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Table of Contents

Voluntary Actus Reus (Common Law) Voluntary Actus Reus (Model Penal Code) Omission and Legal Duty CL Omission and Legal Duty MPC Possession CL Possession MPC Mens Rea CL Mens Rea MPC Mistake CL Mistake MPC Specific Intent Crimes CL Statute Requires Specific Intent Chart Statute Requires General Intent Chart Willfully Blind CL Willfully Blind MPC Strict Liability (CL) Strict Liability MPC Causation CL Causation MPC Homicide CL Homicide MPC Felony Murder Rule CL + MPC Manslaughter CL Manslaughter MPC Voluntary Manslaughter (Legal Adequate provocation) CL Involuntary Manslaughter CL 1 1 1-2 1 2 2 2-3 2 3 3 4 4 4 4 4 4 4-5 5-6 5-6 6-7 6-7 7 7-8 7-8 8-9 9 Rape CL Rape MPC Modern Rape Law CL Attempt, Inchoate Crimes, CL +MPC Rape CL Rape MPC Modern Rape Law CL Attempt, Inchoate Crimes, CL +MPC Duress, CL + MPC Necessity CL +MPC Self Defense CL Self Defense MPC Solicitation Accomplice Liability Insanity 9-11 9-11 11-12 12-13 9-11 9-11 11-12 12-13 13-14 14-15 16-17 16

Common Law v. MPC Type of Crime Common Law Voluntary Act Crime requires either a voluntary physical act or an (actus Reus) omission when there is a legal duty to act. Movement willed or directed by the actor. At least one voluntary act in defs course of conduct, he may be criminally responsible. People v. Decina: def, knowing subject to seizures, voluntarily drove a car and he seized killing people. Though seizure was involuntary, voluntary: drive the car.

Omission and Legal Duty


Mens Rea

Motivate individuals to perform obligations imposed on them by other laws. Legal duty: 1. Relationship. (Dependence or interdependence) 2. Statute. 3 contract to provide care 4. Voluntary assumption of risk isolates the ind. 5. creation of peril 6. duty to control conduct of another 7. Duty of landowner. Forbid possession of specified items,. Mere possession or the failure to terminate possession once the def learns of presence is sufficient. Requiring active or constructive knowledge on the defs part of the nature of the item he has. General Intent Intending the content v. intending the result Transferred Intent: intent follows the bullet. Limited to

Model Penal Code 1.13 (2): voluntary or involuntary. His liability is based on conduct that includes voluntary act or omission to perform an act. Does not define voluntary act. 2.01 (a): types of actions that are not voluntary acts. a) reflect or convulsion b) bodily movement during unconsciousness or sleep c) conduct during hypnosis d) body movement that is not product of effort/determination of actor either conscious or habitual Components of a crime 1.13 (9) i, ii, iii. Conduct: Phy behavior Circumstance: objective fact or condition when the def engages in conduct. Result: consequence/outcome caused by defs conduct. 1. statute defining the offense expressly states that failure to act is a crime. 2. Def has a duty to act imposed by civil law. MPC 2.01(3) (a) and (b). Similar to Common law.

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1. Adopts element analysis 2. Reduces statutory mens rea culpability to four states (2.02): Every material element in every statute must be modified by of one 2

results that create the same type of harm as was actually intended. If Mary throws a rock and hits Jon instead of Jack. Vs. Mary throws a rock at Jack and hits a plate glass window, the intent is not transferred. Oblique Intent Treat def as though he had intended the actual result. Def didnt really intend the result but he knew that if he acted, the result was practically certain to happen if he achieved his actual goal. Specific Intent: with intent to: specific intent offense. Crime is a specific intent crime. Knowledge: Def need not intend a result, she need only know that the result is virtually certain. A person who knows that a crime might occur, but does not intend that the crime occur, is not guilty. Recklessness: conscious decision to ignore a risk, of which the def is aware, that a bad result will occur or that a fact is present. Def knows injury is being risked but proceeds anyway. Def must recognize that there is a particular risk and subjectively choose to disregard that risk. If the resulting harm is severe, a minimum degree of recklessness may be required, if, however, the resulting harm is less serious, the same def may not be found reckless. Criminal Negligence: degree of neg/carelessness which is denominated as gross, and which constitutes such a departure from what would be the conduct of an ordinarily careful and prudent manas to furnish evidence of that indifference to consequences which in some offenses takes the place of criminal intent. Exception: 1. Ignorance/mistake of the law is relevant whenever it negates the statutory mens rea. 2. Mistake is relevant when the charge is one of specific intent.

of the mental culpability states. Purposely: conscious object to engage in conduct of nature or to cause such result (2.02(2)(a)(i)) Attendant circumstances: aware of existence of circumstances or believes/hopes that they exist. Knowingly: aware that it is practically certain that conduct will cause result. Aware of a high probability of the attendant circumstances existence, unless he actually believes that it does not exist (2.02(7)). Reckless: consciously disregards substantial + unjustifiable risk that material element exists or will result from conduct. Risk (sub+unjust) when: disregard involves gross deviation from standard of conduct that law-abiding person would observe in actors situation. Negligent: should be aware of sub and unjustifiable risk that material element exists or will result. Risk same as Reckless but based on reasonable person. Criminally negligently- Only allows in HOMICIDE. 3. adopts subjective liability (recklessness) as the default position.


2.04 (1): ignorance or mistake as to a matter of fact is a defense if: a) negates the purpose, knowledge, belief, recklessness or negligence (mens rea) required to establish a material element of the offense. - Any mistake negatives the requisite mental state. 3

Negligence: mistake as to fact that is a gross deviation from Ignorance: does not know that act is criminal what a reasonable person would understand it will suffice for Mistake: Knows there is law generally but believes law liability. does not cover his act. Never exculpated. Usually held to 2.04 (3): In Reasonable reliance: if can show that he has acted be irrelevant to his guilt. - Common Law; acquits persons by relying on official statement, statute or enactment, judicial who because of mistakes of fact commit what turn out to decision, administrative order, official interpretation, etc. be crimes. Some mistakes of fact Negated mens rea.--> NOT MPC allow for juries to acquit. REASONABLE MISTAKES Statute Requires Specifics Intent: to be acquitted. Reasonable mistake of law: exonerates Unreasonable mistake of law: exonerates Mistake of Fact Reasonable Mistake of Fact: exonerates General Intent Offenses Unreasonable Mistake of Fact: exonerates Reasonableness: Ordinary rule is a person is not guilty of general-intent crime if his mistake of fact was Statute Requires General Intent: reasonable, but he is guilty if his mistake was Reasonable mistake of law: Guilty unreasonable. Unreasonable mistake of law: Guilty Specific Intent Offenses: A def is not guilty of an Reasonable Mistake of Fact: exonerates offense if his mistake of fact negates the specific-intent Unreasonable Mistake of Fact: Guilty portion of the crim, i.e. if he lacks the intent designated in the defn of the offense knowingly, negligently, recklessly. Mistake of Law Specific Intent Any mistake of the law, no matter how unreasonable Crimes would be a valid defense to a specific intent crime. Like Larceny: specific intent as one intends to take the property of another , but if believes its his car that he doesnt have the intention to take property of another. Specific Intent: only the really bad (not merely unreasonable) should be convicted. In these crimes, an unreasonable mistake, if honestly held, became relevant claim. NOT MPC Statute Requires Specifics Intent: Reasonable mistake of law: exonerates Unreasonable mistake of law: exonerates Reasonable Mistake of Fact: exonerates Unreasonable Mistake of Fact: exonerates Statute Requires General Intent: Reasonable mistake of law: Guilty Unreasonable mistake of law: Guilty Reasonable Mistake of Fact: exonerates Unreasonable Mistake of Fact: Guilty 4

