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Elements of a crime: actus reus, mens rea, causation, and social harm 3. In practice: homicide and rape 4. General Defenses: when is conduct that leads to harm not criminal? 5. Attempt: when is conduct that does not lead to harm still criminal? 6. Accomplice: when is one liable for the criminal acts of another? FUNDAMENTAL QUESTIONS FOR CRIMINAL LAW 1. Why the criminal law? Why do we punish? What purposes does punishment serve? 2. Who should we punish? Who are the criminals? What is a crime? What is not a crime? What distinguishes blameworthy conduct from other non-blameworthy conduct? 3. How much should we punish?
1) UTILITARIANIST: a) Is this act a crime: step into shoes of person who is accused at time and moment of crimedid this person choose the path of lesser harm? focus on consequences; path of less harm; look forward cares about the past only to the extent it will impact the future b) If so, should we punish: step into shoes of sentencing judgeany purpose to punishing: punishment in itself is a harm, must be outweighed by a benefit (future goals) i) General deterrence: D is punished in order to convince the general community to forego criminal conduct in the future; object lesson to the rest of the community ii) Individual/specific deterrence: mean to deter future misconduct from D (1) Incapacitation (2) Intimidation: upon release, D’s punishment reminds him that if he returns to a life of crime, he will experience more pain. iii) Reforms/Rehabilitation: treatment as opposed to jail meant reform D c) How much? Punishment proportional if i) the greater the profits from a crime, the greater the punishment ii) the more aggravated crimes should have greater punishment to encourage minimization of crime iii) punishment should never be excessive 2) RETRIBUTIVIST: a) Is this act a crime: look at free will involved (look at context), if there was affirmative choice to do harm that person is morally culpable; dual premises: humans possess free will + punishment is justified when it is deserved b) If so, should we punish: i) Positive retributivist: always punish even if no societal benefit (if nuclear holocaust tomorrow kill everyone of death row); punish because person is guilty, they deserve it (culpable) (1) Assaultitive: deters private vengeance and send symbolic message of general deterrence; it is “morally right to hate criminals” right to hurt them back; treat criminals like “noxious insects to be ground under the heel of society” (Stephen) (2) Protective: criminals have right to be punished, restoring moral equilibrium btw criminal and society; Locke violating social compact; obligation/duty to punishpunish to restore equilibrium (Morris) (3) Victim-oriented: reaffirms the value of value of victim and restores equilibrium between criminal and victim; room in the criminal law for forgiveness and mercy (Hampton) ii) Negative retributivist: before punishmust make sure actually guilty; morally wrong to punish an innocent person even if society would benefit 1
c) How much? Proportionality i) Internal=moral culpability of wrongdoer vs. must be proportional when looking at this wrongdoer relative to all other wrongdoers; person v person; intentional v negligent (by mens rea) ii) External=social harm caused by crime (crime X vs. crime Y); (1) “eye for an eye” Kantian equality 3) GENERALLY: PROPORTIONALITY: How much? a) Federal Sentencing Guidelines b) Now moving toward discretion c) Persuasive Authority: other jurisdictions, scholarly treatises d) D’s burden to cast doubt: cast as many alternative theories 4) CONSTITUTIONAL REQUIREMENTS OF PROPORTIONALITY a) Generally: i) 8th amendment: is a factor for capital and non capital offenses; ii) Consider tests and views of justices; b) Capital/Death Penalty Cases: Two-Pronged Coker Test for Excessive and Unconstitutional Punishment: i) Whether the punishment makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering [U] OR ii) Is grossly out of proportion to the severity of the crime [R] (1) Determination: compares to other sentences within jurisdiction and outside jurisdiction; trying to gauge public sentiment (prongs 2 and 3 of the Solem test) iii) If punishment scheme fails either prongUnconstitutional c) Non Death Penalty Cases: Ewing-Kennedy Test: Gross Disproportionality + deference to power of state leg i) Apply First prong of Solem, (gravity of the offense and the harshness of the penalty) and if it determines that the offense was “serious,” any penalty short of death sentence is proportional. ii) The other prongs of the test only come into play if the court determines that the offense at issue is petty and the sentence imposed is severe (grossly disproportionate). (1) Considerations: (a) Depends on how jurisdiction grades the crime and Δ’s rap sheet (i) Ewing court evaluating “three strikes” rule, Δ stole golf clubs but court says case not about shoplifting grand theft $1,200 + two previous “serious” crime convictions; (long rap sheet; 3 felonies-a.k.a. “serious” crimes; regardless that last felony is wobbler:$1,000; 25-years to life) 1. wobbler: can be a misdemeanor, can be felony depending on whether or not Δ has past history (priors); presumptive felonybut prosecutor has discretion to bump it down to a misdemeanor
Solem’s Three Factor Test of Proportionality 1. gravity of the offense and the harshness of the penalty; threshold factor must fail this factor to get to the rest 2. sentences imposed on other criminals in the same jurisdiction (what other crimes in this state received the same sentence as Δ did?) 3. the sentences imposed for commissions of the same crime in other jurisdictions
e. insofar as such criteria are not decisive. 6 precise and targeted purpose. but the provisions herein must be construed according to the fair import of their terms to promote justice and effect the objects of the law NY rejects lenity 4 . NY Statute: § 240.g.e. transportation facilities.g. but section 3: unconstitutional free speech issues (soliciting) 3.00: Penal law not strictly construed: MPC 1.35 Loitering a. The due process clause is not violated unless a law-abiding person would still have to guess as to the meaning of a statute after she or her attorney conducts research into the meaning of the law iii. Must establish minimal guidelines to govern law enforcement: insufficient notice when it is susceptible to enforcement in an arbitrary or discriminatory manner because police. disallowed by the courts as void for vagueness i. The discretionary powers conferred by the Code shall be exercised in accordance with the criteria stated in the Code and. First Amendment issues: i. ex post facto Article 1) 1. e.g. or juries inherently subjective (i. sections 1-3. no judicial crime creation.e.02 (3) (3) The provisions of the Code shall be construed according to the fair import of their terms but when the language is susceptible of differing constructions it shall be interpreted to further the general purposes stated in this Section and the special purposes of the particular provision involved. LENITY MPC 1. “may be merely the cloak for a conviction which could not be obtained on the real but undisclosed grounds for the arrest”) 1. bias in favor of the accused.STATUTORY CONSIDERATIONS THREE PRINCIPLES THAT GOVERN RELATIONSHIP BETWEEN LEG AND COURTS (5th and 14th amendment. innocent until proven guilty. forbids wholesale legislative delegation of lawmaking authority to police and prosecutors a. A statute can not withstand constitutional attack if it is “susceptible of application to speech. Statutes are strictly tested for certainty by interpreting their meaning from the face of the statutes b. Chicago’s street gang problem b. Ordinary statutes without First Amendment implications i. doesn’t explicitly accept or reject lenity NY rejects: The general rule that a penal statute is to be strictly construed does not apply to this chapter. Legality: nulla poena sine lege: no crime without law. Bill of Attainder.02 (3) (3) NY § 5. to further the general purposes stated in this Section. sections 4: upheld (cops show discretion for masked people). . or is found sleeping therein.. offense charged must be a crime 2. language was loitering with “no apparent purpose” depended on what was apparent to the officer 2. Lenity: strict construction: statutes interpreted strictly against the state. Lewis v. no punishment without law. states might turn to specific problems they face as a justification. and is unable to give a satisfactory explanation of his presence. that is protected by the First Amendment” Even is a person’s conduct in fact is not constitutionally protected. her conviction must be overturned if the statute could reasonably be construed to prohibit constitutionally protected speech or other conduct. could be applied by the police to attack entirely innocent activity. Morales O’Connor: fair notice requires sufficient definiteness. Void for Vagueness: statute must give sufficient warning that men may conduct themselves so as to avoid what is forbidden. Courts are much slower to hold an ordinary criminal statute-one that does not touch on fundamental constitutional rights-is unconstitutionally vague ii. although vulgar and offensive. e. i. section 7: person loiters or remains in any transportation facility. section 5: upheld involves schools c. courts. City of New Orleans c.
Otherwise resort to intent.S. during and in relation to any crime of violence or drug trafficking crime…uses or carries a firearm. i. (jurisdiction will give hints as to tools to use to decipher intent.00 does NOT adopt. …be sentenced to imprisonment for five years” ii. etymological origins of the term. Foster: statutory interpretation of the word “carry” i.02 3 ) 3. MPC does not explicitly accept or reject. on physical person “packing heat” iii. the court should adopt the constitutional one. prior versions of statute/existing common law at time of enactment 2. 2. Where all else is equal. placement and purpose of term in the statute. Majority: firearms within reach-not limited to carrying on person. Minimize the amount of times statute is found unconstitutional 4. 50-50 Rules of Statutory Interpretation a. shall. law dictionary. courts just give statute its plain and definite meaning. Transport v. dictionary. Plain Meaning: When the language is clear and unambiguous. the other unconstitutional. adopt the interpretation that favors the Δ over the state. v. policy purposes. MPC 1. lenity ALWAYS as LAST resort: NY Penal Law § 5. “Whoever. Criminal statutes must be strictly construed.e. APPROACHES TO STATUTORY INTERPRETATION: there is no hierarchy depends on the judge. Example: a. SOURCES FOR STATUTORY INTERPRETATION 1. argue all 1. Where a statute is susceptible to two interpretations. one constitutional. fallen out of favor. U. prior precedent on general statute. Legislative Intent: The intent of leg controls the interpretation of the statute. leg history of statute. Modern usage/popular understanding of term. 5 . supreme ct broad interpretation 3.a. Lenity a.
a. "Omission" means a failure to perform an act as to which a duty of performance is imposed by law. MENS REA. People v. that causes c. "Voluntary act" means a bodily movement performed consciously as a result of effort or determination. Possession as an Act. court focused on when Δ started driving as voluntary act(not the moment when he killed the kids). which excludes the prior voluntary movements 1. simply a muscular contraction. was carried outside home and acted loud & boisterous. spasms. social harm d. 2. CAUSATION. Narrow time-framing: if the court wants to the Δ to escape responsibility. and bodily movements while the actor is unconscious or asleep b. VOLUNTARY ACT a. external signs of crime Mens Rea: intent. and includes the possession of property if the actor was aware of his physical possession or control thereof for a sufficient period to have been able to terminate it. epileptic seizures. court went back further in time to locate voluntary act. Act of operating the vehicle in reckless manner. it is sufficient that the Δ’s conduct included a voluntary act i. State VOLUNTARY ACT MPC § 2. Broad time-framing: if the court wants to convict a Δ who acted involuntarily at some point during the commission of the offense. voluntary act b. it will construct a narrower time frame. (b) a bodily movement during unconsciousness or sleep. Martin v. AND SOCIAL HARM Actus Reus: refers to physical. 4. Policy: four kids killed. but appellate court reversed a. (1) A person is not guilty of an offense unless his liability is based on conduct that includes a voluntary act or the omission to perform an act of which he is physically capable. COMPONENTS a. a bodily movement. (3) Liability for the commission of an offense may not be based on an omission unaccompanied by action unless: NY Penal Law § 15. but voluntary act. Time Framing: the prosecution need not show that every act. (c) conduct during hypnosis or resulting from hypnotic suggestion. Δ voluntarily drank at home. "Act" means a bodily movement. someone who had a history of seizuresoutcome driven. either conscious or habitual. trial court presupposed voluntary act that was not explicitly there. 6 . (d) a bodily movement that otherwise is not a product of the effort or determination of the actor. excluding reflexive actions. "Conduct" means an act or omission and its accompanying mental state. what is the person’s thoughts regarding the possibility of harm ACTUS REUS: 1. (2) The following are not voluntary acts within the meaning of this Section: (a) a reflex or convulsion. definitions of terms 1. mental will over social harm. Policy: cannot be established by proof that the Δ was involuntarily and forcibly carried to public place by arresting officer. + attendant circumstances 2. 3. Decina ii. mental/internal signs of crime. it will construct a time frame broad enough to include some remote. was voluntary in order to establish criminal liability. 1. Δ had a seizure while driving and killed four kids. or even that the Δ’s last act.01 Requirement of Voluntary Act. Defined: i.00 Culpability. Omission as Basis of Liability.ELEMENTS OF A CRIME: ACTUS REUS.
