a defense, since there is no requisite of proof of mens rea. (b) MPC: (i) Mistake of fact is a defense so long as it negates a mental state element required. 1. Exception- of the would be guilty of lesser offense had the facts been as she believed them to be, the defense is inapplicable. (5) Mistake of law- is generally no excuse (a) Exceptions: (i) Where the reasonably relied on an official statement of law (ii) Relied upon a statute that was later adjudicated. (iii) The offense is new and has yet to be published. 3) Rape a) Common-law definition: i) Original (1) Carnal knowledge of a woman against her will (2) Amended: Carnal knowledge of a woman forcibly and against her will (3) There was a marital immunity (couldnt rape your wife) (4) Reasonable mistake in fact was a complete defense (general intent crime) (5) Felony crime, punishable by death ii) Modern: (1) Gender neutral

(2) (3) (4) (5) (6)

Variation in sexual conduct (not just intercourse anymore) Less focus on force, more on consent Revoked marital immunity No longer punishable by death Both mens rea and actus reus are very important here (a) The two are often linked (and gets courts confused)

b) Elements i) Rusk v. State (1) Engages in vaginal intercourse with another person (2) By force or threat of force (3) Against the will (4) Without the consent of the other person ii) Distinguishes b/t the will and w/o consent (1) Against the will implies resistance by victim (2) W/o consent includes force (3) Can mean same thing (many courts combine them) c) 2 degree rape (State v. Alston) i) Force + lack of consent = rape ii) Lack of consent (1) Evidence of actions that unequivocally show a no (2) Prior relationship has higher burden of proof (a) Court did say verbal no is enough iii) Force: (1) Actual force need not be shown (State v. Brown) (2) Threat of force is enough (threat of serious bodily harm) (3) Court says prior threats do NOT go to current actions (disjunctive) (4) Court doesnt talk about the actions by D right before act (5) Threat of force - General fear does NOT equal fear of actual crime iv) Reasonable fear (1) Rusk v. State uses objective, reasonable fear test to determine whether threat of force was enough for element v) MPC, 2.04 (1) Mens rea is recklessness (2) Mistake of fact can be used as defense, but only if its negligent mistake d) Alternatives: i) Can be described as forcible compulsion to include both force and consent (1) Force could be moral, psychological, or intellectual (2) Look at the totality of circumstances (3) Force has to go beyond what is inherent in a typical, consensual, sexual interaction (Commonwealth v. Berkowitz) (4) Verbal resistance, in and of itself, may not transfer Ds actions into criminal conduct (Berkowitz) ii) Sexual assault = commission of sexual penetration with another person with the use of physical force or coercion (NJ v. MTS) (1) Force, beyond actual penetration, not required where theres no consent (a) The act of penetration is in itself the requisite force (2) Need affirmative, freely given permission (objective standard) e) Resistance i) Not really an element of rape, but still focuses on victim ii) Way to show both elements and is objective in nature iii) Doesnt have to be shown in every case iv) Resistance issues:
nd

(1) Resistance + intercourse = force (a) Does Lack of resistance + intercourse = lack of force? (b) An objective measure that force was actually used (i) Victim puts sufficient resistance and is overcome, ipso facto force (ii) Linkage b/w how much resistance we require to be shown and how much force we require to be shown is necessary (c) Level of resistance required calibrated to level of force required (i) Some states require all out resistance, raising level of force needed for conviction (Brown v. State) (ii) More modern conception is resistance sufficient to establish act was by force and w/o consent, or resistance reasonable under circs (iii) Some states have statutorily eliminated need to show resistance (d) Also relates to how great threat of force must be - no resistance needed if preempted by sufficient threat (2) Resistance = lack of consent (a) Does Lack of resistance = consent? (b) Does Lack of permission = lack of consent? (c) Resistance shows objective evidence that victim did not consent (d) Better than just "no" if ct. is unwilling to accept "no." (3) Resistance and Mens Rea (a) Shows D must have known - or at least should have known - that victim didn't consent (b) As courts lessen or eliminate resistance requirement, MR harder to show and becomes more of an issue (4) Critiques (a) Cts. have taken resistance, a helpful way of showing force, lack of consent, and defendant's mens rea, and elevated it to de facto element of offense (i) E.g., Alston, the lower ct. in Rusk, and Berkowitz say the force or threat of force used was insufficient for the sex act to constitute rape (ii) Imposing a resistance requirement (b) Arguably resistance is sufficient but not necessary to show force, lack of consent, and defendant's mens rea (c) Perhaps resistance is neither sufficient nor necessary to show force, lack of consent, and defendant's mens rea but is simply helpful in doing so (d) On the other hand, perhaps resistance should be de-emphasized in the run of cases but remain the focus in close cases or where the actor and the victim are known to each other or have a prior consensual sexual relationship (e) Is a resistance requirement a good idea as a matter of policy? (i) Not necessarily a reflection of natural responses 1. Estrich says women are socialized not to resist - resistance requirement is another example of "boys' rules" 2. Berger says this attitude is patronizing to women - rape law should not be defined in terms of the stereotype of the completely passive woman (ii) Resistance might generate more harm 1. Different studies show different results in this area 2. Some studies suggest resistance might lead to less psychological harm (f) Shifts focus from actor to victim - inconsistent w/ rest of criminal law 4) Homicide The killing of a human being by another human being i) Intentional Killings (a) First-Degree Murder