Willfully Blind

Strict Liability

Willfully blind to the facts should be treated as thought knew the facts. Anyone confronted with facts that should alert them to the relevant facts is as morally blameworthy as someone who actually knew. Duty to inquire when the facts are highly suspicious. Idea of willful blindness, generally accepted in every jdx, severely criticized as vague and unfair. Some jdx, use of reasonable person std. Jury instruction: Must be very close to knowledge for guilt. Lack a mens rea requirement. Proof of actus reus is enough. Sexual acts (adultery, bigamy, and statutory rape) Protection of minors Public Welfare Offenses: sale of mislabeled drugs, possession of arms. Dangerous (drugs, grenades/explosives) Highly regulated Responsibility for Causing Harm Defs conduct must have been both the CIF and Prox. Harm. Cause in Fact But for causation. If the harm would NOT have occurred unless the def had engaged in conduct. To be convicted, CIF must be found. Without it, harm cannot be linked to defs behavior. Cause in Fact is not enough for criminal responsibility. Omission as Cause Omission fails to interrupt other forces at work, as consequence of def not intervening, harm that was avoidable occurs. Concurrent Causation Satisfies the but-for req. Harm of two+ sources, each act alone was sufficient to cause result. Each held liable. Direct Cause Defs act is only causal agent in bringing about the

Code retains willful blindness, treating those who see a high probability of a fact is knowing that fact. 2.02 (7)


Does not recognize strict liability expt: 2.05: culpability is not required only with regard to offenses which constitution violations. Violations: An act for which imprisonment is not an available sentence (1.04(5)). May ask for mens rea. 2.04 (2): Mistake is not a defense if the def would be guilty of another offense had the situation been as he supposed. - If imprisonment is possible, the statute cannot impose strict liability. Responsibility for Causing Harm transforms much of analysis of causation into an inquiry about defs culpability. But For Requires prosecution to establish but for cause and any other specific causal req. imposed by code. Analysis is reqd when the result that occurs is different from the result intended/contemplated. Transferred intent: cases of causation with necessary causation analysis.Only if result that occurs is not within purpose/contemplation of actor. MPC focuses on defs culpability toward result. Compares what actually happened with what the def thought or should have thought would happen. If results different: then 2a, 2b (purpose/knowingly) or 3a/3b (recklessly or neg) apply. 2APurposefully/Knowingly If actual result differs from actors purpose or knew would occur, he is NOT responsible for the actual result UNLESS: i. different 5


harm. No other casually connected act. Satisfies Prox. Harm. Proximate Harm When the def should be held criminally responsible for causing harm even though an intervening cause helped bring about the harm. 1. Intended or reasonably foreseeable. 2. Not too remote/accidental. Dependent Intervening Cause Cause is one intended or reasonably foreseeable by the def. Sufficiently related to his conduct. Independent Intervening Cause Another actor or even causes the harm that is unexpected or unusual manner that def not held responsible. Breaks chain. 1. Harm not intended or not foreseeable. 2. Simply unfair/unjust to hold him responsible. Acceleration Even if outcome is inevitable, everyone dies, if defs act accelerated death, he can be found criminal liable. (Shooting a terminally ill patient, death wouldnt occur but for shot) Obstructed Cause Def commits voluntary act intending harm, but another wrongdoer commits more serious injury that kills victim sooner, initial might only be convicted of attempt since 2nd obstructed his goal. Apparent Safety Doctrine s unlawful act puts V in danger may be found to be prox cause of resulting harm, unless V has route to safety but puts herself in further harm which causes injury. Def: unjustified and unexcused killing of a human being. Killing with Malice aforethought. Or Implied Malice. 1. Person is presumed to intend the natural and probable consequences of his act. Only grades of Murder and Manslaugther. Degrees statutorily invented later. First Degree Murder: premeditated, deliberated (brooded over during reasonable time), and killed

person/property ii. def actually caused lesser harm than contemplated. Similar to common laws transferred intent. 2B he will not helf responsible if unusual and unexpected causal mechanisms actually caused the harm. Lets fact finder conclude that mechanism that caused harm too remote/coincidental. Subjectivty invited. Recklessly/Negligently Compares the harm that actually occurred with harm risked by actor. A person is responsible for harm that actually occurs if harm simply involves inury to diff. person/property or less serious harm. Actor is responsible unless too remote. 2.03 (4): causation is analyzed in strict liability offense that contains result element. Actual result must be a probable consequence of the actors conduct.

210: no degrees. Can have murder, manslaughter and negligent homicide. 1.purposely 2. Knowingly or 3. Recklessly under circumstances manifesting extreme indifference to human life. : depraved heart. Reckless: subjectively recognize the risk of death. If def is merely reckless, death is manslaughter A homicide is murder if intentionally takes a life or acts with 6

willfully. 1. planning activity 2. Motive 3 manner of killing. Second Degree Murder: Default position. Killing was murder but not premeditated/deliberate. Malice Aforethought: mens rea in homicide. Malice: 4 kinds of malice murder in common law: 1. Premeditated and deliberate (1st) 2. Intentional (intent to kill) murder (Wilful) (1st) 3 Extremely reckless murder. Depraved Heart. Extreme indifference to value of human life. (2nd) 4. Murder when intent was grievous bodily harm. (2nd) Reckless Murder: Attempted to achieve a socially acceptable end. Entitled to protect oneself even at the cost of others lives. You cannot KILL someone to save your own life, but you CAN put someone elses life AT RISK. (CA: 2nd degree) Felony Any death occurring during the course of a felony is a Murder Rule murder. killing must be done during the felony neither person-endangering felonies nor nondangerous felonies can be the basis of a felony murder charge. Independent Felonious Purpose Predicate felony must not be one involving personal injury but have a purpose other than inflicting harm. People v. Smith: mother beating child to death could not be held for the resulting unintended death under the FMR. Inherently Dangerous Felony Rule Felony can only be used as a basis of a conviction if the def was engaged in a felony that created serious risk of death. CA: Must be determined that dangerous in the abstract to be constituted as FMR.

extreme recklessness (depraved heart murder)

210.2(1)(b): Extreme reckleness (and thus murder) is presumed if homicide occurs while the def is engaged in, or is an accomplice in, the commission, attempted commission, or flight from one of the dangerous felonies specified in the statute. Severely limits the doctrine, allowing its application only in cases involving: robbery, rape, arson, burglary, kidnapping or felonious escape. Most legislatures have otherwise adopted the MPC have rejected its view here.