(a) the omission is expressly made sufficient by the law defining the offense; or (b) a duty to perform the omitted act is otherwise imposed by law. (4) Possession is an act, within the meaning of this Section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.
5. "To act" means either to perform an act or to omit to perform an act.
§ 15.10: Requirements for criminal liability in general and for offenses of strict liability and mental culpability The minimal requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform an act which he is physically capable of performing.
c. Why the acts requirement? i. allows people to have bad thoughts, so long as not acting on it ii. thoughts hard to prove iii. thoughts don’t harm iv. acts are deter-able v. society values individual freedoms and autonomy generally d. Omissions: criminalizing failure to act; (generally though, there is no duty to act) i. Generally requires six elements: 1. Voluntary omission (presumes ability to act) 2. Mens rea: (presumes knowledge of facts giving rise to duty and giving rise to risk of harm); generally weaker evidence of mens rea 3. Causation 4. Attendant circumstances 5. Social harm 6. Duty: created by common law or statute (e.g. No Texas law creating a duty Δ will get off, no matter how reprehensible his omissions were: People v. Billingslea)
ii. Why the extra element of duty: 1. “Non-doings” are ambiguous 2. Difficult line drawing 3. Well-meaning bystanders often make things worse 4. Issue of freedom
iii. Where are the Duties: 1. Status Relationship implied by common law (i.e. parents to children; spouses; 2. Implied or express K (i.e. lifeguards, doctors) 3. When You Create Risk (i.e. hitting & injuring pedestrian) a. self-defense doesn’t affect duty if actor knows victim will die 4. Voluntary Assumption & Seclusion (Misery) 5. Statutory Duties: criminal stats, family code (i.e. duty to pay taxes) iv. Good Samaritan Statutes: attempt to legislate morality? 1. Lack of mens rea 2. Uncertainty that will prevent harm 3. fear/self preservation
3. SOCIAL HARM a. Result crimes i. Social harm easy to identify: physically identifiable harm (murder, arson) b. Conduct crimes i. Potential harm; harm need not be physical, isn’t tangible (driving while intoxicated, conspiring to commit a crime); collective, heightened risk of death and injury increases; more like endangerment 4. ATTENDANT CIRCUMSTANCE: a. A condition that must be present, in conjunction with the prohibited conduct or result, in order to constitute the crime (the condition is what makes it harmful) i. E.g. NO person shall operate (voluntary act) a motor vehicle (attendant circumstances) while such person has .08 or more by weight of alcohol in the person’s blood (attendant circumstances) ii. A person is guilty of criminal homicide if “he purposely…” (mens rea) causes the death (social harm) of another human being (attendant circumstance) iii. Breaking and entering (voluntary act) a dwelling house of another at nighttime with the intent to commit a felony therein; (everything else is attendant circumstance)
MENS REA 1. WHAT IS THE DEFINITION OF THE MENS REA TERM? a. Broad “culpable” interpretation of mens rea: morally blameworthy state of mind; wicked motive i. Old common law approach
b. Narrow “elemental” interpretation: particular mental state required for in the definition of an offense
MPC: Mens Rea Terms § 2.02 General Requirements of Culpability Purposefully: A person acts purposefully with respect to a material element of an offense when: 1. If the element involves conduct or a result, it is his conscious object to engage in conduct of that nature or to cause such as result; and 2. If involves attendant circumstance: he is aware of the existence of such circumstance or believes or hopes that they exist Knowingly (willfully is synonym): 1.Element involves conduct or circumstances: aware that conduct is of that nature or that circumstance exists 2. If element is a result when aware that conduct is practically certain to cause such a result (e.g. Conley) NY Penal Code: § 15.05 Contrast with MPC Intentionally: A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct. second prong missing re; attendant circumstances Knowingly: A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists. leaves out result prong (conduct and attendant circumstance elements only); in the absence of sentence structure, etc. Recklessly: consciously disregards substantial and unjustifiable risk that material element exists risk is disregard of risk is a gross deviation (objective-law abiding person and subjective: that individual was aware and chose to disregard; “gambler Δ” ) Questions to ask: 1. was Δ aware of substantial and unjustifiable risk (don’t just take Δ’s word) Consider: a. gravity of harm, b. probability of harm c. cost of desisting from conduct 2. Is the awareness and disregard of such risk deserving of condemnation: was it a gross deviation? Negligently: when he should be aware of a substantial and unjustifiable risk that the material element the material element; failure to perceive is gross deviation (objective: reasonable person standard; “less aware”) Questions to ask: 1. Would a reasonable person would have been aware of a substantial and unjustifiable risk? 2. Is the failure to be aware of such a risk deserving of condemnation? Was it a gross deviation? Recklessly and Negligently: A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto. Criminal negligence: A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.
Common Law Jurisdiction
Intentional means everything MPC captures in purposefully and knowingl
Maliciously/Malice: MPC’s definitio purposefully, knowingly, recklessly (N and MPC do not include this as a men element)
Willfully: connoted evil motive; why did what they did; So mens rea won’t apply to attendant circumstances, bec it doesn’t change the fact that you’re doing some crime “culpability”
reasonable person standard objective and subjective “he is aware”; voluntary intoxicated addition; still broken down into result and circumstance Unlawfully: completely ignore; has been interpreted by courts as superfluous; what person is doing as a matter of fact is against the law
NY doesn’t say what should be read in…if the proscribed conduct necessarily involves such culpable mental state (use common sense) 2. presumption in favor of a scienter requirement: distribution of sexually explicit. intentional = conscious objective c. For each element then. attendant circumstance) ii. Application: i. receive. but precedes others. General rules: i. Court seeks to ascertain legislative intent and will interpret the statute in the manner that best gives effect to the legislative intent 1. clearly modifies conduct and result elements (transport. in which case the court may conclude that the mens rea element applies to a “forward.15 Statutory Construction (1) same as MPC applies to everything unless contrary purpose (2) when statute is silent: read in mens rea.e. receive or distribute in interstate or foreign commerce any visual depiction involving the use of a minor engaging insurance sexually explicit conduct. or distribute) 2. Categorize the type of actus reus element it is (conduct. Issue: whether “knowledge” modifies the attendant circumstance: that the person depicted in the videos was a minor. Some courts are reluctant to follow the most grammatical reading of a statute if such an interpretation would conflict with “background assumptions of the criminal law” 1. If the mens rea term follows an actus reus element.” 1. Understand what mens rea element means : i. that MR shall apply to all the material elements of the offense. a court may interpret this to mean that the word modifies ever actus reus element that follows it. earlier statutes on the same subject. knowingly. presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalize otherwise innocent conduct d.S. but non-obscene videos of adults is lawfulessential that government prove that Δ 10 . iii. graduated levels of harm: i. legislative intent. result crime.02 Statutory Construction (1) there will always be a mens rea element (3) if statute is silent: element is established if purposefully.” but not “backward” direction iv.MPC: § 2. U. set off by commas modifies within . Identify which mens rea applies to each actus reus element (sentence structure. recklessly shown (read in recklessness as required mens rea) (4) when the statute prescribes the MR that is sufficient for the commission of the offense. battery v.e. previous interpretations of the same or similar statutes ii. Excitement Video: “It is a felony to knowingly transport. If there is only one mens rea term and it is located at the beginning of the statute. when knowinglypurposefully suffices NY § 15. INTERPRETING STATUTES: a. v. Separate statute into mens rea and actus reus elements b. result. if recklessness is the standardknowing or purposefully also satisfies. sentence structure…if in the beginning: applies to all. i. in the middle: only modifies what follows) (5) if negligence is the standard: everything above standard will suffice (and so on for recklessness and knowingly). the common law as it was understood at the time it was enacted. unless a contrary purpose plainly appears (contrary purposes: legislative history. consider: legislative history of an act and the circumstances surrounding its adoption. aggravated battery) iii.
U. Without authorization e.knew of the underage status of those involved in sexually explicit activities. i. Alters. designate an intent to do a future act (commission of a felony therein. i. 1. punctuation (comma) c. damages…: f. or prevents authorized use of any such information. murder and battery (only mens rea that is in the statute) ii.S. ADDITIONAL MENS REA DOCTRINES a. Intentionally: b. Issue: whether government must prove Δ intended to damage or prevent information and thereby cause a loss 2. intended victim ducked) ii.000 or more.e. describe a specific mens rea for a particular attendant circumstance (i. larcey: taking and carrying away property with intent to steal) 2. Accesses: c. Federal interest computer: d. Statutory Elements: a. hate crime statutes) 3.e. Some crimes only have a general intent mens rea. Criticism: person could be charged with higher intent. actually kills C. pre-amendment version read: knowledge: decision to state scienter requirement only once ii. sentence structure (and).e. Legislative history and revisions i.” 1. General v. and thereby causes a loss of $1. why do some statutes include a second mens rea: 1. Specific intent offenses: designates a special mental state above and beyond the general mens rea relating to voluntary act. still deserves to be punished. No need for transferred intent because statute requires intent to kill a human being (not a specific human being) 11 . v. “receiving stolen property with knowledge that it is stolen”. describe a specific motive (i. Designed to target outsiders without authorization b. And thereby causes loss Mens Rea Actus Reus: Voluntary Act/Conduct Attendant Circumstances Attendant Circumstances Attendant Circumstances Social Harm/Result 3. don’t want people to get off because of sheer dumb luck (bad aim. A intends to kill B. iii. Important for mistake of fact in common law jurisdictions b. What is the mental state required for alters or damages… a. intentional modifies only a . treated as if he intended to kill two all along (utilitarian) iii. since it converted innocent conduct into criminality ii. Transferred Intent: classic legal fiction. (treat as a criminal who only intended to kill one person).d 3. and by means of one or more instances of such conduct alters. or destroys information in any such computer. Retributivist: A made an affirmative choice to kill a person. Morris: statutes punished anyone who “intentionally accesses a federal interest computer without authorization. knowledge that property is stolen=attendant circumstances) iv. General intent offenses: the mens rea that relates to actus reus element of voluntary act. damages. Specific Intent: i.