(i) There is pre-meditation and deliberation (circumstantial evidence can establish planning, motive, etc.) 1. Premeditation: a. requires that the one with the cool mind did actually reflect before the act of killing. b. time for reflection varies from jurisdiction, it can be seconds. c. you have to prove that they actually did premeditate and not just that they had time to do 2. deliberation- requires a cool mind that is capable of reflection. (ii) Intoxication is a defense to lower it from first-degree. (b) Second-Degree Murder (i) Does not require intent or premeditation to murder. But there can be intent to do serious bodily injury or reckless indifference to human life. 1. Intent to kill or depraved heart. 2. Provocation a. Reasonable person standard - act how reasonable person would to lose self-control, enrage person b. must lose temper/control; battery; mutual combat; adultery (almost always sufficient) are all sufficient provocation c. Words are usually not enough for provocation unless they would make a reasonable person lose control and become enraged. (ii) Murder may not have to be intended if Ds actions show a callous disregard for human life and the consequences of his actions. 1. This exhibits the malice that separates second-degree manslaughter from involuntary manslaughter. (iii) Depraved Heart Murder 1. D does not intend to kill, but malice is implied because there is an extreme indifference to the value of human life (w/w disregard of likelihood and natural tendency of behavior to cause death or bodily harm ii) Unintended Killings (1) Involuntary Manslaughter (a) a wanton or reckless breach of duty to another causes an accidental death of another. Gross negligence is required. (i) Gross Negligence: 1. More than ordinary tort negligence 2. measured in light of all circumstances 3. the D must usually be aware of the risk that he is creating if he is to be liable. (2) Voluntary Manslaughter (a) There is an intent to kill, but there is also heat of passion, imperfect self-defense, imperfect defense of others, mercy killings. (i) satisfies the elements of murder and then try to find a mitigating circumstance to make it voluntary manslaughter instead. 1. Heat of Passion Manslaughter a. Two requirements, each subjective and objective: i. Provocation: objectivewould upset a reasonable person & subjectivethey were provoked

Cooling off: Objective-- there wasnt time for a reasonable person to cool off, subjectivethey had not cooled off. 2. Negligent Homicide a. Occurs when a homicide occurs and the mental state is more than tortious negligence, but less than gross negligence. i. includes vehicular homicide. ii. (3) MPC Criminal Homicide: 1. Rule: A person is guilty of criminal homicide if he unjustifiably and inexcusably takes the life of another human being purposefully, knowingly, recklessly, or negligently. 2. Recall: Code is subjective intent. 3. Murder a) Rule: (1) purposefully or knowingly; or (2) recklessly, under circumstances manifesting extreme indifference to the value of human life (formerly depraved heart) b) No degrees, however, murder is graded as a felony of first degree. c) Felony murder: Extreme recklessness is presumed if the homicide occurs while D engaged in, or is an accomplice in, the commission, attempted commission, or flight from enumerated felonies Note: Presumptions are almost impossible to turn. 4. Manslaughter a) Rule: D (1) Recklessly kills another, or (2) kills another under circumstances that would ordinarily constitute murder, but which homicide is committed as the result of extreme mental or emotional disturbance (EMED) for which there is a reasonable explanation or excuse b) Felony of the second degree c) Reckless Homicide (without extreme indifference): Conscious risk taking, although unjustifiable and substantial, not extreme enough to merit treatment as murder d) Extreme Mental or Emotional Disturbance (EMED)(affirmative defense): Would be guilty of murder (p, k, reckless w/ extreme indifference), but 1) during commission of the act suffered from an EMED 2) for which there is a reasonable explanation or excuse. Note: Both questions submitted to jury 2) Burden on D (preponderance of the evidence) 3) Incorporates two common law doctrines a) Sudden heat of passion (expanded b) Partial responsibility (diminished capacity) 4) Subjective and objective (partial) a) EMED: subjective b) Reasonable explanation or excuse for EMED that caused the actor to kill i. Reasonable person in the actors situation under the circumstance as he believes them to be ii. Handicaps and external charachteristics iii. Idiosyncratic moral values excluded (e.g. racism) Note: All else left to judicial determination 5) Provocation not required 6) No cool off period