Res Gestae: start-to-end sequence. Felony res gestae considered terminated when the suspect has achieved a position of relative safety from law enforcement. Agency Rule: cannot be charged for death that is caused by other person not involved in the felony. Second degree murder is a court-made rule, it has no statutory definition. A homicide that is a direct causal result of the commission of a felony inherently dangerous to human life (other than the felonies enumerated in Pen Code 189) constitutes Second degree murder. Rule: eliminates the need for proof of malice in connection with a charge of murder. look to elements of the felony in the abstract, not the particular facts of the case. Manslaughter an unlawful homicide without malice aforethought Voluntary: killing done on a sudden in the heat of passion after adequate provocation. legally adequate provocation heat of passion (no mens rea) - limiting capital punishment. Involuntary: unintentional killing resulting from commission of lawful act done in an unlawful manner akin to CN Criminal Negligence: Greater or Gross negligence. Failure to appreciate the need for a level of care. Untoward harm occurs, failure to exercise the level of care. Objective standard for not fully appreciating the risk. What would the average or reasonable person in this situation would think would be required? Misdemeanor-Manslaughter: unintentional killing that occurs during commission or attempted commission of an unlawful act. (has to be non-felony) 210.3(1)(a)-(b): 1) recklessly kills another or (2): kills another person under circumstances that would ordinarily constitute murder, but homicide is committed as result of extreme emotional or mental disturbance (EED) for which there is a reasonable explanation or excuse. must have acted purposely, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life with regard to death. Not time limit/cooling off period. any impetus for disturbance is sufficient, not limited to legally adequate provocation. Inflammatory words (racial, ethnic or gender) might be covered MPC. Send the cases to a jury. Explanation for the disturbance must be reasonable. Reasonableness of EMED: viewpoint of a person in the actors situation under the circumstances as he believes them to be. Incorporate: sudden heat of passion (expanded) and partial responsibility (diminished capacity)

Legally 1. A battery mutual combat, or aggravated assault: adequate doctrine of self defense provocation 2. Adultery (must SEE) (Voluntary 3. Illegal arrest manslaughter) Words alone could never constitute adequate legal provocation. Some courts: have created an exception to this exception: If the words spoken by the victim informed the def of an event that, had the def witness it would be legally provocative, the words might qualify. Def can not use heat of passion when enough time to cool off after being provoked. The Reasonable Man Test Adequate must be enough to cause reasonable man to act in passion. take into account reasonable persons make up such as age, gender, physical statute, physical disabilities, lack of sleep, and other facts. REFUSE to use psychological characteristics. Holley court settled the question for the foreseeable future. cool off left for the jury. And rekindled if see for instance, rapist from earlier reappear and then that person attacks rapist. Involuntary Reckless and Negligent Manslaughter manslaughter Def, who while committing an unlawful act, killed someone, like throwing a beam off a house and it hitting someone...manslaughter. Misdemeanor- Manslaughter Accidental deaths occur while the def is committing a misdemeanor. Similar to Felony Murder Rule. Even misdemeanors that are not inherently dangerous can be used as predicate to manslaughter charge. Rape Common Law Def: MensRea: Carnal knowledge of a woman forcibly and against her nonnegligent will. to be acquitted Prosecution has to prove: MPC: 1.Def had sexual intercourse with a woman not his wife.

Law of rape must be modernized. Does not use sex-neutral terms. Retains marital immunity. Needs prompt complaint and corroboration of allegation and provides mistake of age defense. Most states have not adopted the MPCs proposed def. for rape. 1.Expands before that can constitute rape- sex penetration, vag, 9

Recklessness std. UK: Specific intent rejected in fav o recklessness. MA: if no consent, mens rea is strict. Fraud-Induce Not rape Fraud-Fact Rape.

2. Using physical force/threat of force 3.Without her consent or 4. With a victim who could not consent because unconscious, mentally disabled, youth, or 5. Fraud in the factum. General Intent offense: is guilty of rape if he possess a morally blameworthy state of mind vs. female lack of consent. Spousal Immunity Man no rape wife. Consented by marriage to have sexual relations with husband. Property. Force: Consist of physical compulsion or violence beyond penetration itself. Some jdx require women to forcibly resist. But most require only reasonable resistance. But 1. Put victim at greater risk of injury 2. Allows man force until woman physically resists. Threats of Force No req proof that def used force/victim resisted when def threatened victim with serious harm. Must be reasonable fear of harm. Threats of economic harm, damage to reputation, nonviolent intimidation no satisfy. Consent Woman consented to sex relations using words. Saying NO. Sometimes in situations when unable to legally consent such as a minor, unconscious, or mentally incompetent, physically helpless. Fraud in the inducement: Not rape by fraud if the vic. Was understood that she was having sex. Fraud in the factum: Such as gyno doing exam and insert penis instead of med. Equipment.

oral, anal. 2.Provides degrees for rape. 1st and 2nd degree and gross sexual imposition. 3. Focuses on actors behavior than internal thought processes. Essential: force or threat of serious physical harm by def. Nonconsent/resitstance are not elements. Second Degree Rape 213.1(1): anyone who compels the victim to have sexual intercourse by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone 1.sexual intercourse 2. by a man with a woman not wife 3. by force 4. by threat of serious physical harm. without her knowledge (drugs or other means to impair her) or based on unconscious female or under 10 years old. Forcible compulsion: 3121(1): physical force or violence but also moral, psychological or intellectual force used to compel a person to engage in sexual intercourse against that persons will. First Degree Rape: Actor inflicts serious bodily harm on anyone , not previously permitted him sexual liberties. Gross Sexual Imposition 213.1(2) Intercourse with someone not wife: 1.compels her to submit by any threat that would prevent resistance by a woman of ordinary resolution (loss of job.) 2. knows that she is so mentally impaired that incapable of appraising the nature of her conduct. 3. unaware that a sexual act is being committed upon her or that she mistakenly believes the actor is her husband. 213.6 Mistake to Age Stat. Rape Being below the age of 10, no defense to not knowing the age. 10