(3) Causal Relationship between Conduct and Result (2) When PURPOSELY OR KNOWINGLY causing a particular result is an element of an offense.03 (2).02 (6) When a particular purpose is an element of an offense. more definitive d. STRICT LIABILITY OFFENSES: crimes that definitionally do not contain a mens rea requirement regarding one or more elements of the actus reus a. in the case of negligence. of which he should be aware unless: (a) the actual result differs from the probable result only in the respect that a different person or different property is injured or affected or that the probable injury or harm would have been more serious or more extensive than that caused. only in the respect that a different person or different property is injured or affected or that the injury or harm designed or contemplated would have been more serious or more extensive than that caused. “your money or your life”) i. Intro: 12 .iv.g. Conditional Intent: MPC 2.e. or (b) the actual result involves the same kind of injury or harm as the probable result and is not too remote or accidental in its occurrence to have a [just] bearing on the actor's liability or on the gravity of his offense. Other view: mens rea isn’t limited in quantity v. as the case may be. more heinous deliberately protecting yourself ii. the element is not established if the actual result is not within the purpose or the contemplation of the actor unless: (a) the actual result differs from that designed or contemplated. or (b) the actual result involves the same kind of injury or harm as that designed or contemplated and is not too remote or accidental in its occurrence to have a [just] bearing on the actor's liability or on the gravity of his offense. consciously and deliberately avoiding knowing i. gambler iii. (3) When RECKLESSLY OR NEGLIGENTLY causing a particular result is an element of an offense. Knowledge and MPC: “awareness of a high probability of a existence of fact” about existing fact. NY: written into murder stats § 125. Does not transfer the intent to cause one type of social harm to another 1. e. the element is not established if the actual result is not within the risk of which the actor is aware or.00 i.g. the element is established although such purpose is conditional (e.g. Willful Blindness: deliberate refusal to find out a fact in face of a very high risk of its truth. Δ intends to kill one person and causes death of that person or a third person c. Recklessness: “conscious disregard of substantial and unjustified risk that material element exists or will result” avoid a substantial risk that something might be true in the future. intent to kill a dog (trespass-property). “I’d shoot you if the cops weren’t here…”) 4. Criticism on standards so close: jury standards should bee more clear. but actually kills a human. unless the condition negatives the harm or evil sought to be prevented by the law defining the offense (e. throwing a rock at a person accidentally breaks a window MPC: Transferred Intent 2.
05(1): When Culpability Reqs are inapplicable Culpability Reqs § 2. or welfare of a significant portion of the public a. This subdivision applies to offenses defined both in and outside this chapter. b. unless clearly indicating a legislative intent to impose strict liability. such as "with intent to defraud" and "knowing it to be false. recklessly or negligently. could gravely affect the health safety. Non-public welfare strict liability offenses: a.g. Supreme Court hasn’t required it 2. knowingly. or some element of an offense. or with respect to some or all of the material elements thereof. Interpretation when statute is silent i. no mental state associated with burglary attendant circumstance: “when the building is a dwelling” ii. should be construed as defining a crime of mental culpability. MPC: use reckless at least ii. There is an evident legislative policy that would be undermined by a mens rea requirement c. 2.02(1): General Requirements of Culpability NYPL § 15. requires a particular culpable mental state. rape.15: Construction of Stats with Respect to § 2.i. unless the requirement involved is included in the definition of the offense or the Court determines that its application is consistent with effective enforcement of the law defining the offense.05 (1) The requirements of culpability prescribed by Sections 2. Staples v. A statute defining a crime.01 and 2. do we interpret the statute to require knowledge or mens rea? 13 . That the standard imposed by the statute is “reasonable and adherence thereto properly expected of a person” d. as the law may require. such mental state is ordinarily designated in the statute defining the offense by use of the terms "intentionally. malum prohibitum: conduct although not morally wrongful." or by use of terms. The statutory crime is not derived from the common law b. 1. Often result in severe punishment b." describing a specific kind of intent or knowledge. a person is not guilty of an offense unless he acted purposely. Typically one element strictly liable: e. a culpable mental state may nevertheless be required for the commission of such offense. BUT Constitution does not mention mens rea. violators stigmatized even though no proof of fault c. That the conviction does not gravely besmirch 3. Except as provided in Section 2. That the penalty is small e. Although no culpable mental state is expressly designated in a statute defining an offense. United States: unlawful possession of unregistered firearm. it is presumed to apply to every element of the offense unless an intent to limit its application clearly appears. Involve conduct malum in se. malum in se: conduct inherently wrongful: murder.02 do not apply to: (a) offenses that constitute violations. Strong Presumption Against Strict Liability in Common Law 1. arson (not typically strict liablity crimes) 4. Controversial: e. if the proscribed conduct necessarily involves such culpable mental state." "knowingly." "recklessly" or "criminal negligence. When the commission of an offense defined in this chapter. § 2.02 (1) Minimum Requirements of Culpability. NYPL: use common sense “when conduct necessarily involves such culpable mental state” iii. When one and only one of such terms appears in a statute defining an offense. Blackmun’s factors that may overcome presumption against strict liability a. insofar as a legislative purpose to impose absolute liability for such offenses or with respect to any material element thereof plainly appears.g. Public Welfare Offenses: Pure Food and Drug Act.05. statutory rape MINIMUM MR REQUIREMENTS MPC § 2. or (b) offenses defined by statutes other than the Code. criminal stats based on public welfare concerns (often easily passes Blackmun’s test) 5. with respect to each material element of the offense.
might be willing to sacrifice the innocent to deter crime. 1. ownership of “innocent” lawful and commonplace devices would not put owner on alert 3. U: concern for social harm and deterrence outweighs lack of mens rea. Non-public welfare offense: statutory rape i. dissent: can’t appreciate riskso no real notice if mentally impaired.20(3) Effect of ignorance or mistake upon liability 3. Notwithstanding the use of the term "knowingly" in any provision of this chapter defining an offense in which the age of a child is an element thereof. Who is less than thirteen years old and the actor is eighteen years old or more. odd case: conservative majority abandoning plain text “writing in” mens rea 6.3 Corruption of Minors and Seduction AND STRICT LIABILITY NY Sex Offenses § 130. he or she engages in sexual intercourse with another person less than fifteen years old 130. (2) Grading.3 (1) Offense Defined. unless expressly so provided.30 A person is guilty of rape in the second degree when: 1.35 A person is guilty of rape in the first degree when he or she engages in sexual intercourse with another person: 3. 130. Being twenty-one years old or more.1. moral culpability ii. a defense to a prosecution therefor that the defendant did not know the age of the child or believed such age to be the same as or greater than that specified in the statute. or (d) the other person is a female who is induced to participate by a promise of marriage which the actor does not mean to perform. or (b) the other person is less than 21 years old and the actor is his guardian or otherwise responsible for general supervision of his welfare. or any person who engages in deviate sexual intercourse or causes another to engage in deviate sexual intercourse. § 15. If mistake defensepresumes mens rea element d.35 213. Δ held strictly liable even though mildly retarded and read on a third grade level. being eighteen years old or more. Supreme Court says: silence is not dispositive. Public welfare analysis: a. Narrow holding: not an attempt to delineate a precise line or comprehensive criteria. it is a defense for the actor to prove by a preponderance of the evidence that he reasonably believed the child to be above the critical age. Otherwise an offense under this section is a misdemeanor. is guilty of an offense if: (a) the other person is less than  years old and the actor is at least [four] years older than the other person. 130. 5. is this device so dangerous that a person would be alerted that legislature would make it strictly liable an that it is their burden to investigate the law b. some no deterrence because depends on lack of awareness on Δ’s part 14 . e.25. he or she engages in sexual intercourse with another person less than seventeen years old 130. R: against S-L: free will in decision making. common law presumption against strict liability 2. whether penalty is minimal or harsh c. 130. Strict Liability Debate: i. When criminality depends on the child's being below a critical age other than 10. purely statutory c. or reasonably believed the child to be older than 10. (1) Mistake as to Age. knowledge by the defendant of the age of such child is not an element of any such offense and it is not. Whenever in this Article the criminality of conduct depends on a child's being below the age of 10. impact on public welfare 4. or (c) the other person is in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over him. it is no defense that the actor did not know the child's age. § 213. not even capable of recklessness STATUTORY RAPE MPC: 213. An offense under paragraph (a) of Subsection (1) is a felony of the third degree. Dissent: distinguish between statutes derived from common law v. Who is less than eleven years old 4.25 A person is guilty of rape in the third degree when: 2.30. A male who has sexual intercourse with a female not his wife.6(1) Mistake as to Age.
Regina v. reasonable and unreasonable is a defense d.g. Navarro: larceny describes motive: taking property “with intent to steal”. Whether strict liability element if so. i. Ask: i. general intent element affected (Δ had no intent to break and enter)mistake must be reasonable Strict Liability No mistake is a defense General Intent Element A reasonable mistake is a defense Specific Intent Element Any mistake. Example: Δ intends to beat up brother who is in his house. BUT good faith required iii. What is the mistake? iii. if the facts had been as Δ believed them to be. If general intent elementwas the mistake reasonable? 2. but unintended. Δ mistaken as to age of victim (reasonably believed she was 18even though really 16) general intent: only reasonable mistake. There should be no exculpation for mistake where. What jurisdiction am I in? ii. he lacks the intent required in the definition of the offense a.e. no mistake ii. E. People v. Specific intent crime: if Δ in good faith believed he had a right to take the property. If specific intent element: a Δ is not guilty if of an offense if his mistake whether reasonable or unreasonable negates the specific-intent portion of the crime. Whether mistake concerns general intent element or specific intent element: 1. Prince. Was it a good faith/honest mistake? c. MISTAKE OF FACT a. Δ was entitled to an acquittal since the specific intent required to be proved as an element of the offense had not been established 2. his conduct would still be immoral iii. outcome i. Moral Wrong (common law only): essentially the intent to commit an immoral act furnishes the requisite culpability for the related. Δ defense of mistake: thought property was abandoned a. Common Law Test: i. One can make a reasonable mistake regarding an attendant circumstance and yet manifest a bad character or otherwise demonstrate worthiness of punishment ii. even though such belief was unreasonable.5. but court says act is still immoral 15 . Defense of mistake as complete defense to mens rea: b. Application: 1. but in rage Δ mistakenly enters another’s house offense: breaking entering a.