7) Words alone can cause EMED 8) Upon finding of EMED, D entitled to instruction regarding manslaughter e) No misdemeanor-murder 5. Negligent Homicide (involuntary manslaughter at common law) (4) Felony Murder: (a) C.L. Rule: D is guilty of murder if he kills another during the commission or attempted commission of any felony (b) F.M is a strict liability offense: mens rea not required. (c) Justifications (i) Deterrence: Enhanced risk will cause felon to be more careful (d) Limits (i) Inherently dangerous felony: Many states limit to homicides occurring during the commission of felonies dangerous to human life 1. Test 1: Can the crime (in the abstract) be committed without creating a substantial risk someone will be killed? 2. Test 2: Are the facts and circumstances such that the felony was inherently dangerous under the circumstances? (ii) Independent felony. Merger limitation: F.M. only applies if felony independent of, or collateral to, the homicide. If not, then it merges and cannot serve as bases for F.M. conviction. Is death an integral part of the same crime as the underlying felony? 1. Rationale: No deterrence if already intending the harm (iii) Res Gestae Requirement: Homicide must occur within the res gestae (during the commission or attempt) of the felony (e) Note: If strictly applied, it limits F.M. rule, if broadly applied, it extends the rule 1. Proximity requirement: Must be close proximity in time/distance between felony/homicide 2. R.G. being when actor reached point where could be convicted for felony, ends when completed 3. Or, most courts say it ends when felon reaches a place of safety 4. Causal requirement: Felonious nature of conduct caused death a. e.g. Plane carrying drugs crashes/kills. Drugs did not cause death unless flying low to avoid cops. (ii) Killing by a non-felon 1. Agency approach: a. F.M. does not apply if an adversary to the crime, rather than a felon, personally commits the homicidal act i. F.M. does apply when person responsible for homicide is functioning as an agent (accomplice of primary party) ii. Rationale: iii. Killing not within res gestae iv. No deterrent effect over someone not in control 2. Proximate cause approach: A felon is liable for any death proximately resulting from the felony, whether killer is a felon or third party a. Justification: Set in motion chain of events, direct and inevitable sequence b. Limited version: D liable only for murder of non Ds. i. Rationale: To punish for killing another felon is to punish for causing a good result

5) Exculpation a) Principles of Justification A justification is one that indicates societys belief that the defendants conduct was morally good, socially desirable, or (at least) not wrongful; it is considered proper if it occurs for a justifiable reason Basic structure of justification defenses: Necessity Proportionality Reasonable belief i) Self- Defense: Common Law: (1) A person is justified in using deadly force against another if: (a) He is not the aggressor (i) An aggressor is a person who commits an unlawful act reasonably calculated (ii) A non-deadly aggressor, D, may regain her right of self-defense if the other party, B, responds to Ds non-deadly aggression by threatening to use excessive deadlyforce in response. 1. Majority rule- If B responds to Ds non-deadly aggression by threatening to use deadly force against D, D immediately regains her right of self-defense. 2. Minority rule- If B responds to Ds non-deadly aggression by threatening to use deadly force against D, D may not use deadly force in self-defense unless D first retreats, and B continues to threaten D with deadly force. If no safe retreat is possible, however, D may immediately use deadly force. (iii) D, a deadly aggressor, loses the right of self-defense in a conflict unless she abandons her deadly design and communicates this fact to B. (b) He reasonably believes that such force is necessary to repel the imminent use of unlawful deadly force by another. (i) Deadly force- force likely to cause, or intended to cause, death or serious bodily injury. (ii) Deadly force may never be used in response to a non-deadly threat. (iii) A person has no right to defend herself against lawfuljustifiedforce. She may only respond to unlawful threats of force. (iv) A person may not use deadly force in self-defense unless the aggressors threatened force will occur immediately, almost at that instant. (v) A person may not use deadly force unless it is necessary1. A person may not use deadly force to repeal an unlawful deadly attack if more moderate (non-deadly) force will do the job. (vi) Retreat: 1. Majority- non-MPC jurisdictions do not have a retreat requirement; Right should never have to yield to wrong. 2. Minority- Subject to the castle exception, a non-aggressor may not use deadly force to repel an attack if she knows of a completely safe place to which she can retreat.