Modern Rape Law

Actus Reus: Penetration. Mens Rea: none specified. Defs belief that the woman was consenting, if unreasonable, negates knowledge of non consent. Also only req. prove that def was reckless as to victims nonconsent. Extension of the law to specified forms of nonforcible, but nonconsensual sex intercourse. Some states divide into degrees. Force: seek to define level of force necessary. Def to use physical force that subdues victim or threat of death/serious harm to them or 3rd party. Addl Force: Forcible compulsion NY: use of physical force/threat of serious harm. CA: rape conviction can be obtained even in cases where the def does not use additional force and victim does not resist, provided victim honestly and reasonably fears immediate unlawful bodily injury. Inherent Force Not usually beyond that necessary to accomplish the proscribed sexual act. Like M.T.S. unauthorized penetration was enough. But in MINORITY of Jdx. Threat of Force Must be threat of physical harm to the victim or a third person that is sufficient to create fear in a reasonable person. Resistance by Victim: states no longer req. resistance. Reduce significance of rule, requiring only degree of resistance that was reasonable under circumstances or sufficient to indicate lack of consent. Consent Permit a mistake defense but only if the def can show he honestly and reasonably believed the victim had consented. Rape in 1st Deg: rape in commission of another felony like deadly weapon, or infliction of serious injury on victim.

Under 10, Strict Liability for Stat R if another limit about 10 years old. Prove by proponderance of evidence that he reasonably believed her to be of age. 213.1(1) Male is guilty of rape if acting purposely, knowingly or recklessly regarding material elements of offense, he has sex with female under following: 1 Female is less than 10 years old 2 female is unconscious 3. Compels female to submit by force or threatening her or another person with imminent death, grievious bodily harm, extreme pain or kidnapping or 4 he administers or employs drugs/intoxicants in manner that substantially impairs females ability to appraise or control her conduct. DOES NOT REQ PROOF OF RESISTANCE Statutory Rape Does not recognize statutory rape, although it does punish sexual intercourse by a man with female less than 10 years of age if he knew or should have known the females age.


Attempt, Inchoate Crimes

Rape Shield, MI: highly protective std. Expressly forbid or severely limit such an inquiry. Attack womans character. Protect complainants sexual history except sex history involving . Statutory Rape: Strict liable unless (CA which requires the requisite mens rea) 12 years and younger; intercourse with older girl with substantial age difference. Def: punishes a def because he intended to commit a particular crime and took a significant step to commit it. Some states make what would ordinarily be considered an attempt into a completed offense. Attempt is specific intent of offense, even if the substantive crime is general-intent. Mens Rea: intent to commit the target crime. Attempt does not require successful completion of a crime. Attempt is a specific intent crime, def must also intend: do the act 2. to accomplish the result 3. under the same circumstances that would be required for conviction of the target offense. Intend the Act Cannot commit an attempt recklessly or negligently. Intend the Result Def must intend the result. Intend the Circumstances Def must know the circumstances of the target offense, even if strict liability applies. If adult before sex with minor (thinking kid was 18), he could not be convicted of attempted stat rape because he did not intend the juv. to be under 16. Actus Reus: No punishing of thoughts. Last Act Favorable to def. Only after has the actor taken the last step were out of control could the law punish him for attempt. Preserves a max opp for the actor to change his mind, req strong evidence of criminal intent.

Very specific, MPC 5.01 A person commits an attempt under the MPC if, 1) purpose to commit the target offense and 2) conduct constituting a substantial step toward the commission of the target offense. He purposely does an act and purposely causes (or believes he will cause) the result under the same circumstances required by the target offense. Mens Rea Conduct requires the def must purposely engage in all elements of conduct made criminal by the crime attempted (5.01(1)(a)) and believes the result will occur. Result: Permits conviction for attempt if the def acted with the purpose or belief that his act would cause particular result. (5.01.1(1)(b)). Circumstance: Whatever mens rea toward circumstances is required by the target crime will also be required for an attempt under the MPC. Actus Reus Actor must take substantial step before she can convicted of an attempt. Sub Step: strongly corroborative of the actors criminal purpose. 5.01(2) Indicators of s conduct: lying in wait, searching for the victim, reconnoitering the crimes scene, unlawfully entering a building where def contemplated committing the crim, possessing tools or instruments necessary for committing the crime near the rime scene,. Focuses on what def has done rather than what remains to be done. Can use diaries and other proof relevant to actors state of mind. Attempt to Aid: 5.01(3): can be convicted of crim attempt, although a crime was neither commited nor attempted by another if: 1. purpose of conduct was to aid in commission of offense. 12

The Equivocality Test Actus reus of attempt should by itself unquestionably show that actor is trying to commit a crime. Fav to defs. Physical Proximity Test Did not req the def to take the last step or to do an unequivocal act before an attempt had been committed. Allow jury to weigh several factors, like seriousness of offesnse, community resentment, closeness in space/time. Probable Desistance Act that would normally be sufficient to result in the commission of a crime but for the intervention of outside person or event is sufficient for actus reus of crime. Dangerous Proximity: attempt occurs when s conduct is in dangerous proximity of success/ when act so near to result that danger of success is great. Indispensable element test: attempt occurs when has obtained control of indispensable feature of crim plan. Abandonment: CL does not permit this defense. If applies, only if voluntarily and complelely renounces his criminal purpose. Does not apply if motivated by unexpected resistance, absence of instrumentality or if postpones until a better opportunity.

2. assistance would have made him accomplice under Codes Complicity statute if offense had been committed/attempted. Abandonment: not guilty if 1) abandons effort / prevents it from being committed (2) his conduct manifest complete and voluntary renunciation of crim purpse. 5.01(4).


Defenses + Crimes involving Other People

Self Defense Justification: focus on the nature of the conduct under the circumstances. 1.Threat of 2. imminent, unlawful 3. (serious) bodily harm, 4. To which there are, or appear to be, no available alternatives to the def except the use of force. (5? Nonculpability on the part of the def in bringing about the situation) Imminence Sounds in necessity. Def must take any and all escape routes available before taking human life. Preemptive Strikes Must be threatened imminent. Most likely a separate idea. Retreat Imminence/no alternative req in common law. 1.Prevention of a felony 2. homicide se defendendo.(excused but not justified) Exception: need not retreat in, or from, his own home (no doubt a residue of the home as a castle view). Secure areas: castle/work. Proportionality Req that def use no more force than necessary to repel the aggressor. Whether deadly force is necessary depends on factors: size between, ability to retreat by each actor. Deadly force may not be used to combat an imminent deadly assault if a non-deadly response will apparently suffice. Mistake/Reasonableness Based on reasonable appearances, than objective std. Justified in using force to protect himself on subjective belief it is necessary. Courts are trying to bring in reasonable person in defs position standard. Factors: physical movements of potential assailant, relevant knowledge about person, physical attributes of all ppl involved, prior experiences to provide reasonable basis. Imperfect Self-Def: unreasonable but honestly held belief would reduce the killing to manslaughter. 3.04(1): Person justified in using force upon another person if believes force is immediately necessary to protect himself vs. unlawful force by other. Specific situations in which deadly force is justifiable. When believes that such force is immediately necessary to protect himself on the present occasion vs: 1. Death 2. serious bodily injury 3. Forcible rape 4. Kidnapping. Prohibits: use of deadly force by deadly aggressor. (provoked use of force v. himself in the same encounter) 3.04: Retreat is required before deadly force may be used except at Ds home or place of work, unless he was initial aggressor, but only where the def knows he may retreat in complete safety. Broadens the notion of imminence and also enlarges notion of when an occasion occurs or ends. Actual defs honest belief as sufficient to allow the claim. Imperfect Def. Allows when asserts a justification defense evaluated in terms of subj. belief in the necessity of using force. 3.09(2): when is negligent/reckless to facts relating to justifiability of his conduct, justification is unavailable to him in a prosecution for an offense for which recklessness or negligence suffices to establish culpability. 14