U Criticism: harm unaddressed: still sold drugs near school b. Does Δ truly believe in the alleged mistake of fact? SUBJECTIVE 2. Example “selling drugs near a school” (specific intent) Δ mistakenly believed school was a nursing home 1. Common law: still selling drugs (illegal) liable for higher offense. NY (§ 15. General rule: neither knowledge nor recklessness or negligence of an offense. the defense is not available if the defendant would be guilty of another offense had the situation been as he supposed. hold them for the crime they thought they were doing a. treat case as if mistaken belief were true. knowledge.04(2). unless: (a) Such factual mistake negatives the culpable mental state required for the commission of an offense. 2. or (b) The statute defining the offense or a statute related thereto expressly provides that such factual mistake constitutes a defense or exemption. the ignorance or mistake of the defendant shall reduce the grade and degree of the offense of which he may be convicted to those of the offense of which he would be guilty had the situation been as he supposed. Does the mistake negate what would otherwise be required for that offense (Does the Δ. certainty of the law (but many modern statutes are exceedingly intricate) 2. belief. A person is not relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief of fact. avoiding subjectivity in the law 3. or (c) Such factual mistake is of a kind that supports a defense of justification as defined in article thirty-five of this chapter. deterring fraud 4. sometimes embedded within good faith analysis is reasonableness test ii.20) and MPC (§ 2. Is the Δ reckless/negligent for believing in the mistake? OBJECTIVE g. ignorance of the law is not an excuse a. In such case.MPC § 2. Legal Wrong i. NY and MPC still have reasonableness test i. is ordinarily an element of that offense. or (b) the law provides that the state of mind established by such ignorance or mistake constitutes a defense. Rationales/Justifications: 1. MPC: still liable for lesser offense § 2.04) i. use lower offense to justify punishment for higher offense. Reasonability: 1. Rule: generally Δ not relieved of liability unless such factual mistake negatives the culpable mental state required for the commission of an offense 1.20: Effect of ignorance or mistake upon liability 1. however. Ask: What is the requirement of mens rea for the offense? 2. (legal wrong theory) NY § 15. e. therefore. Defense only accepted if good faith mistake. it follows that there typically is no mens rea capable of being negated by an actor’s ignorance or mistake of the law i. encouraging legal knowledge 16 . MISTAKE OF LAW: ignorantia non excusat. recklessness or negligence required to establish a material element of the offense. (2) Although ignorance or mistake would otherwise afford a defense to the offense charged.04: Ignorance or Mistake (1) Ignorance or mistake as to a matter of fact or law is a defense if: (a) the ignorance or mistake negatives the purpose. given his mistake still have all the requisite mental state elements required for the offense) f. Pro/Retributivist point of view: harm is secondary concern to Δ’s free will 6.
b. later determined to be erroneous. can lead to criminals finding loopholes to discourage fraud A reasonable mistake is a defense (Dissent) Negligence as better standard to encourage citizens to know law Δ tenaciously attempted to ferret out the law Retributivist: Δ’s conduct not blameworthy Any mistake. reasonable an unreasonable. administration. an official. Official interpretation of the law: Δ is excused for committing a criminal offense if she reasonably relies on an official statement of the law. is a defense b.S. adherence. adherence. though reasonably interpreting and relying on a statute that is never invalidated. Must come in an “official manner”: must be a formal interpretation iv. but merely interpreting otherwise. Criticisms: 1. interpretation of the law. Advice of private counsel insufficient as a basis 2. It is never reasonable to rely on one’s own interpretation of the law i. Retributivist: Δ’s conduct not blameworthy 3. Reasonable reliance/entrapment by estoppel: excuse defense a. or enforcement (e. Δ acts as we would want her to actno moral culpability 3. i. Utilitarian response: goal to encourage respect.g. Attorney General of the state or of the U. Narrowly applied: “official” 1. Common Law: when mistake of law is a defense: exceptions to the general rule: Knowledge of illegality of express element??? i. administration. secured from a public officer in charge of its interpretation. but erroneous. MPC’s interpretation not really an exception for mistake. generally everyone is conclusively presumed to know the law: understand and know of the existence of all criminal laws BUT exceptional cases 17 . Marrero misinterpretation of “peace officer” ii. and knowledge of the law by relying on more official sources Marrero Debate No mistake is a defense (Majority) To encourage respect. or enforcement of the law defining the offense. so incorrectly. Justifications 1. and knowledge of the law by relying on more official sources To also discourage people form knowing the law. “clean hands” unfair for official to hold people liable for government authorized conduct ii. because person correctly reading a statute that is later invalidated 2. a judicial decision of the highest court in the jurisdiction later determined to be erroneous 3. Three exceptions: 1. a statute later declared to be invalid 2. little deterrence effect 2. Fair notice: (excuse defense) a. obtained from a person or public body with responsibility for the interpretation. if federal law) iii.
Generally neither knowledge nor recklessness or negligence as to whether conduct constitutes an offense. The offense was malum prohibitum 3. “different-law mistake”: Δ’s lack of knowledge of. Each Δ aware of and understood criminal statute. Ignorance or mistake that negates mens rea: (failure-of-proof claim) a. e. e. so rape hypothetical invalid 3. mistaken belief that conduct was not rape b. failure to register as a convicted felon upon moving to new state. general-intent offense generally different-law mistake NOT a defense whether reasonable or unreasonable a. e.g.g. but were not. a. but misunderstood or was unaware of another law ii. Lambert) ii. mistake of different law defense valid 2. it will be a non-penal law-will negate the mens rea element in the definition of the criminal offense i. mechanic’s lien law: Δ unaware that mechanic may retain Δ’s property until Δ has paid b. The duty to act was imposed on the basis of a statute iii. On occasion. strict liability offense: NOT a defense: no mens rea to negate a. assert constitutional defense of due process violation c. Dealing with conduct that is wholly passive/punishes omission (e.g. so mistake of law will not usually negate mens rea b. Considerations for determining whether there was nothing to alert Δ or a reasonable person to the need to inquire into the law (might require all three be met) i. is ordinarily an element of that offense. Determine whether 1. belief that marrying another was not bigamy b. mistaken belief that Δ and V were legally divorced: belief that conduct was not rape. So bigamy hypo invalid 18 . specific-intent offense: if mistake negates the specific intent in the offense (same analysis as mistake of fact). mistaken belief that Δ and V were legally married.where so grossly unjust to assume that a citizen is aware of a penal law’s existence that one might expect that a court would provide some common law dispensation b.g. or as to the meaning of an offense. knowledge that the prohibited conduct constitutes na offense is itself an express element of the crime c. or misunderstanding regarding the meaning or application of another law-usually.
or (d) an interpretation of the statute or law relating to the offense. If Mistake of law: general intent or specific intent element? No mistake is a defense (Majority) Mistake of law about GI and SL offenses A reasonable mistake is a defense Mistake of fact about GI element Mistake of law about SI element Any mistake. In such case. Knowledge of illegality express element § 2. is a defense Mistake of fact about SI element 19 .) 3. A person is not relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief that it does not. agency or body legally charged or empowered with the responsibility or privilege of administering. (4) The defendant must prove a defense arising under Subsection (3) of this Section by a preponderance of evidence. enforcing or interpreting such statute or law. contained in (i) a statute or other enactment.04(3)(b) 4. or (c) a judicial decision of a state or federal court. opinion or judgment. however. unless: such mistaken belief is founded upon an official statement of the law contained in (a) a statute or other enactment.20 General Presumption Against Mistake of Law Doctrine: Exceptions: 1.04(2) 3. MPC Mistake of Law Doctrine: § 2. reasonable and unreasonable. administration or enforcement of the law defining the offense. or (b) an administrative order or grant of permission.04(3) (a) NY’s Mistake of Law Doctrine: § 15. even though statute doesn’t say official statement must be declared erroneous. as a matter of law. recklessness or negligence required to establish a material element of the offense.04: Ignorance or Mistake (1) Ignorance or mistake as to a matter of fact if: OR LAW OF LAW NY § 15. the courts. knowledge. belief. Mistake of law or mistake of fact? 2. U. the ignorance or mistake of the defendant shall reduce the grade and degree of the offense of which he may be convicted to those of the offense of which he would be guilty had the situation been as he supposed.MISTAKE MPC § 2.04(1) 2. or (b) he acts in reasonable reliance upon an official statement of the law.Fair notice: because statute hasn’t been published yet § 2.20: Effect of ignorance or mistake upon liability is a defense 2. or (b) the law provides that the state of mind established by such ignorance or mistake constitutes a defense. (a) the ignorance or mistake negatives the purpose. Recognize mistake where mistakes weren’t really mistakes § 2. (iii) an administrative order or grant of permission. based on leg history have determined that must be so (Marrero) WRAP UP Common Law: fundamental questions 1.S. officially made or issued by a public servant. (3) A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when: (a) the statute or other enactment defining the offense is not known to the actor and has not been published or otherwise reasonably made available prior to the conduct alleged. (ii) a judicial decision. (2) Although ignorance or mistake would otherwise afford a defense to the offense charged. afterward determined to be invalid or erroneous. the defense is not available if the defendant would be guilty of another offense had the situation been as he supposed. constitute an offense. Elemental: mens rea negatived § 2.04 General Presumption Against Mistake of Law Doctrine: Exceptions: 1. Recognize mistake where mistakes weren’t really mistakes: relying on official interpretation of the law 2. Specific intent negated for “different law” mistake (Cheek v. or (iv) an official interpretation of the public officer or body charged by law with responsibility for the interpretation.
Actual Cause: Δ’s conduct is an actual cause when but for the Δ’s conduct. V dies in 5 minutes 20 . i. Only causation issues with result crimes b. When not acting in concert: must show independent causation for each Δ 1. V would die in 1 hour However. but first cause obstructed by second actual cause. Substantial Factor 3. Actual causation ii. distinguish aggravation: causing a more painful death (assault) ii. Not straightforward when multiple causes i. aggravating causes: doing anything physically to aggravate harm. But for: would V have died from two simultaneous mortal wounds (died in a particular way) 4. obstructed cause: potential multiple causes. (still attempted murder charge). Only picks some actual causes to be criminally responsible 2. Accelerating Causes: Both D1 and D2 accelerated death of V Timeline D1 inflicts mortal wound. concurrent-sufficient causes: a. accelerating causes: focuses on second chronological assaulter: is the result going to happen any sooner? 2. (as opposed to increasing pain) 3. manslaughter: result is death. If alone. INTRO: a.e. direct causes iv. intervening causes vi. because of D1 and D2. i. Causation Terms: i. it has been determined that Δ should be held accountable for the resulting social harm i. Application: a. from legal to non-lethal. aggravation of lethality of wound. superseding causes c. the result would not have happened when it did and as it did d. Proximate Cause: Δ’s conduct is a proximate cause when as one of the actual causes of the resulting social harm. R: only hold actor to the harm they cause iii. D2 not intervening cause (proximate causation term) a. V would die in 1 hour D2 inflicts mortal wound. Tests: 1. But for Δ’s conduct would V have died when and as he did: 2. Common scenarios involving multiple causes: 1. If first injury is lethal: must show second injury accelerated the result: speeds up time of death a. if conduct was a substantial factor in said result b. proximate causation iii. indirect causes v. If alone. ACTUAL CAUSATION: BUT FOR CAUSATION a.CAUSATION 1.
V would die in 1 week D2 inflicts mortal wound. e. Intro: i. changing the actual nature of the act. d. D2 also inflicts instant mortal wound at the same time. V dies instantly.b.e. Direct: bring about result without intervention of another force ii. separate force in operating in creating harm. Supervening cause: does intervening cause relieve Δ of criminal responsibility? Under what circumstances is it unfair to say that the social harm was caused by the Δ’s conduct because of an intervening cause 21 . only comes into play after the Δ’s voluntary act and before the social harm. Act of God/Nature b. because of D1 and D2. obstructed by D2. Intervening cause: conduct or force that occurs between an earlier cause and the eventual result. V dies in 5 minutes c. V would not die However. D2’s wound would have killed V when and how it did regardless of D1’s initial shot (The case of Joseph Wood) Timeline D1 inflicts mortal wound. V2 would die instantly from this wound V dies instantly from D2’s wound 3. Concurrent Sufficient Causes: both D1 and D2 are causes Timeline D1 inflicts instant mortal wound. V dies. However. If alone. If alone. PROXIMATE CAUSE a. perhaps altered by proximate cause Timeline D1 inflicts non mortal wound D2 inflicts non mortal wound. Timeline D’s conduct (earlier cause) Intervening cause Social harm 2. Common Sources: a. because of D1 and D2. not accelerating something. Aggravating Causes: Both Ds are actual causes (but aggravation of only pain does not constitute actual causation. V would die in 1 hour D2 inflicts nonmortal wound. Third Party c. Obstruction: D1 not an actual cause. Must be aggravation of lethality of wound). Indirect: is that which brings about a result only with the intervention of another force(s) 1. Victim’s conduct 3. Accelerating Causes II: Both D1 and D2 accelerated death of V Timeline D1 inflicts mortal wound. i. but obstructed cause.