a. Castle Exception: a non-aggressor is never required to retreat from her own home. (vii) Reasonable belief- a person may use deadly force in self-defense if she has reasonable grounds to believe, and actually believes, she is in imminent danger of death or serious bodily harm. 1. Imperfect self-defense: a who acts on the basis of an unreasonable belief entirely loses her self-defense claim, and therefore will be convicted of murder. Some jurisdictions, however, recognize an imperfect defense in homicide prosecutions: if D kills another in unreasonable self-defense, D will be convicted of the lesser offense of manslaughter. a. What is reasonable? i. That which a reasonable person would hold, it includes physical characteristics of the , and many courts today also subscribe to the view that prior experiences of the that help the defendant evaluate the present situation are relevant. (Goetz). (viii) Battered Woman Syndrome- a condition that causes a woman to sink into a state of psychological paralysis and to become unable to take any action at all to improve or alter her situation. 1. Most courts prohibit an instruction if the homicide occurred in nonconfrontational circumstances. Some courts do allow such cases to the jury, if BWS evidence is introduced to show that the , as a battered woman, suffered from this condition. This raises the question of whether the law is correct in requiring that a threat be imminent before deadly force may be used. MPC: (1) A person is not justified in using deadly force against another unless she believes that such force is immediately necessary to protect herself against the exercise of unlawful force, force likely to cause serious bodily harm, kidnapping, or sexual intercourse compelled by force or threat, by the other person on the present occasion. a. If the actors subjective belief is reckless or negligent, then the may be convicted of a homicide offense based on recklessness or negligence, thus recognizing an imperfect self-defense. b. A person may use self-defense in self-protection even if the aggressor will not use deadly force immediately. i. Limitations: 1. Defendant as the aggressor- defense not permitted if the actor is the aggressorone who provokes the use of force against herself in the same encounter for the purpose of causing death or serious bodily injury. 2. Retreat- a non-aggressor must retreat if she knows that she can thereby avoid the need to use deadly force with complete safety to herself. a. A person need not retreat from their own dwelling. 3. Non-necessity circumstances- if the deadly force be avoided by surrendering possession of a thing to a person asserting a claim of right thereto, then there is a duty to surrender possession.

ii) Defense of others A person is justified if using deadly force to protect a third party. Common Law: (a) Majority: A third party may use force when, and to the extent that, she reasonably believes that the third party would be justified in using force to protect herself. (b) Minority: a person may only use force to defend a third party if the person being defended would in fact have been justified in using the same degree of force in selfdefense. Even if the intervener reasonably believes the third party has a right to, if she is wrong, the claim is lost.

MPC: (a) The intervener would be justified in using such force to protect herself, if the facts were as she believed them to be (b) According to the facts as the intervener believes them to be, the third person would be justified in using such force to protect herself (c) The intervener believes force is necessary for the third partys protection (d) If the third party would be required to retreat under the code, the intervener must attempt to cause the third party to retreat before using deadly force. iii) Protection of Property Common Law A person is never justified in using deadly force to defend her real or personal property. A person is justified in using non-deadly force if she reasonably belives that such force is necessary to prevent the imminent, unlawful dispossession of the property. (a) The defender must be in lawful possession of the property at the time the force is usedforce may not be used to recapture; judicial redress must be sought. (b) Defense-of-property claims can sometimes merge into a self-defense claim where deadly force is justified. MPC The code authorizes use of non-deadly force to retake possession of land or recapture person property. The exception with land is only valid if it would constitute an extreme hardship to delay re-entry to the property. The code also authorizes deadly force if D believes: (a) 1-Intends to dispossess D of his dwelling other than under a claim of right possession, or (b) 2-Intends to commit arson, burglary, robbery, felonious theft inside the dwelling, and (i) has employed or threatened deadly force against or in the presence of D or (ii) The use of non-deadly force to prevent commission of the crime would expose D or another to substantial risk of serious bodily harm. iv) Necessity Common Law