Aggressor: Withdrawal Aggressor cannot claim their protection as long as the initial aggression has not ended. But if aggressor withdraws clearly stating or moving himself. Not Unlawful Aggressor Defensive force can only be used against unlawful force. The courts allow def to defend themselves in a situation where the force may be lawful (such as killer who is insane, or woman driving a car having a seizure) Battered Wives: Confrontational: BW kills partner during battering incident. SD always allowed. NonConfrontational: BW kills abuser while asleep or lull. Majority: SD not justified. Risk to Innoncent Bystanders Apply transferred-justification doctrine. s right of SD from intended to actual victim. If is wildly or carelessly attacking, and jeopardizes safety of known bystanders, then can be guilty of manslaughter (or reckless endangerment if no one dies). Defense of Others Use of force justified if it reasonably appears necessary for protection of 3rd party. A sees C beating up B, A may come to Bs defense and use the same amount of force as he would use to protect himself. But if A is mistaken and C is a) responding to Bs initial aggression or b) a police officer arresting B. States divided on the result. Alter Ego Rule: Must likely exculpate A if found to be reasonable intervention. Definition Def must act with specific intent that another person commit a crime and have enticed, advised, incited, ordered, or otherwise encouraged the person to commit a crime.

Risk to Innocent Bystanders justifiably used force and bystander dies: SD. If was reckless/negligent in use: No SD in prosecution for recklessness or negligent as to the bystander.


Under 5.02(1): with the purpose of promoting or facilitating its commission he commands, encourages or requests another person to engage in specific conduct that would constitute such crime or an 15

Solicitation is complete upon communication of the solicitation to another. Not necessary: 1. Person solicited to agree to crime (no need to agreed) 2. Crime doesnt have to be attempted/committed. Some states req: must offer something of value to show seriousness. Punishment: a solicitor will be responsible for any solicited crime that is committed or attempted by person he solicitated. Common law would treat solicitor as an accessory before the fact. Modern principles: he would be an accomplice. Mens Rea: specific intent crime. Must intend that the individual solicited commit a crime. specific intent to conduct, results, and circumstances. Not guilty of solicitation unless he intentionally commits the actus reus of the inchoate crime. DEFENSE: LEGAL IMPOSSIBILITY A person does not commit soliciation if encouraging another to do something that is not a crime. Ex: Individual, who believes it is a crime to dispense birth control info, and encourages another to do it. Not Solicitation. DEFENSE: FACTUAL IMPOSSIBILITY Seldom occur in cases. Law not concerned with how the crime was to be committed or if committed successfully. Due to facts or conditions unknown to the solicitor, crime cannot be committed.

attempt to commit such crime or would establish his complicity in his commission or attempted commission. Felonies or misdemeanors, ANY CRIME. Mens Rea: Def must command, encourage, or request another to a) commit a crime b) attempt to commit a crime c) become an accomplice in the commission of or attempt to commit a crime. Provided it was designed to be communicated ( 5.02 (2)) Defense: Impossibility Legal Imp: No conviction in cases of true legal impossibility. Not enough that there is a desire to commit a crime. Fact Imp: assess the Defs responsibility based on facts he thought it was present. Abandonment: 5.02 (3): affirmative defense for charge of solicitation. Two requirements: 1. def must either persuade the person solicited not to commit the crime or prevent its commission. 2. Renunciation must be complete and voluntary. Must be sincere change of heart, not pressured decision.

ABANDONMENT No decision. Solicitor prob would have to communicate his change of heart to the person solicited. + ensure that crime not committed. Punishment: Solicitor will be liable as an accomplice most likely not in favor of its use. for the crimes committed by the person solicited (crimes must be committed) Solicitor cannot be punished for both solicitation and 1) the crime solicited; 2) an attempt by the person solicited 3) conspiracy with the person solicited to 16

Accomplice Liability

commit that offense. 1.07(1)(a), 1.07(4)(b), and 5.05 (3). Person can only convicted of Article 5 offense: attempt, solicitation or conspiracy. Two ways of aiding someone else commit a crime: Considers all actors, except those involved after the 1. Physical Aid. Help yield a gun or drive the getaway car. commission of the crime, as equals. 2. Psychological Aid: the def can encourage or reinforce the primary Code rejects Natural and probable consequences. actors decision to commit a crime. Held liable under Code for acts that he purposefully 3. assistance by omission (if a duty exists to act) commits. 2.06 (1) : def is guilty of any offense committed by Depends on the P committing a crime, because the accomplice cannot his own conduct by his own voluntary act and mens be convicted at common law because of the absence of a guilty rea. principal. 2.06 (2): an actor is legally accountable for the conduct of another when: a) P uses an innocent Felony Murder: makes all members of the joint venture responsible agent or irresponsible person to engage in the for a murder committed by a joint venturer in furtherance of the criminal conduct. b) legislature enacted a special law felony even though they might not have helped commit the murder. making one person liable for the conduct of another. c) Actor is an accomplice of another. Causation is not the basis of accomplice liability. One may be found 2.06(3): spells out when someone is an accomplice: guilty as an accomplice even though his actions do not satisfy but i) def solicits another to commit a crime, then the def for causation. is also responsible for the crime. ii) person aids or Activities: aiding, abetting, encouraging, soliciting, advising, and agrees or attempts to aid another in planning or procuring the commission of the offense. committing a crime, he is responsible for the crime Derivative in nature: may be convicted o any offense committed by committed by the other person. Primary Party with As intentional assistance. iii) if the duty to prevent Ps crime but fails to act. + liability for natural and probable consequences. Definition: to be an accomplice the actor must act with the purpose of promoting or facilitating the Innocent agent: commits crime but lacks capacity to commit or mens commission of an offense. 2.06(3)(a) rea for the crime or is fooled. Mens Rea: A must act with at least the same mens rea or culpability Conduct: The accomplice must have as her purpose required for conviction of the offense committed by P. that P will engage in the conduct elements of the If the object offense reqs a specific intent, A must have that specific object crime. Knowledge to Ps conduct is an intent. insufficient basis for responsibility. Conduct: Require the accomplice to act with the purpse or intent to encourage or assist in the conduct element of a crime. Recklessness/Negligence as to Result: A must act with the same Circumstances: Depends on the courts. Whether purpose as to circumstances is required for conviction or simply the same culpability or mens rea toward 17