Example: Kibbe v. Apparent Safety Doctrine: when person reaches a position of safety. Kibbe drunk: not considered acting out for free will. Will break the chain of proximate causation only if abnormal and unforeseeable (extreme unforeseeably). 1. much harder to get off c. V reached apparent safety from original wrongdoer batterer outside her parent’s house. even if second wrongdoer had a duty to act iv. focus on intervening act of Kibbe moving to the center of the road iii. Henderson intervening causes of driver Blake and V do not supersede. Foreseeability Doctrine (NY law): was the intervening cause foreseeable (not whether the harm was foreseeable) 1. Coincidence: when the Δ’s act merely put the victim in a certain place in a certain time and because the V was so located it was possible for him to be acted upon by the intervening cause i. Omissions Doctrine: omission never relieves an earlier wrongdoer of proximate causation and criminal foreseeability (no matter how free will or unforeseeable). the law will not trace back to that causal chain any further 1. Will break the chain of proximate causal connection unless it was foreseeable b.b. the original wrongdoer is no longer responsible for any ensuing harm. Lafave and Scott: a. Response: involves a reaction to the conditions created by the Δ i. but chose not to enter and froze outside 22 . Free will Doctrine: look back to free deliberate and informed human action (first act of free will). foreseeable that highly intoxicated abandoned man without glasses would get hit by car on rural unlit highway Kibbe Coincidence of Blake’s driving: getting hit by a car foreseeable Timeline D’s voluntary act leaving S on side of road S’s movement to center of road Blake’s driving Intervening Cause Harm of S’s death Kibbe Coincidence of Plane crashing into road: not foreseeable to get hit by plane Timeline D’s voluntary act leaving S on side of road Joseph Wood Timeline D1 shoots off gun b/c of gun shot D2 comes running and V dies instantly from D2’s wound inflicts mortal wound foreseeable S’s movement to center of road Plane Intervening Cause Harm of S’s death ii. Proximate Cause Doctrines that May Preclude Criminal Responsibility Based on legal causation: i. Intervening Causes as Coincidences and Responses Doctrine. same as insane.
Was the actual resultdesigned or contemplated result (intentional) b. handled on a case-by-case basis. or (b) the actual result involves the same kind of injury or harm as that designed or contemplated and is not too remote or accidental in its occurrence to have a [just] bearing on the actor's liability or on the gravity of his offense. foreseeability. Need actual causation/but for causation. 2. in the case of negligence. Justification: a. unlike tort. of which he should be aware unless: (a) the actual result differs from the probable result only in the respect that a different person or different property is injured or affected or that the probable injury or harm would have been more serious or more extensive than that caused. Proximate Cause Doctrines: established only when there is a match between actual result and designed/contemplated or probable result. the element is not established if the actual result is not within the purpose or the contemplation of the actor unless: (a) the actual result differs from that designed or contemplated. as the case may be.03 (proximate causation never stated) 1.03(2) and (3): a. (1) Conduct is the cause of a result when: (a) it is an antecedent but for which the result in question would not have occurred. the element is not established unless the actual result is a probable consequence of 23 . § 2.03(1) 2. see Velazquez below…) vi. negligent) 3. Exceptions: i. 5 year old finds it and innocently administers to V who dies 2.03 Causal Relationship Between Conduct and Result. the element is not established if the actual result is not within the risk of which the actor is aware or. only in the respect that a different person or different property is injured or affected or that the injury or harm designed or contemplated would have been more serious or more extensive than that caused. or (b) the actual result involves the same kind of injury or harm as the probable result and is not too remote or accidental in its occurrence to have a [just] bearing on the actor's liability or on the gravity of his offense. so long as result is achieved through somewhat similar means. but negligently leaves on counter. and (b) the relationship between the conduct and result satisfies any additional causal requirements imposed by the Code or by the law defining the offense. apparent safety. (2) When purposely or knowingly causing a particular result is an element of an offense. transferred intent or ii. Intended Consequences Doctrine: unplanned route (intervening causes) is ok. 1. MPC’s Remote and Accidental Doctrine § 2. passes of as “medicine” to babysitter. If mismatch between actual result and designed or contemplated result/probable consequence and if result is not so accidental or remote a. Was the actual resultprobable result of which Δ was aware or should have been aware (knowing. babysitter decides not to administer to V. (4) When causing a particular result is a material element of an offense for which absolute liability is imposed by law. Contributory Negligence Doctrine: V’s own conduct was an intervening cause. what might cut it off? What might not? (free will. Divergence Between Result Designed or Contemplated and Actual Result or Between Probable and Actual Result.v. (3) When recklessly or negligently causing a particular result is an element of an offense. R: affirmative free will choice to kill V (goes beyond attempted murder) Timeline M gives poison to N & tells N to give to V N negligently leaves poison out 5 year old Y innocently gives poison to V Harm of V’s death vii. mens rea given tremendous weight b. just one consideration out of the other doctrines 1. Involves same kind of injury and not too remote (proximate causation) MPC § 2. M plans to poison V. reckless.
03(2)(a) and (b) and (3)(a) and (b)]: • • The only difference is that actual result is a different person or different piece of property is harmed [transferred intent]. at least Δ is reckless about the risk tat X will continue shooting) 2.the actor's conduct. State: drag racing dummies 1. negligence ) D follows and also continues racing (possible intervening cause?) V dies ix. Velazquez v. BUT CA goes the other way and holds Δ liable: no matter what the condition of the V is by choice (religion) or not by choice (hemophilia-true eggshell skull) Timeline D drives drunk and hits V V offered medical treatment V refuses blood transfusions that would save her life (intervening cause?) V dies 24 . free will of X continuing to shoot (might get Δ off) Timeline X shoots at D (NOT the initial cause of harm to V. You do not need a match for these exceptions [2. or When the actual result involves the same kind of injury as designed and is not too remote or accidental as to have a [just] bearing on liability.child) D grabs toddler to use toddler as shield (Initial cause of harm to V-child) X continues to shoot. contributory negligence: V’s own conduct contributed to his death 2. free will doctrine: V’s own informed choice to continue drag racing in other direction 3. V decides to turn around and continues racing (possible intervening cause-contrib. because this V doesn’t have any contributory negligence Timeline D and V begin a drag race At end of path. apparent safety: drag race was over 4. Hall: Δ uses child as shield from oncoming bullets 1. now at toddler & D (possible intervening cause) Harm of toddler’s death x. Jehovah’s witness case 1. or The only difference is that actual result is less serious or extensive than designed or contemplated. free will doctrine: she chose out of her own free will to turn down blood transfusion 2. foreseeability (foreseeable that X would continue shooting after Δ picked up child. foreseeability: not foreseeable that that V would turn around and consider the race 5. Cook (supplement case). People v. might still pin the death of an innocent bystander on Δ. • viii.
REVIEW: Focus not just on substance of questionbut the target of the question 1. find intervening act 3. determine: whether intervening cause was foreseeable by taking into account Δ’s act PROXIMATE CAUSE TESTS Foreseeability Is the intervening cause a response or coincidence to defendant’s act? Was the intervening cause foreseeable? Abnormal? Is the intervening cause an act of free will? Free Will Omissions Is the intervening cause an omission? Apparent Safety Intended Consequences MPC Has apparent safety been reached after defendant’s act and prior to the resulting harm? Did the defendant get what she intended.xi. even if it did not occur in the precise manner planned? Is the only difference a different person or property? Extent of injury? Or is actual result the same kind of injury and not too remote or accidental? 25 . find Δ’s act 2.
not burglary: intent to commit a felony therein occurred later c. When a person commits temporally divisible acts only one of which causes the social harm OR ii. no evidence of culpable negligence on the part of Δ up to and including the time at which the V was struck by Δ’s car. a. Actus reus preceding mens rea i. Temporal Concurrence: when the mens rea of an offense exists before or after. a. the commission of the actus reus. reckless about it being loaded. M decides to kill V. RI driver case. Motivational Concurrence: the impelling force or motivation behind the act that causes the social harm must be the mens rea of the offense. later accidentally kills V b. but gun is loaded and at the moment V enters the house —pulling the trigger was intended as a preparatory act) b. abandons plan. such as the mental state of preparing to commit the offense. Δ breaks and enters to escape cold.CONCURRENCE OF VOLUNTARY ACT AND MENS REA 1. must also show reckless about husband coming home (disregard unjustifiable risk) c. thereafter no evidence to prove V died on impact or was dragged and then died when Δ recklessly or negligently drove off (State v. Rose) 2. Temporally divisible acts and/or omissions: i. and not some other thought process. mens rea must be the actuating force behind the conduct: ask: why was the act done at that time? 26 . Mens rea preceding actus reus i. Later while inside decides to steal V’s property. but not during. intent to kill must be the reason why Δ pulls the trigger at that singular moment (not because testing the trigger based on belief that gun is unloaded. When Δ’s mens rea concurs with an omission that follows an innocent act 1.
Each mental state involves an extreme indifference to the value of human life b. Intent to Kill (express) 2. Common law: no prosecution for homicide unless V died within a year and a day of the attack ii. b. mother has been pregnant for at least 24 weeks. e. determine what degree a. negligent (involuntary) 3. deliberate. Three Mental States: 1. but done in an unlawful manner a. Example PA 1. Depraved Heart (implied) 4.g. Modern trend: abrogate rule or apply a longer time limitation 1. lying in wait—sufficiently morally heinous b. First degree: a. When does death have to have happened: i.CA: rebuttable presumption for 3 years and a day 2. Distinctions between Jurisdictions a. COMMON LAW Murder killing with “malice aforethought” (aforethought-superfluous) i. Determine whether a murder has occurred (with malice: 4 mental states above) 2. Intent to Cause Grievous Bodily Harm (implied) 3. Unlawful Act Manslaughter a. Felony murder: rape. and premeditated killing c.00 unborn child. Common law: graded voluntary and involuntary manslaughter equally c. First degree i. According to the statutory specified manner ii. COMMON LAW Manslaughter killing without malice aforethought (courts not comfortable with mandatory penalty for murder) i.IN PRACTICE: HOMICIDE AND RAPE HOMICIDE: 1. Assuming a murder has occurred. Intent to Kill in Sudden Heat-of-Passion as the result of adequate provocation 2. robbery. DIVISION OF MURDER INTO DEGREES i. Willful. Four Mental States: 1. All other forms of murder are second degree 27 . Definition: The killing of a human being by another human being without justification or excuse a. Felony Murder (implied) ii. When life begins: Feticide: subset NY 125. First: 1. According to the statutory specified manner: poison. When is death: the end of respiratory and pulmonary functions OR the end of the end of brain activity c. “misdemeanor manslaughter” ii. Intentional Homicides: Both Murder and Manslaughter can be intentional (voluntary) and unintentional (involuntary) 3. reckless b. arson. and burglary 2. Lawful Act Manslaughter: act lawful in itself.
or any other act punishable under sections relating to sexual offenses. Example CA-common law: Murder= any killing with malice aforethought (3 mental states) 1. ii. Vehicular: gross negligence d.1-210. rape. and deaths that occur during the commission of other felonies iii. crim negligence homicide 1. train wrecking. sufficient time to be afforded to enable the mind to fully to frame the design to kill and to select the instrument. Focus exclusively on mens rea to distinguish § 210.27 ii. deliberate. Everything else is second degree murder (15-life) 3. days. intent to inflict grievous bodily injury killings. Committed in the perpetration of.g. but not premeditated and deliberate. lying in wait. deliberate. or frame the plan. mayhem. No provocation (implied) c. Murder degrees a. E. NY and MPC: see charts! i. or attempt to perpetrate. minutes a. reckless killings. Malice aforethought a. intentional. or 25life) i. depth of reflectionquality of though process ii. Manslaughter: unlawful killing of a human being without malice a. undermines degrees of murder 28 . Involuntary: in the commission of an unlawful act. or any murder perpetrated by the means of discharging a firearm from a motor vehicle. Not sep by degress 2. and premeditated” a. NY: blend of common § 125.10-§ 125. weighing the reasons for and against and considering the consequences of the action. Manifested deliberate intention unlawfully to take away the life of a fellow creature (express) b. and premeditated killing iv. First Degree: (punishable by death.a. Voluntary: upon sudden quarrel or heat of passion b. poison. hours. Criticism: nearly equates premeditation with intentional killing. arson. impossible to deliberate without premeditating. deliberate. intentionally at another person b. Broad: no time is too short for a wicked man to frame in his mind the scheme of murder. Split: 1. Premeditation: to think about beforehandquantity of time that a person put into formulating her design iii.4 4. Murder perpetrated by a destructive device or explosive. carjacking. kidnapping. Most jurisdictions: “willful. and premeditated”=more than in an intent to kill. Or by any kind of willful. deliberation: measure and evaluate the major facets of a choice or problem. robbery burglary. heinous i. manslaughter. Elements of COMMON LAW INTENTIONAL MURDER: “willful. life imprisonment without parole. Abandoned-malignant heart (implied) 2. not amounting to a felony c. MPC: only murder. torture iii.