(i) Lesser-Evils- the actor must be faced with a choice of evils or harms, and he must choose to commit the lesser of the evils. Put differently, the harm that D seeks to prevent by his conduct must be greater than the harm he reasonably expects to cause by his conduct. 1. Reasonable belief- the court or jury must put itself in the actors shoes at the time the choice had to be made: the harms to be weighed and compared are those that a reasonable person, at that moment, would expect to occur. 2. Imminency of harm- the actor must be seeking to avoid imminent harm; harm that appears likely to occur immediately. 3. Causal element- the actor must reasonably believe that his actions will abate the threatened harm. 4. Blamelessness of the Actor- the actor must not be at fault in creating the necessity. a. There is some support that necessity never applies in homicide prosecutions. (Regina v. Dudley and Stephens) MPC: 1. A person is justified in committing an act that otherwise would constitute an offense if: a. The actor believes that the conduct is necessary to avoid harm to himself or another, b. The harm that the actor seeks to avoid is greater than that sought to be avoided by the law prohibiting his conduct, c. There does not plainly exist any legislative intent to exclude the justification claimed by the actor. i. Under the code, the threatened harm need not be imminent. ii. The code expressly states that this defense is available in homicide prosecutions. v) Euthanasia (1) A state may require that a person not be denied life support unless a desire for such denial can be shown by clear and convincing evidence; it can be assumed that a person enjoys a constitutional protected liberty interest in declining to accept life-saving medical treatment. (2) Assisted suicide is not a fundamental liberty interest protected by the Due Process Clause. b) Principles of Excuse An excuse defense is one that indicates that, although the actor committed the elements of the offense, and although his actions were unjustified, the law does not blame him for his wrongful conduct. i) Duress- A person is not to blame for her conduct if, because of an unlawful threat, she lacked a fair opportunity to conform her conduct to the law. (1) Common Law: (a) A will be acquitted of an offense other than murder on the basis of duress if she proves that she committed the offense because:

(i) Another person unlawfully threatened imminently to kill or grieviously injure her or another person unless she committed the crime; and (ii) She is not at fault in exposing herself to the threat. 1. The nature of threat must include a deadly force, imminent, and reasonable. 2. Non-fault of the . (b) Originally, courts did not permit inmates to raise prison conditions as a defense to their escape. Some require the escapee to turn themselves in, others treat the failure to turn themselves in as a factor to be considered by the jury, and some will prevent the excuse if violence was used against other persons during the escape. (2) MPC: (a) must show he: (i) Committed an offense because he was coerced to do so by another persons use, or threat to use, unlawful force against him or a third party, and (ii) A person of reasonable firmness would have committed the offense. 1. Unlike under the common law, the threat does not have to be deadly or imminent. It is enough that the coerced used, or threatened to use and form of unlawful physical coercion. 2. The code permits a duress claim to be based on prior use of force, and not simply a threat of future harm. 3. Unlike common law, there is no bar to the use of duress defense in murder prosecutions. c) Intoxication i) Voluntary Intoxication- intoxication is not limited to the ingestion of alcohol, but is defined as a adisturbance of an actors mental or physical capacities resulting from the ingestion of any foreign substance, most notably alcohol or drugs, including prescribed medications. (1) Common Law(a) A person is never excused for his criminal conduct on the ground that he became voluntarily intoxicated. (b) Although it is not an excuse for criminal conduct, most jurisdictions following the common law provide that a person is not guilty of a specific intent offense if, as a result of voluntary intoxication, he lacked the capacity or otherwise failed to form the specific intent required for the crime. (c) However, voluntary intoxication does not exculpate for general intent offenses. (d) Temporary insanity- insanity propose a mental illness, not mere voluntary intoxication. Therefore, a is not entitled to argue, that due to vol. intox. He did not know right from wrong, or that he did not know what he was doing at the time of the offense. (2) MPC(a) Voluntary intoxication is a defense to any crime if it negates an element of the offense. (i) Exceptions: 1. If the is charged with a crime which recklessness suffices to convict, she cannot avoid conviction by proving that, because of intoxication, she was unaware of the riskiness of her conduct. Even though recklessness requires