mens rea toward result as is required to convict P of the object crime. A may be convicted of being an accomplice to that offense if the prosecution can show A also acted with recklessness toward this result. Strict Liability: If A assists P in committing a strict liability offense, can A be convicted as an accomplice? In theory, answer should be yes. A acted with the purpose of aiding P engage in conduct that constituted the offense. Courts find the reach of strict liability through doctrine of complicity to be unfair. UNLESS he knows the facts that constitute an offense. Providers of Goods and Services Providing goods or services with knowledge that another intended to use them to commit a crime established accomplice liability. Most jdx: permit conviction only if the prosecutor can prove that the def acted with a purpose to aid. Liability for Unintended Crimes Committed by the Principal A should have reasonably foreseen or that were a natural and probable consequence of the offense that A intended to aid. How much Aid is enough? Any Aid. A will be found guilty if his help was useful in any way to P. A will still be guilty as long as his aid had some minimal effect on Ps being able to commit the crime. Withdrawal of Aid A could avoid criminal responsibility if she withdrew her aid before P committeed the offense. A must 1) inform P not to commit the offense and 2) do everything possible to render ineffective any aid she has already given. if A had encouraged P to commit the crime, she mustr ty to discourage P. A must take these steps in sufficient time to prevent P from committing the crime. A takes fault to the full extent of P but can be charged for a greater

circumstances as is required for the object crime. Result: Requires the same culpability or mens rea toward result as would be required for conviction of P for the object offense. 2.06(4) Providers of Goods and Services Must prove that the actor had the purpose of promoting or fascilitating the commission of the crime. 2.06(3). Purpose to aid is still required. Liability for Unintended Crimes Committed by the Principal Does not permit responsibility to be imposed on A because of negligence toward unanticipated crimes committed by P. A cannot be convicte of crimes that were the natural and probable consequence of the crime A did ntend to assist. MPCs culpability reqs for the conduct and result elements must be met. Legal Duty A person who has a legal duty to prevent the commission of the offense is responsible for that offense if he fails to make proper effort to prevent. 2.06(3)(a)(iii). How much aid? Takes a broader approach. A person is an accomplice of another if she aids or agrees or attempts to aid such other person in the planning or committing the crime. 2.06(3)(a)(iii). An attempt at providing air is sufficient for accomplice responsibility even if it is unsuccessful. Withdrawal of Aid 2.06(6)(c): permits an accomplice to withdraw previously provided assistance and avoid criminal responsibility already incurred. To accomplice an effective withdrawal, A must terminate his complicity 18

offense if he has a higher mens rea. Punishment: Liability of 2nd party to Primary Accessory could not be convicted of crime in which he assisted until P was convicted usually can not be convicted of a more serious offense /degree of offense that that which P was convicted. BUT Modern RULE: accomplice liability is derivative, must be proof at the accomplics trial of principals guilt. An accomplice or accessory may be convicted of more serious offense than is proved against P.

Duress Excuse Def.

Required: 1. a well-founded fear generated by only REASONABLE fear. And police cannot protect. 2. a threat from a human being of 3. an imminent (immediate) 4. serious bodily harm or death no threat to property 5. to himself (or sometimes to a near relative) 6. not of his own doing. Imminence: one of fact, not law. Reasonableness of Fear: Only a reasonable fear is sufficient to sustain a claim of duress. Law reqs a defs belief that the police cannot protect her be reasonable. Creating Conditions of Duress Def must not have been responsible for the threat. Duress/Homicide Def could not claim duress if he killed a victim.

before P commits the offense and do any one of the following: 1. Completely deprive the aid of its effectiveness or 2. Give timely warning to the police, or 3. Make proper effort to prevent the commission of the crime. Punishment Under the MPC an accomplice is graded based on the conduct committed by P and the culpability of A. The MPC allows differential punishment for P and A. Abandonment: if terminates before crime is committed and a) neutralizes his assistance, b) gives timely warning to police of impending offense; or c) attempts to prevent the commission of the crime. 2.09: Threat must be one of personal injury rather than property damage. Threat involved would have similarly affected a person of reasonable firmness in the defs situation. 1. Duress is a valid claim in all prosecutions including homicide. 2. No restriction to imminent harm 3. Threat is to a third person: no req that the person be a relative, or even an acquaintance, of the def Allows a threat of unlawful force to support duress, thus allowing the threat of minor physical harm. Requiring the threat involved would have similarly affected a person of reasonable firmness in the defendants situation. Code disallows the defense if the def recklessly placed himself in the position where he could be duressed. A claim of necessity or lesser evils which it calls justification. 3.02(1). conduct is necessary to avoid harm or evil to himself or to another is justifiable if: (a) harm or evil sought to be avoided by conduct is 19


Required: 1. a threat of 2. imminent injury to the person or property 3. for which there are no (reasonable) alternatives except the commission of the crime.

4. The defendants acts must prevent an equal or more serious harm 5. The def must not have created the conditions of his own dilemma. Had to emanate from NATURAL FORCES and not from human begins. CHOICE OF EVILS: is threatened with serous harm and chooses (to the extent that one chooses) to inflict harm in away that would otherwise be deemed criminal. If harm chosen < not acting = Social benefit. Lesser evil chosen. If the def create the conditions of his own necessity the common law denied the claim. Necessity does not require a threat of death or serious bodily harm (Duress does). No inherent reason to restrict necessity to threats against life or person. Justificatory Claim Def actually achieved, or intended to achieve, a greater good (or less harm) than he committed. Excuse Claim was not morally blameworthy in choosing, in extremely severe and pressing circumstances, a path that at the time looked reasonable, even if it a) was not in fact reasonable b) did not result in a greater good. Legal insanity: permits inquiry into a defs capacity to know the law or to exercise free will. Focus: individuals characteristics. - A person is legally insane and not responsible for a crime if, as a result of mental illness, her cognitive or volitional capacity was seriously impaired when she committed the offense. Assumes Criminal can withstand trial UNLESS evidence not. Impose this burden of proof on def by a preponderance of the evidence.

greater than that sought to be prevented by law. (b) Neither Code nor other law defining offense provides exceptions/ defenses dealing with the specific situation involved. (c) Legislative purpose to exclude justification isnt provided. Code rejects Comlaw restrictions. A. Does not require that the actual infliction of the harm be imminent B. Does not distinguish between threats from human vs. non human forces. C. Does not restrict the claim to instances involving a threat of death or serious bodily harm. if reckless or negligent in placing himself in the position where the necessity occurred, he may still raise the claim in all instances where he is charged with a purposeful or knowing crime. May be prosecuted for a reckless or negligent crime.