U: deterrence for premeditators 2. mutual combat. Nature and number of the V’s wounds v. proof that the killer has time not only to form the intent. and f. deliberate” distinction: 1. Δs serving life already. adequate provocation (by the V) a. Δ’s threats and declarations before and during the course of the occurrence d. Criticism: some of the worst murders aren’t planned at all vi. Depraved Heart Murder: extreme recklessness 5. enough time for reasonable person to take a second look (still no bright line test) 3. thorough. actual mercy killings of the elderly 1. etc. Δ’s conduct and statements before and after the killing c. Forrest. R: free will. words ONLY enough if accompanied by conduct indicating a present intention and ability to cause the Δ bodily harm 1. undisturbed by “hot blood”. informational words 29 . mercy killing 1st degree murder). injury to close relative. 1º reserved for killings of certain Vs (police officers. possibility of allowing some words: insulting words v. law accepts certain provocations in fixed categories: i. Rule of Provocation/Heat of Passion defense that will mitigate murder to manslaughter (Common law) i. Elements: 1. broadly defined/modern standard: inflame the passion of a reasonable man and tend to cause him to act for the moment from passion rather than reason i. witnesses. one who plans has arguably made a more culpable choice vii. policy: would affect the multitude of domestic abuse cases ii. Factors in Determining Premeditation and Deliberation: (State v. Utilitarian-Retributivist Explanations for 1. but also to turn the matter over in her mind and to give the matter at least a second thought. Note: NY does NOT separate 1º and 2º degree murder by “willful. premed. careful. Want of provocation on the part of the V b.2.) b. Narrow: some appreciable time. INTENTIONAL MANSLAUGHTER a. assault and battery. and cool calculation and consideration of effects and consequences-the essence of the deliberative process-in a matter of split second. Ill-will or previous difficulty between the parties e. The dealing of lethal blows after the deceased has been felled and rendered helpless. Evidence that the killing was done in a brutal manner g. unworkable. proved by circumstantial evidence a. Troublesome cases: heinous child abuse that results in death. etc. Cardozo: fact sensitive whether the case is such that a jury could exercise mercy. observing adultery.) or by certain Δs (K killers. unpredictable test? Purpose of second degree: To give room to exercise mercy iv. illegal arrest b. not possible to conduct unhurried.
U: might not worry about emotion. Objective standard: avoid people who have proclivity toward getting provoked. rape Vs) 4. Mixed objective/subjective standard: (Director of Public Prosecutions v. must have good reason to explain why emotionally disturbed (must still adopt internal. Subjectivity and Objectivity in the Criminal Law 1. if he perceives she rejected him…) Ask: a. sex.e. threshold is so lowsome states have pulled back. OBJECTIVE/SUBJECTIVE part of test: 1. subjective: jury can consider accused’s characteristics as they think would affect the gravity of the provocation to him (if words are considered as potentially adequate provocationmeant to be subjective) 3. killed in heat of passion 3. refusing to adopt evidence of homophobia 30 . Should criminal law reflect who we are or be a beacon of the ideal. How grave was the provocation to a reasonable person b.2. NY drug dealer case putting hand on plate ii. whether the explanation why Δ is EED is reasonable. Camplin-15 year-old killed man who raped him by hitting with frying pan) a. sources of self-controlsex and age as big contributors to how much self control to expect from Δ b.e. physical handicaps Being of illegitimate birth Often not included Idiosyncratic moral values i. because more concerned about danger posed to society 3. no excuse for exceptional pugnacity a. eliminates provocations that occur well before the crime b. objective: power of self-control to be expected of a person of the sex and age of the accused. which characteristics to assume: Often included Age. What level of self control is expected of a reasonable person to this provocation b. causal connection: provocationheat of passionkilling ii. Did the Δ act under the influence of EED? Threshold for getting jury to entertain defense before jury a. MPC/NY: Extreme Emotional Disturbance Test i.e. some exceptions in instances where over time blood gets hotter and hotter (i. something people aspire to? 2. subjective circumstances. Whether in the totality of the circumstances the finder of fact could understand how a person night have his reason overcome b. how emotion affects the grading of an offensemitigation or aggravation 2. Premed and Deliberation and Heat-of-Passion premised on emotion: 1. R: look for less morally culpable choice iii. SUBJECTIVE part of test: 1. easy to prove. no reasonable opportunity to cool off a.i.
NY (see chart): 125. will more often get to the jury in EED states 6. no rigid cooling off rule. manslaughter instruction warranted although V did nothing to provoke the incident ii.4 Negligent Homicide 2. if provocation. Watson) Berry v. Killing due to UNJUSTIFIED & SUBSTANTIAL RISK TAKING: reckless and negligence killing i. no suddenness requirement. words alone can be sufficient iv.10 Criminally Negligent Homicide 3. Jurisdictions: 1. 210. Superior Court . EED. CA/Common law (see above): Involuntary Manslaughter. EED has fewer requirements i.2 (2) When murder is committed under circumstances manifesting extreme indifference to the value of human life (entitled to reckless manslaughter jury instruction) Abandoned and Malignant Heart: malice may be implied when Δ does an act with high probability that it will result in death and does it with a base antisocial motive and with wanton disregard for human life (People v. Carving out an additional mens rea: in-between murder and manslaughter recklessness: SEVERE RECKLESSNESS Common Law: ABANDONED MALIGNANT HEART AND NY: § 125. need not fall within any fixed category of provocation.). extreme recklessness: “Abandoned and Malignant Heart” (in-between recklessness and intent/knowing) b. 210. despite specific jury instructions. Heat of Passion v. juries still have misconception MPC: Murder. 210. or other provocative act perpetrated upon the Δ by the V.2 (2) Murder. all killings=depraved indifference. an affront. he recklessly engages in conduct which creates a grave risk of death to another person. 210. so if Δ mistakenly believes V was responsible for the affront or if provocation and Δ strikes out in blinding rage and kills innocents iii. UNINTENTIONAL MURDER a.2 Murder. need not involve “an injury. 125. MPC (see chart): 210.3 “Extreme Indifference” Manslaughter. homicide need not immediately follow the incident v. pitbull case Test: whether a person of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion that Δ committed the crime charged 31 . “Depraved Indifference”125.c. and thereby causes the death of another person There are jury misconceptions about depraved indifference as “fall back”/lesser punishment than intentional murder. if provocation. etc. a specific provocative act not required to trigger EMED (can be brought on by a combination of factors-difficult divorce.25 (2) Murder 2º DEPRAVED INDIFFERENCE Under circumstances evincing depraved indifference to human life.25(2) Murder in the 2º degree.15(2) Manslaughter 2d.
FMR originally: all feloniesdeath penalty. indifferent means “don’t care” mutually exclusive (NOT lesser alternatives) of intent to kill. Current NY law (Suarez and McPherson): i. Only a rare case can reasonably support alternative theories 2. bomb in public place. juries struggling with risk analysis. 1. Non-criminal Accidental Killings d. Not an intent to inflict serious injury. BUT felony + killing with intent ≠ felony murder ii. many more Δs exposed to FMR b. making bright lines in particular between depraved indifference and reckless manslaughter because different grades of punishment c. Recklessness + high risk of death + uncommon brutality (not by virtue of the acts motive is for the sake of brutality. starting fire at door of occupied building. court has already graded this as lesser Manslaughter. juries can apply reasonably consistently iv. shooting into crowd. previous precedent in Register: high recklessness + level of risk alone NOT enough (lacks brutality). opening door of lion’s cage. Problems/Criticisms of Modern Application of FMR a. Rationale: 1. Can’t deter unintended consequences 2. vs. What depraved indifference is: 1. Not an intent to kill. Can’t deter because people are not familiar with harsh FMR e. Not many primes punishable by death c. felony [both MR and AR of felony] + killing [in perpetration/commission of felony. FELONY MURDER: Killing during unlawful conduct: i. 1º a. brutality less gray factor. FMR was needed to punish attempted felonies (before treated as a misdemeanors) 1. a. etc. fear of over and undercharging. Additional motive of brutality and torturebumps up to depraved indifference murder 3. Justifications/Rationale a. a. Many more felonies on the books. Reckless Manslaughter 2º : recklessness about death (conscious disregard of substantial risk of death) ii. Intro: 1. Examples given: Russian roulette. no need to show MR for killing] = felony murder a. What depraved indifference is NOT: 1. Utilitarian: 32 . Not heinous and brutal if accompanied by intent to kill iii.a. not for killing) a. Attempted felonies not downgraded to felonies d.
determination is NOT based on the particular facts of the case a. dies from heart attack intends to murder V 3 Same culpability as B1 (B2 just unlucky) Greater harm (no death from B1) Greater culpability Same harm (still a death). i. treat B2 like a burglar 4. States that have abolished FMR: MI.g. Proportionality: Matching culpability to harm? Burglar (B1) enters. Abstract Approach: whether the crime. theft (even if swindling cancer patient not to seek conventional treatment and he dies quicker as a result). Deterrence principle: encourages careful behavior 1. takes into account non-hazardous ways of violating the provisions which do not necessarily pose a threat to human life ii. V Burglar (B3) enters. Burroughs felony of practicing medicine without a license not inherently dangerous: could result in treating a cold or setting a broken arm iii. false imprisonmentNOT inherently dangerous 33 . i. Proportionality: FMR represents how our society measures/grades harm ii. encourages potential felons to commit felonies in most safe way ii.g. deterrence. steals $500. steals $500. What dictates punishment? Why must it be either or. E. if the court can think of ways of committing the felony in which there would NOT be a risk of death felony itself is NOT inherently dangerous. states that have kept the FMR have limited it 5. Underlying felony has to be inherently dangerous i. discourages intentional feloniesbecause now no need to prove MR b. V dies from heart attack during bank robbery) iii. courts have said. why not something inbetween . KY. E. The fact that people don’t know about FMR: can make argument about every law. Crumps: i.g. Treat B3 like intentional murderer. don’t commit felonies at all because always a risk (e.i. felons not that ignorant 2. steals $500 Burglar (B2) enters. HI. Black and white rule easy to apply iii. by its very nature… can not be committed without creating a substantial risk that someone will be killed…an offense carrying a high probability that death will result. Limitations of Felony Murder Rule a. a. Narrow: Look to the elements of the felony in the abstract. 1. People v. Reduces fraudulent defenses related to MR 3.