actual awareness, since her failure to become aware was due to her voluntary intoxication. ii) Involuntary Intoxication (1) Common Law & MPC: (a) Intoxication is involuntary if: (i) The actor is forced to ingest the intoxicant (ii) Mistake: the actor innocently ingests an intoxicant (iii) Prescribed medication- the actor becomes unexpectedly intoxicated from ingestion of a medically prescribed drug. (iv) Pathological intoxication- the actors intoxication is grossly excessive in degree, given the amount of intoxicant, to which the actor does not know he is susceptible. 1. Lack of mens rea- the actor lacks the requisite mental state of the offense for which she was charged, whether the offense could be denominated as a specific intent or general intent crime. (Both MPC and common law) 2. Temporary insanity- a will be exculpated on the ground of temporary insanity if, due to involuntary intoxication rather than mental illness, she otherwise satisfies the jurisdictions insanity test. (Both MPC and common law). d) Legal Insanity: Common Law: (a) MNaghten Test of Insanity (i) A person is legally insane if, at the time of the act, he was laboring under such a defect of reason, from disease of the mind, as : 1. Not to know the nature and quality of the act he was doing wrong 2. If he did know what he was doing, that he did not know what he was doing was wrong. a. Many jurisdictions now use appreciate instead of know b. Courts are split as to whether this refers to legal or moral wrongness. i. Moral wrong test- not whether the believed his act was morally right, but rather when he knew (or appreciated) that society considered his actions morally wrong. Rarely does moral wrong and legal wrong matter. MPC: (a) A person is not responsible for her conduct if, at the time of the criminal act, as the result of a mental disease or defect, she lacked the substantial capacity to either: (i) Appreciate the criminality (wrongfulness) of her actions, OR (ii) To conform her conduct to the dictates of the law. (Volitional Prong) 1. The MPC approach allows legislatures to choose between criminality and wrongfulness. e) Diminished Capacity

Common Law: (1) Most states permit evidence of an abnormal mental condition, if at all, in order to negate the specific intent in a specific intent offense. Psychiatric evidence is inadmissible in the prosecution of general intent offenses. (a) A minority of jurisdictions do not permit diminished capacity to be claimed in any case. (i) Reasons for judicial hostility to the defense: 1. Doubts about the sophistication of psychiatric testimony. 2. Doubts about the need for the defense. 3. Post-trial implications 4. Specific intent vs. general intent MPC: (1) A should be acquitted of any offense for which he lacked the requisite mens rea, including those cases in which he lacked the mental state because of a mental disability, whether that disability is permanent or temporary. 6) Attempt a) Attempt occurs when a person with the intent to commit a criminal offense, engages in conduct that constitutes the beginning of the preparation of, rather than mere preparation for, the target offense. i) Most states that are based on the common law treat a criminal attempt as a lesser offense than the target crime. ii) Others hold that attempt should be punished at the same level of the crime in question. iii) Merger Doctrine- a criminal attempt merges into the target offense, if it is successfully completed. (applies in common law and MPC) Common Law: b) Actus Reusi) Last act test- the rule used to be that a criminal attempt only occurred when a person performed all of the acts that she believed were necessary to commit the target offense. Today, the general agreement is that an attempt occurs at least by the time of the last act, but no jurisdiction requires that it reach this stage on all occasions. ii) Dangerous proximity test- this standard is not satisfied unless the conduct is so near to the result that the danger of success is very great. The more serious the offense, the less close the actor must come to completion. (1) Consider: (a) The nearness of the danger (b) The substantiality of the harm, (c) The degree of apprehension felt

iii) Physical proximity test- an act must go so far that it would result, or apparently result in the actual commission of the crime it was designed to effect, if not extrinsically hindered or frustrated by extraneous circumstances.

iv) Probable desistance test- a person is guilty of attempt if she has proceeded past the point of no return, the point past which an ordinary person is likely to abandon her criminal behavior. c) Mens Reai) Criminal Attempt involves 2 intents: (1) First intent- actor must intentionally commit the acts that constitute the actus reus of an attempt. (2) Second intent- the actor must commit the actus reus of an attempt with the specific intent to commit the target offense. d) Special Defense: Impossibility: i) Factual impossibility- not a defense, but occurs when an actors intended end constitutes a crime, but he fails to complete the offense because of a factual circumstance unknown to him or beyond his control. ii) Legal Impossibility(1) Pure legal impossibility- when an actor engages in lawful conduct that she incorrectly believes constitutes a crime. Just as ignorance of the law is no excuse, it is also true that one who incorrectly thinks he is committing a crime is not guilty of an attempt to commit a non-existent offense. (2) Hybrid legal impossibility- when an actors goal is illegal, but commission of the offense is impossible due to a mistake by the actor regarding the legal status of some factual circumstance relevant to her conduct.