MPC: requires that def must be competent before he can be tried. 4.04: No person who as a result of mental disease or defect lacks the capacity to understand the proceedings against him or to assist in his own defense shall be tried, convicted or sentenced for the commission of an offense so long as such incapacity endures. You are not responsible for your 20

Disposition of an Incompetent Def If not understand what a crim. trial than cannot be tried. Instead, the govt may release him if he is charged with a minor offense or commit him to a mental health facility where he may be treated to restore his competency to stand trial. A person found not guilty by reason of insanity: may be committed to a secure mental health facility indef., even beyond the max term for which she could have been sentenced if found guilty. A def initially found NGRI must be released if not longer mentally ill or dangerous. Execution: prohibit the execution of an individual sentenced to death if, at the time the death sentence is to be carried out, he is mentally ill and does not comprehend why he will be executed. Defense of Insanity: at the time of the alleged defense must have been shown with mental illness. Mental health expert will have to confirm this before trial. MNaughten Test: Focus on Cognitive disability. Excuses a def from criminal responsibility if, at the time of the crime, he was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know what he was doing was wrong. Req. that the def to be out of touch with reality and not accurately perceiving the world around him. Irresistible Impulse Test: broadens MNaghten to include mental illness that affect volitional capacity. 1. acted from irresistible and uncontrollable impulse 2. unable to choose between right and wrong behavior 3. Will destroyed and actions beyond his control. Federal Insanity Defense At the time of the commission of the acts constituting the offense, the def, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or wrongfulness of his acts. Tougher than the MNaghten Test.

conduct if your mental disease causes you to lack the substantial capacity (1) to appreciate the criminality or wrongfulness of your conduct, or (2) to conform your conduct to the dictates of the law. 4.01. No definition, but excludes psyopathic or sociopathic personalities as such individuals were generally known when the MPC was adopted MPC terms more broadly to include recently recognized diagnoses of mental disorder, and volitional impairment. MPC allows for new types of mental disorders. MPC does not require complete inability to know or to choose. If his impairment is substantial Objections: too much room for experts to recognize new kinds of mental illness that can excuse individuals from criminal responsibility. individuals capacity for self-control or measure the extent of that impairment.



Inchoate crime because it permits the police to arrest those who have agreed to commit a c rime long before they actually carry out their agreement. Definition: Agreement of two or more individuals to commit a criminal or unlawful act or a lawful act by unlawful means. One conspirator must take an overt act in furtherance of the conspiracy before the crime is committed. One conspirator must take a substantial act, pushing the threshold of criminality much closer to target offense. Conspiracy complete on formation of unlawful agreement. Most jdx: require proof of commission of overt act in furtherance of conspiracy. Included any act that was unlawful or against public policy or even lawful acts committed by unlawful means. CA: defines conspiracy as an agreement of two or more people to commit any act injurious to the public health, to public morals Mens Rea: specific intent offense, requiring two or more persons 1. Intent to agree and 2 intend that object of their agreement be achieved. Punishment and Grading Conspirators could not be punished both for conspiracy and the target offense. In most jdx, it is a separate, substantive offense. LexisNexis: offense of conspiracy does not merge into attempted/completed offense that was object of conspiracy. Conspirators can be 1) convicted of both the crime of conspiracy and of target crimes actually committed in furtherance of the conspiracy and 2) sentenced to consecutive sentences for both conspiracy and the target offense. Set the punishment at some term less than the object crime or follow the MPC. Sanction for conspiracy corresponded to crime so conspiracy to

Requires that the object of the agreement must be a crime for conspiracy to be committed. Most states have followed its policy choice and require that the object of the agreement be a crime. Definition: two or more persons conspiring to commit any crime together with proof of the commission of an overt act by one or more of the parties to such agreement in furtherance thereof. Four types agreement: Guilty if agree: 1. commit an offense 2. attempt to commit an offense 3. solicit another to commit 4. aid another person in planning/ commission of the offense. Requires: proof of an overt act only applies to crimes involving misdemnor or a felony of the 3rd degree. 5.03(5) Mens Rea: made with purpose of promoting or facilitating the commission of the substantive offense. Conspiracy does not exist: if one is aware, but fails to share, another persons crim. purpose. Punishment: At the same grade and degree as the most serious object crime, except that a conspiracy to commit a capital offense or felony of the first degree is punished as a felony of the second degree. Sanctions conspiracy to commit any crime other than felony of 1st deg at the same level as target offense. Multiple objectives like rape +steal, graded on most serious target offense. Merges conspiracy + object of conspiracy (or attempt 22

commit felony, is graded as felony. Most jdx: conspiracy to commit a felony is punished less severely than the target offense. Responsibility for Crimes Committed by Co-Conspirators Pinkerton Test Each co-conspirator is responsible for: 1. any reasonably foreseeable crime committed by a co-conspirator 2. in furtherance of the conspiracy. General awareness of the scope/objective of crim. enterprise Establishes vicarious liability for every member of a conspiracy for all foreseeable crimes. Prosecutor doesnt have to prove that the def intended to aid and abet or otherwise facilitate or encourage the commission of these crimes; she only has to prove that they were foreseeable. Each conspirator, by entering into the conspiratorial agreement, authorizes other members of the conspiracy to act as his agent to commit crimes necessary to implement their criminal objective. Each conspirator is responsible for these crimes. Establishes vicarious liability based on negligence, which is the lowest level of culpability. The prosecutor does not have to prove that the def knew or was reckless that his co-conspirator might commit specific crimes in furtherance of the conspiracy. She need only prove that the crimes were reasonably foreseeable. A conspirator may be convicted on a lower degree of culpability, negligence, than that often required to convict the person who commits the object offense. A person who joins a conspiracy is not responsible for crimes already committed by co-conspirators. Duration: terminates when all of its objectives have been achieved or when all of its members have abandoned all of its objectives. Mens Rea: specific intent crime. Def must intend to agree with someone else. Def must intend to commit the offense that is the object of the conspiracy. The def must intend that the group, or at