If the purpose of the conduct was the very assault which resulted in the deathnot independent. distance. CA: inherently dangerous in the abstract + independent felonious purpose c. b. vs. i. Δ beats V to death (assault + murder) 3. Has to be during the commission of a felony i. Criticism: in hindsight there is a dead bodyjury will be persuaded that act was inherently dangerous b. E. if death occurs within a few minutes regardless of being in state of safety. Causal connection: Approaches/Interpretations 1. Δ breaks and enters in order to kill V 2. even though at point of safety (in back of police car) e. Prosecution should go after intent where some felons manifest an intent to kill 2. State v. plane importing illegal drugs crashed because of pilot error or bad weather (NOT connected) b. felonies of involuntary and voluntary manslaughter can not serve as underlying felony ii. vs. End of felony: point when Δ has reached temporary safety. can’t use underlying felonies that are an integral part of the homicide 1. Deterrence can’t deter if purpose was to kill iii. Stewart court could imagine nondeadly ways of committing child neglect. Fact Specific/Facts of the Case: determines the dangerousness of a felony by considering “the facts and circumstances of the particular case to determine if such felony was inherently dangerous in the manner and circumstances in which it was committed. undertaking maneuvers to avoid detection (connected) 34 .g. King/VA approach: It’s not enough that the felony itself gives you reason to be there death itself must have been connected to the felonious nature of the conduct a. pilot flying erratically. a part of a continuous transaction 3. Other general considerations of time. Res gestae: 1. State v. Has to be on Statutory List of Designated Felonies d. Has to be in Furtherance of the Felony i. E. Has to be an independent felony (independent of the killing) i. Otherwise swallows up leg scheme of graduation of crimes 3. Felony begins: at point where can be convicted of an attempt 2.iv. Rationale for Merger: 1. Sophophone charged with death of co-felon. and causation between underlying felony and a killing are factors to be considered (causation) a.g.
rape. or CA Common Law One of the four mens rea categories of “malice aforethought” CA Murder. or any instrument. if there be any. request. sexual abuse in the first degree. carjacking. article or substance readily capable of causing death or serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons. or another participant. except that in any prosecution under this subdivision. the attempted commission of.2. article or substance. or is an accomplice in. rape or deviate sexual intercourse by force or by threat of force. arson. 1º Committed in the perpetration of. Hypo 2: Doesn’t satisfy accomplice liability. Agency Approach: 1. or any other act punishable under sections relating to sexual offenses. train wrecking. or escape in the second degree. aggravated sexual abuse. and. or attempt to perpetrate. Sophophone: how can you base liability on non-liability Felony Murder MPC Murder. he commits or attempts to commit robbery. intentionally at another person 35 . in the course of and in furtherance of such crime or of immediate flight therefrom. escape in the first degree. CA/Common law: only actual but for causation needed 3. NY: requires foreseeability f. causes the death of a person other than one of the participants. NY exception: state doesn’t allow for death of co-felon as basis of FMR iii.2(b) 1.25 (3) Murder 2º 3. can’t base liability on non-liability ii. police officer not an accomplice 2. he. mayhem. instrument. Supplement Hypos: 1. if death is foreseeable regardless of whether killer is an accomplice 2. justified killing. arson. and (c) Had no reasonable ground to believe that any other participant was armed with such a weapon. arson. robbery burglary. extreme recklessness is presumed (murder) if homicide occurs while actor is engaged in. Proximate Cause Approach NY approach 1. importune. kidnapping. kidnapping. Special Accomplice Limitations i. command. 210. Hypo: 1 accomplice liability 2. rape in the first degree. Acting either alone or with one or more other persons. criminal sexual act in the first degree. and (d) Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury. and (b) Was not armed with a deadly weapon. cause or aid the commission thereof. or flight from one of the dangerous felonies: robbery. kidnapping or felonious escape NY § 125. in which the defendant was not the only participant in the underlying crime. burglary. burglary. F1 and F2 not an accomplice to V (killer) 3. or any murder perpetrated by the means of discharging a firearm from a motor vehicle. it is an affirmative defense that the defendant: BURNHOLDT DEFENSE: (a) Did not commit the homicidal act or in any way solicit.
to say so 2. How long is an expression of non-consent accepted: is it revocable? b. Lack of Consent iii. Modern trends: 1. some jurisdictions have eliminated force req. NJ: need affirmative and freely given permission by the V. Consenting to sex after bringing an action of rape relevant for credibility cases ii. Silence ii. Consent i. Rape of unconscious /sleeping victim unable to consent iv. 2. no longer constitutional to punish with death penalty 3. currently a non-gendered term c. Silence not enough for non-consentV must clearly communicate to Δ. evidentiary point that rises level to element of consent iii. consent can be withdrawn after initial penetration 4. Stranger rapes: arguably have a different. silence is NOT permission 1. Four common types of Rape in Modern Statutes i. Forcible rape ii. permission demonstrated when evidence is sufficient to demonstrate that a reasonable person would have believed that the alleged V had affirmatively and freely given authorization to the act a. state must demonstrate beyond a reasonable doubt either that Δ did not actually believe affirmative permission had been freely given or that such a belief was unreasonable under the circumstances 3. Rape by deception iii. lesser standard iii. Later included “forcibly”. permission can be inferred from acts. Special rule when dealing in the context of a current or prior relationship: statements and actions by V must be clearly communicated to the Δ and which expressly and unequivocally indicate the V’s withdrawal of any prior consent and lack of consent to the particular act of intercourse a. onus will be on party who wants to stop. Actus Reus Elements a. Intro: i. persons need not expressly announce consent to engage in intercourse for there to be affirmative permission 2. common law rape: carnal knowledge of woman against her will (gendered criminalization) with marital exception ii. Rape of victim incompetent to give legal consent 2.RAPE 1. What makes it rape as opposed to sex? a. nonconsensual sex without forceRAPE 36 . Changing mind possible? Verbal no + body language yes iii. Lack of Consent: against the will of V i. Resistance? b. NC: Says it is legitimate to have different rules based on nature of relationship between V and P 1. Sexual penetration ii. Historically i. Force? iv.
must be something Δ just did as opposed to general history between parties. Old law: Vela precedent: crucial time for consent is at penetrationconsenting to initial act of consent. Roundtree precedent: crime of rape committed when a V withdraws her consent during an act of sexual intercourse but is forced to complete the act 1. onus on party interested in sex to get affirmative consent ii. Silence is consent during act of sex in a prior or existing relationship. sometimes silence as evidence of consent b. Words before and during intercourse. harder to prove. Must be used by Δ to achieve non consensual sex b. onus on party who wants to continue. MD: the evidence must warrant a conclusion either that the V resisted or that she was prevented from resisting by threats to her safety (implied threats are enough). iii. Force: State-by-State Requirements i. Silence not enough for consentmust be communicated. 2. although resistance is not a formal requirementcourts will tend to apply as such iv. : V’s version: several minutes past after V says “I need to go” not quite crying. Other states: silence=consent. Force? Depends on jurisdiction d. but on the verge ii. 37 . onus on party disinterested in sex to clearly communicate feelings to Δ e. but not by a rapist”) ii. Many courts now accept “no” as enough v.5. no iii. room for fraud ii. Silence not enough for consent? Depends on jurisdiction iv. State 1.e. Different ways to prove lack of consent: a. High court: same reasonableness standard. V’s testimony post intercourse b. Consent Overview/Proving Lack of Consent: i. but jury question to determine credibility. NC: Actual force need not be shown in order to establish force sufficient to constitute an element of crime of rape. Does the lack of resistance = consent. People v. must show V did not consent: attendant circumstance: subjective. John Z. but still nonconsensual sex (here “raped. need affirmative permission. Splits: a. i. limit thinking to moments just before the act occurred) 2. What is required in Alston: a. Intermediate court: based on reasonable fear (objective standard). NJ: silence=non-consent. to get affirmative consent c. Rusk v. Threats of serious bodily harm which reasonably induce fear thereof are sufficient (constructive force). Altson says act not a crime because non-forcible sex . Physical resistance before and during intercourse c. Withdrawing Consent i. No prior relationship + silence i. Ambiguity or Silence: courts start with default presumption 1. Alston 1. Must also cause V to specifically be afraid of Δ so that at that moment she gives into sex (general fear is not enough. must show Δ’s mens rea that accompanies attendant circumstance 1.
and whether the V was under duress 2. even the act of penetration itself. U: encouraging committing crime in less harmful way (use only threat. requiring resistance doesn’t reflect properly the way Vs behave 38 . Most courts: must be threats of physical harm b. moving away from conduct if the V. domination. PA: V’s fear must be reasonable (objective standard). preemptive use of force. Proportionality: threats of force v. the respective mental and physical conditions of each.iii. Does lack of physical resistance = lack of force? i. move away from resistance. psychological or intellectual force: respective ages of the V and the A. less regret? E. NJ: new definitions of force. psychological or intellectual threats ok 3. PA: Forcible compulsion includes not only physical force or violence but also moral. NC: Δ must intend that threat to achieve sex (not to generally make V afraid of them) and V must understand the threat in that way (must give into nonconsensual sex because of that threat) c.g. moral. saying “no” is NOT enough. focus alone on conduct of the Δ 1. camping trip story 2. Most women NOT conditioned to resist: “school boy playground” rules. forcible = need not go beyond penetration v. Avoids message of PA: V needs to vigorously resist and bring force upon herself. Proving Force a. the atmosphere and physical setting in which the incident was alleged to have taken place. Force Overview: 1. BUT: actively resisting: less psychological harm. Significant factors to be weighed for moral. resistance generates more physical harm a. psychological or intellectual factorsV needs to vigorously resist. V never has a chance to resist (clubbing over head) ii. Actual force: more physical injuries b. or Δ must use threats that would overcome the will of ordinary V because she fears grievous injury iv. if don’t succeedmaybe they’ll stop) 4. shifting of concern to what Δ does. or custodial control. use of actual force a. MD: force tied to resistance b. MD: threats can be express or implied d. Consent + lots of forceNOT RAPE 2. Berkowitz 1. State of NJ 1. psychological or intellectual force used to compel a person to engage in sexual intercourse against the person’s will. NJ: force= any degree of physical power or strength used against the V. the extent to which the A may have been a position of authority. does NOT require the V to have demonstrated non-consent 2. Threats of force: a. absent moral. penetration alone is enough (no need to consider resistance).