MPC: a) Actus Reusa. Complete attempt- where the has done every act necessary on his part to commit the offense, but has failed to commit the crime. (proving actus reus is easy) b. Incomplete attempt- when the has not committed the last act necessary on his part. (proving actus reus becomes more difficult). c. Substantial Step Standardi. One has gone far enough to constitute an attempt if the or omission constitutes a substantial step in the course of conduct planned to culminate in his commission of the crime. 1. The Common law looks to see how close the was to committing the crime, while the MPC looks to see how far the defendant has gone from the point of initiation of the target offense. b) Mens Reaa. Criminal result- purposefully engages in conduct that would constitute the crime. b. Criminal conduct- acts with the purpose of causing or with the belief that it will cause the criminal result. c. Or- purposefully does an act constitution a substantial step in furtherance of the offense. i. The code dispense of the impossibility defense by saying that a person is guilty of an attempt if his conduct would constitute the crime if the attendant circumstances were as he believed them to be. c) Solicitation a. Common law and MPC are basically the same. b. Merger applies

c.

Gradingi. CL- solicitation for a misdemeanor is a misdemeanor; solicitation for a felony is a felony, but is of a lesser degree than the felony solicited. ii. MPC- treats a solicitation to commit any offense other than a felony of the first degree as an offense of equal grade as the target offense.

Common Law: A person is guilty of solicitation if he intentionally invites, requests, commands, or encourages another person to engage in conduct constituting a felony, or a misdemeanor involving a breach of the peace or obstruction of justice. MPC: It is broader and applies to solicitation to commit any misdemeanor, as well as all felonies. a. Actus Reusi. Consummated when the actor communicates the words or performs the physical act that constitutes the invitation, request, command, or encouragement of the other person to commit an offense. 1. Common Law: a solicitation does not occur unless the words or conduct of the solicitor are successfully communicated to the solicited party. 2. MPC: provides that one who successfully attempts to communicate a solicitation is guilty of solicitation. b. Mens Rea: i. Common Law: is a specific intent offense at common law. The solicitor must intentionally commit the actus reus with the specific intent that the person solicited commit the target offense. ii. MPC: does not deal with specific intent and general intent, however, a person is not guilty of solicitation unless she acts with the purpose of promoting or facilitating the commission of the solicited offense. c. Defense: Renunciation: i. The MPC, but not the common law, provides a defense if the soliciting party: 1. Completely and voluntarily renounces her intent and 2. Persuades the solicited party not to commit the offense or oether prevents her from committing the crime. 7) Conspiracy Common Law An agreement between two or more persons to commit and unlawful act or series of unlawful acts. i. Grading- conspiracy to commit a felony is a felony, but is typically a lesser offense than the target offense. ii. Merger does NOT apply. iii. Rationale1. Preventative law enforcement- police can intervene even before the attempt phase. 2. Special dangerousness- more dangerous than an individual wrongdoing. a) Actus reus-

i) ii)

Conspiracy is committed as soon as the agreement is made. The agreement need not be in writing, nor verbally expressed, it may be implied from the actions of the parties.

b) Mens reai) Dual intent offense(1) Parties must intend to form an agreement (2) Parties must intend that the objects of their agreement be achieved, thus making it a specific intent offense. (a) Purpose must be distinguished from knowledge. (b) No person is guilty unless two or more persons possess the requisite mens rea for the dual intent. (c) Difficult to determine who is a party to a conspiracy. (d) In general, there are as many (or few) conspiracies as there agreements actually formed. (e) Defense- Whartons Rule(i) If a crime by definition requires two or more person, there can be no conspiracy to commit that offense if the only parties to the agreement are those who are necessary to the commission of the underlying offense. 1. Unnecessary parties- does not apply if the 2 conspirators are not the parties necessary to the commission of the offense. 2. Third-party exception- does not apply if more persons than are necessary to commit the crime are involved in the agreement to commit the crime. (f) A person may not be prosecuted for conspiracy to commit a crime that is intended to protect that person (stat. rape). (g) Neither factual nor legal impossibility is a defense (h) Abandonment- no defense since the crime is committed once the agreement is made. (i) However, a person who withdrawals may avoid conviction for offenses committed in furtherance of the conspiracy. (ii) Some jurisdiction- the individual must take an affirmative act to withdrawal. MPC A person is guilty of conspiracy with another person or persons to commit a crime if that person with the purpose of promoting or facilitating commission of the crime, agrees with such other person or persons that they or one or more of them will engage in conduct that constitutes such crime of an attempt or solicitation to commit such crime, or if that person agrees to aid the other person or persons in commission of the offense, or of an attempt or solicitation to commit such crime. (a) Grading- a conspiracy to commit any offense other than a felony of the first degree is graded the same as the crime that is the object of the conspiracy. (b) Merger- unlike common law, a conspirator may not be convicted of both conspiracy and the target offense, unless the conspiracy involves a continuing course of conduct. (2) Actus reus(a) An overt act is required, except for felonies of the first and second degree. (b) The object of the agreement must be a crime, and not merely an unlawful/unmoral act. (3) Mens rea-