to commit target) unless proven that conspiracy involved commission of addl offenses not yet committed/attempted. MPC 5.05(1). considers a criminal group to be especially dangerous. Does not permit conviction for both conspiracy and the target crime except in rare cases. Conspiracy does merge into the target crime under the MPC. 1.07(1) (b). Once a criminal group has committed the object crime, the groups dangerousness should be measured by the same punishment as provided for the object offense. A def may be convicted of as many target offenses as are committed in furtherance of the conspiracy whether as perpetrator or accomplice. No Corrupt Motive Doctrine. Rejects Pinkerton. Co-conspirator must satisfy the MPC elements for accessorial liability 2.06 which are more narrow. Conspiracy by itself is not a basis for establishing complicity for all reasonably foreseeable substantive offenses committed in furtherance of the conspiracy. MPC: whether the def solicited commission of the particular offense or aided or agreed or attempted to aid in its commission. Majority of States, like NY, reject Pinkerton! 5.03(1): unilateral approach. 5.03(2): person knows that a person w/ whom he conspires to commit crime has conspired to commit the same crime, he is guilty of conspiring too with such persons, whether knows the identity or not. Duration: 23

least one member of the group, will commit all elements of the crime agreed on. REQUIRES HIGH MENS REA than the crime the parties agree to commit. Supplier of Goods: Intent of a supplier who knows of the criminal use to which his supplies are put to participate in the criminal activity connected with the use of his supplies may be established by 1) direct evidence that he intends to participate or 2) through an inference that he intends to participate based on, a) special interest in the activity or b) the aggravated nature of the crime itself. Corrupt Motive Doctrine: in cases where the actors did not know a critical fact that rendered their conduct unlawful . What if parties know all the relevant facts but do not know that their agreed-upon goal is a crime. -Doctrine: beyond the usual mens rea requirements, parties to an alleged conspiracy are not guilty unless they had corrupt or wrongful motive for their planned acts. Abandonment: Conspirator may avoid liability for subsequent crimes committed in furtherance of the conspiracy by his former coconspirators if he communicated his withdrawal to each coconspirator.

Continuing crime, beginning when the conspiracy is formed and ending when its criminal objective has been committed or when the agreement has been abandoned by the def and those with whom he has conspired. Abandonment: A conspiracy can be terminated for an individual def if he abandons the conspiracy by advising his coconspirators of his abandonment or informing law enforcement of conspiracys existence. Mens Rea: not as precise. 5.03 states only that the agreement must have been made with the purpose of protoming or facilitating the commission of a crime. Requires purpose as to the conduct and result elements to establish conspiracy regardless of what the substantive crime requires. if the target offense is the sale of narcotics, the def must act with the purpose of promoting or facilitating the sale of narcotics. Supplier: provider of goods/services must have the purpose of promoting or facilitating the commission of the crime. Abandonment: Requires the conspirator to not only renounce his criminal purpose but to also thwart the success of the conspiracy. Hybrid Legal Impossibility There is no defense of hybrid legal impossibility under MPC 5.01(1). Pure Legal Impossibility The Code does not expressly address the defense of pure legal impossibility.

Defense of Impossibility

Legal Impossibility: generally is a defense, but most jdx do not recognize legal impossibility as a defense. Factual Impossibility Factual impossibility exists when a persons intended result constitutes a crime, but he fails to consummate the offense because of an attendant circumstance unknown to him or beyond his control. Examples of factual impossibility are a pickpocket putting his hand in the victims empty pocket; shooting into an empty bed where the intended victim customarily sleeps; or pulling the trigger of an unloaded gun aimed at


a person. Inherent Factual Impossibility Although largely academic, the doctrine of inherent factual impossibility has been recognized as a statutory defense in at least one state (Minnesota). Where recognized, the defense applies if the method to accomplish the crime was one that a reasonable person would view as inadequate to accomplish the criminal objective. Pure Legal Impossibility Pure legal impossibility arises when the law does not proscribe the result that the defendant seeks to achieve. Hybrid Legal Impossibility Hybrid legal impossibility (or legal impossibility) exists if the defendants goal is illegal, but commission of the offense is impossible due to a factual mistake (and not simply a misunderstanding of the law) regarding the legal status of an attendant circumstance that constitutes an element of the charged offense, e.g., receiving unstolen property under the belief that such property was stolen, or shooting a corpse believing it is alive. Today, most states have abolished the defense of hybrid legal impossibility


Punishment and Grading for: An attempt, solicitation, or conspiracy to commit one of these crimes constitutes a felony of the second degree. [MPC 5.05(1)] Common Law Merges into the attempted or completed offense that was the object of the Solicitation
target offense. A solicitor will be responsible for any solicited crime that is committed or attempted by the person he solicited. Treat the solicitor as an accessory before the fact. Def cannot be punished both for solicitation and attempt based on the same conduct.

Model Penal Code

Punishes solicitation as severely as the crime solicited except that the solicitation of a capital offense or first degree felony is punished as a 2nd degree felony. 5.05(1) Though solicitor will be liable as an accomplice for the crimes committed by the person solicited (assuming the person solicited goes forward and commits these crimes). The solicitor cannot be punished both for solicitation and 1) the crime solicited; (2) an attempt by the person solicited; and (3) conspiracy with the person solicited to commit that offense. Solicitation is a lesser included offense to the crime solicited. A person can be convicted of only one offense attempt, solicitation or conspiracy- for conduct designed to culminate in the commission of the same offense. Rejects the common law natural-and-probable consequences rule. Thus, an accomplice may only be held liable under the Code for acts that he purposefully commits. An accomplice in the commission of an offense may be convicted of a crime, upon proof of its commission by another person, regardless of whether the other person is convicted, acquitted, or prosecuted. Furthermore, an accomplice may be convicted of a different offense or different degree of offense than is the primary party.[MPC 2.06(7)] The Code also expressly provides that a person who is legally incapable of committing an offense personally may be held accountable for the crime if it is committed by another person for whom he is legally accountable. [MPC 2.06(5)] Attempted: As with other inchoate offenses, the Model Penal Code sanctions a conspiracy to commit any crime other than a felony of the first degree at the same level as the target offense. [MPC 5.05(1)] If a conspiracy has multiple objectives, e.g., to rape and to steal, the conspiracy is graded on the basis of the most serious target offense. Target Committed: merges a conspiracy with the object of the conspiracy or an attempt to commit the target offense, unless the prosecution proves that the conspiracy involved the commission of additional offenses not yet committed or attempted. [MPC1.07(1) (b)]

Accomplice Liability (Complicity)

The accomplice may be convicted of any offense committed by the primary party with the accomplices intentional assistance. Most jurisdictions extend liability to any other offense that was a natural and probable consequence of the crime solicited, aided or abetted. An accessory could not be convicted of the crime in which he assisted until the principal was convicted and, with the limited exception of criminal homicide, could not be convicted of a more serious offense or degree of offense than that of which the principal was convicted.


Attempted: In most states, a conspiracy to commit a felony is punished less severely than the target offense. Target committed: Unlike the crimes of attempt and solicitation, the offense of conspiracy does not merge into the attempted or completed offense that was the object of the conspiracy.