(4) (5)

(6)

(7) (8) (9)

(a) Must act with purpose of promoting or facilitating the commission of the conduct that constitutes a crime. Rejects plurality rule- it takes two or more people to agree, but only one person to be guilty of a conspiracy. If a person guilty of conspiracy knows that the person with whom he has conspired has, in turn, conspired with still another person or person to commit the same crime, the first person is also guilty of conspiring with the other persons or person, whether or not he knows their identity. There is only one conspiracy between parties, even if they have multiple criminal objectives, as long as the multiple objectives are part of the same agreement, or part of a continuous conspirational relationship. The MPC does not recognize Whartons Rule, nor any impossibility defense. A person may not be prosecuted for conspiracy to commit a crime that is intended to protect that person (stat. rape). A person is not guilty of conspiracy if he renounces his criminal purpose and then thwarts the success of the conspiracy. (Minority view)

b) Conspiracy liability i) Pinkerton doctrine- a co-conspirator is responsible for any crime committed by any other member of the conspiracy, whether or not he assisted, if the offense was an object of the conspiracy or a reasonably foreseeable consequence thereof. (Not adopted by MPC) ii) Is there a conspiracy when an undercover agent is involved? (1) Modern view and MPC- yes (2) Traditional view- no c) Conspiracy ends when it is abandoned by all the parties (except where it begins by agreement), or upon completion of the act. d) Evidence can be inferred through surrounding items. The agreement is essential and may be hard to prove. e) Covering up the conspiracy is not an act in furtherance unless the parties made an express agreement to cover up the crime. Criminal Enterprises and RICO Under RICO, a person or group who commits any two of 35 crimes27 federal crimes and 8 state crimeswithin a 10-year period and, in the opinion of the United States Attorney bringing the case, has committed those crimes with similar purpose or results can be charged with racketeering. Those found guilty of racketeering can be fined up to $25,000 and/or sentenced to 20 years in prison per racketeering count. In addition, the racketeer must forfeit all ill-gotten gains and interest in any business gained through a pattern of "racketeering activity." When the U.S. Attorney decides to indict someone under RICO, he has the option of seeking a pre-trial restraining order or injunction to temporarily seize a defendant's assets and prevent the transfer of potentially forfeitable property, as well as require the defendant to put up a performance bond. This provision was placed in the law because the owners of Mafia-related shell corporations often absconded with the assets. An injunction and/or performance bond ensures that there is something to seize in the event of a guilty verdict. In many cases, the threat of a RICO indictment can force defendants to plead guilty to lesser charges, in part because the seizure of assets would make it difficult to pay a defense attorney. Despite its harsh

provisions, a RICO-related charge is considered easy to prove in court, as it focuses on patterns of [2] behavior as opposed to criminal acts. There is also a provision for private parties to sue. A "person damaged in his business or property" can sue one or more "racketeers." The plaintiff must prove the existence of a "criminal enterprise." The defendant(s) are not the enterprise, in other words, the defendant(s) and the enterprise are not one and the same. There must be one of four specified relationships between the defendant(s) and the enterprise. This lawsuit, like most Federal civil lawsuits, can take place in either Federal or State court. [1] Both the federal and civil components allow for the recovery of treble damages (damages in triple the amount of actual/compensatory damages). Although its primary intent was to deal with organized crime, Blakey said that Congress never intended it to merely apply to the Mob. He once told Time, "We don't want one set of rules for people whose collars are blue or whose names end in vowels, and another set for those whose collars are white and have Ivy [2] League diplomas."