You can tell what the mens rea is by analyzing the mistake defense 1. rebuts evidence that Δ was source of semen 5. NY requires a bit more: a. Spheres of consent: underage girls (no sexual freedom) vs. NY: i. In the “interests of justice” ii. i. prostitutes (not “rapable”) b. NY: ripping off clothes. sexual penetration may = force (NJ) 3. picking up and moving to another location. MA courts analogized to statutory rape case 4. Williams-must have substantial evidence of equivocal conduct on the part of the female. need not be reasonable (CA: People v. PA) iii. Mens Rea with respect to V’s lack of consent: negligence 5. awareness. what force is enough: has not adopted CA penetration. purpose to exclude because prior sexual history unjustly affects credibility of claim that sex is non-consensual. belief that the person doesn’t want to have sex (underlying: must have an awareness that the Δ had an awareness/believed that V HADN’T consented) 2. Resistance: forcible rape even though no resistance? 1. psychological or intellectual force (NJ. silent statute: reckless mens rea c. not much differs between sex and rape ii. MD) ii. statutory rape) a. MAJORITY: reasonable. some courts lack of resistance is Rusk like 2. intent to forcibly compel another to engage in sex or sodomy i. rebuts evidence that V failed to engage in sex or sex acts during a given time period 4. says law: a man’s perception of what the act is. good faith mistakes a. MPC: negligent mistake is a defense a. Exceptions apply when the evidence: 1. MA: No mistake will ever be enough (e. Mens Rea of Rape: General Intent a. pinning shoulders down 39 . force can consist of moral. Mistaken Belief Defense: does the mistake negative the mens rea requirement. General Intent Requirement a. “I was raped. Overview/Considerations: i. Mens Rea with respect to V’s lack of consent: strictly liable.g. implicit: knowledge. Lack of consent + without specific “force”NOT RAPE (NC. NY/CA: Honest/good faith must be credible (testimony must be believed)NY is purely elemental. must be “an air of reality”) a. proves V had a prior relationship with accused 2. proves V was/is a prostitute (“not rapable”) 3. Mens Rea with respect to V’s lack of consent: must be knowing 3. Rape Shield Laws: generally evidence of V’s sexual history not admissible.f. McKinnon i. but not by a rapist” un-redressed harms iii.
Specific to one or two types of crimes. statute of limitations. JUSTIFICATION a. I. Justifications i. not an unlawful killing because of additional facts/circumstances. not particular to one offense d. Mistake defenses. DEADLY SELF DEFENSE: 1. SELF-DEFENSE: one can use force in self defense if one reasonably believes one needs such force to protect oneself from imminent use of unlawful force. deadly cannot be used to respond to non-deadly (even if this is the only way to avoid the injury. REQUIREMENTS: 1. Proportionality rules: 1. disability that exits that eliminates moral blameworthiness) e. deadly force: intended to cause death or serious bodily injury. unlawfulness: 4. necessity: may not use deadly force if nondeadly force will apparently suffice 2. regardless of whether V dies 2. Non-exculpatory public policy defenses i. All elements are met. diplomatic immunity. reasonableness: based on reasonable appearances rather than on objective reality. incompetence to stand trial 2. e. and executive immunities. judicial. NY Burnholdt defense regarding participants in crimes c. All elements are met BUT not a criminal act (even though element of social harm is met). 5. non-deadly can be used to respond to deadly 3. Offense modifications i. BUT actor not culpable. the V must suffer the assault of being punched if only other option is to push assailant into oncoming traffic) 40 .GENERAL DEFENSES TO CRIMES 1. Categories: a. felony murder in 1. Excuses i. deadly can be used to respond to deadly 2. proportionality: a person is not justified in using force that is excessive in relation to the harm threatened. legislative.g. if Δ reasonably believes and has objective grounds for believing that such force is necessary to repel an imminent unlawful attack ii.e. i. because of mistake of factfailure of proof of mens rea b. imminence: 3. Failure of proof i.
(c) Except as required by paragraphs (a) and (b) of this Subsection. NOR IS IT JUSTIFIABLE IF: 2.20. A person may not use DEADLY PHYSICAL FORCE upon another person under circumstances specified in subdivision one unless: (a) The actor reasonably believes that such other person is using or about to use deadly physical force. or (b) He or she reasonably believes that such other person is committing or attempting to commit a kidnapping. although the arrest is unlawful.30. (b) The use of DEADLY FORCE IS NOT JUSTIFIABLE under this Section UNLESS the actor believes that such force is necessary to protect himself against death.06. UNLESS he was the initial aggressor or is assailed in his place of work by another person whose place of work the actor knows it to be. doing any other act that he has no legal duty to do or abstaining from any lawful action. except that the actor is under no duty to retreat if he or she is: (i) in his or her dwelling and not the initial aggressor. and the circumstances are such that the use of deadly physical force is authorized by subdivision three of section 35. or AGGRESSOR EXCEPTION: WITHDRAWING & EFFECTIVELY COMMUNICATING WITHDRAWAL (c) The physical force involved is the product of a combat by agreement not specifically authorized by law. the actor may not use deadly physical force if he or she knows that with complete personal safety. however. (a) The use of force is NOT JUSTIFIABLE under this Section: (i) to resist an arrest that the actor knows is being made by a peace officer. without retreating. and RETREAT-EXCEPT DWELLING (UNLESS WAS THE INITIAL AGGRESSOR) & WORK (BUT CAN’T ALSO BE THE INITIAL AGGRESSOR’S TOO) (B) a public officer justified in using force in the performance of his duties or a person justified in using force in his assistance or a person justified in using force in making an arrest or preventing an escape is not obliged to desist from efforts to perform such duty. subject to the provisions of subdivision two. unless the person confined has been arrested on a charge of crime. use physical force upon another person when and to the extent he or she reasonably believes such to be necessary to defend himself. (a) The latter's conduct was provoked by the actor with intent to cause physical injury to another person. forcible rape. RETREAT EXCEPT THAT : (A) the actor is not obliged to retreat from his dwelling or place of work. Subject to the provisions of this Section and of Section 3. The justification afforded by this Section extends to the use of confinement as protective force only if the actor takes all reasonable measures to terminate the confinement as soon as he knows that he safely can. surrendering possession. acting pursuant to section 35.09. except that this LIMITATION SHALL NOT APPLY IF: (A) the actor is a public officer acting in the performance of his duties or a person lawfully assisting him therein or a person making or assisting in a lawful arrest. or PROVOCATION/AGGRESSOR-SAME ENCOUNTER (ii) the actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action that he has no duty to take.04 (1) Use of Force Justifiable for Protection of the Person. a person employing protective force may estimate the necessity thereof under the circumstances as he believes them to be when the force is used. 41 .00 1. (3) Use of Confinement as Protective Force.SELF DEFENSE MPC § 3. with the purpose of causing death or serious bodily injury. (i) the actor. provoked the use of force against himself in the same encounter. or (C) the actor believes that such force is necessary to protect himself against death or serious bodily injury. or RETREAT-EXCEPT DWELLING (BUT NOT THE INITIAL AGGRESSOR’S) (ii) a police officer or peace officer or a person assisting a police officer or a peace officer at the latter's direction. or (ii) to resist force used by the occupier or possessor of property or by another person on his behalf. the use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion. where the actor knows that the person using the force is doing so under a claim of right to protect the property. unless: (2) LIMITATIONS on Justifying Necessity for Use of Force. to oneself and others he or she may avoid the necessity of so doing by retreating. or (c) He or she reasonably believes that such other person is committing or attempting to commit a burglary. forcible criminal sexual act or robbery. herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person. serious bodily injury. kidnapping or sexual intercourse compelled by force or threat. except that in such case the use of physical force is nevertheless justifiable if the actor has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened imminent use of unlawful physical force. Even in such case. or (B) the actor has been unlawfully dispossessed of the property and is making a re-entry or recaption justified by Section 3. NY § 10. A person may. effect such arrest or prevent such escape because of resistance or threatened resistance by or on behalf of the person against whom such action is directed. or PROVOCATION/AGGRESSOR (b) The actor was the initial aggressor.
g. who first uses force can still claim SD-U.08 in using force upon or toward the person of another but he recklessly or negligently injures or creates a risk of injury to innocent persons. rape 2.09 (1) The justification afforded by Sections 3. inclusive. actor’s purpose must be to cause death or serious bodily injury 4. LIMITS OF SELF DEFENSE 1.03 to 3.03 to 3. Δ unlawfully brandishing a weapon in a threatening manner.07. Five features of aggression: i. kidnapping. but who does not use it is an aggressor). It is incorrect to state that the first person who uses force is always the aggressor 1. authorized to protect self and others from deadly physical force. and (b) his error is due to ignorance or mistake as to the provisions of the Code. forcible criminal sexual act. no matter how provocative is LAWFUL 42 . Aggressor limitation only for DEADLY FORCE. as the case may be. a. A person is an aggressor even if he starts a nondeadly conflict (not in MPC) ii. authorized to protect self and others from deadly physical force 2. i. 1. v. NO Mistake of law (2) When the actor believes that the use of force upon or toward the person of another is necessary for any of the purposes for which such belief would establish a justification under Sections 3.08 but the actor is reckless or negligent in having such belief or in acquiring or failing to acquire any knowledge or belief that is material to the justifiability of his use of force. No duty to retreat if believes other person is committing or attempting to commit kidnapping. brandishing gun upon discovering V was stealing windshield wipers.S. the person threatened. limited rights for defense of property iii. Duty to retreat only if deadly force except home or work (unless aggressor works there too) Modified by § 3.04 to 3. suffices to establish culpability. It is possible to have multiple aggressors: nothing in the definition requires a Δ to initiate provocation iv. is UNAVAILABLE when: (a) the actor's belief in the unlawfulness of the force or conduct against which he employs protective force or his belief in the lawfulness of an arrest that he endeavors to effect by force is erroneous. burglary when person is in occupied bldg iii. the justification afforded by those Sections is unavailable in a prosecution for such recklessness or negligence towards innocent persons NO transferred intent Hard to prove: must show Δ took an unjustifiable risk (gross deviation) in light of circumstances 1. one whose affirmative unlawful act reasonably calculated to produce and affray foreboding injurious or fatal consequences. the justification afforded by those Sections is unavailable in a prosecution for an offense for which recklessness or negligence. forcible rape. intent to cause physical injury is enough 2. b. proportionality issues: e. aggressor limitation for BOTH deadly and nondeadly (unless withdrawal + communication). AGGRESSORS: “clean hands” approach.e. any other provision of the criminal law or the law governing the legality of an arrest or search. Negligence or reckless mistake depending on the mens rea req of the offense (3) When the actor is justified under Sections 3. “present occasion” more broad --relaxes imminence? 3. or robbery.DISTINCTIONS 1. a person is NOT an aggressor if his conduct. Peterson.
B starts to batter A’s head savagely against the floor 4. EXCEPTIONS: i. Rule is strictly applied II. the issue of whether a Δ lost the right of SD in a conflict is ordinarily left to the jury to decide on the meaning of the term aggressor vi.g. Regaining the right of SD: rule of renunciation: i. Castle (even where V is co-dweller). HYPO (Note 3. Δ must know of escape option (apparent) iv. MPC) 1. RETREAT: before responding to person threatening you: is there an apparent. Δ arms self with licensed gin. purpose was not to kill c. e. and since B is still attacking him and A now fears if thrown again to the floor. If fails to retreat when could do so. visible to onlookers. pg 491): 1. DEADLY FORCE: in the event that he communicates to his adversary his intent to withdraw either expressly or impliedly and in good faith attempts to do so is he restored to his right of self-defense 1. only associated with deadly SD (NY. NY and common law: A doesn’t qualify as an aggressor 2. NY? iii. Many cts: when Aggressor initially used nondeadly force. does have right of SD: 43 . majority of states retain 2. A uses a knife 5. if V pursues himthen may use deadly force. Analysis: a. Δ may arm himself in order to proceed upon his normal activities. if no guarantee of complete safety iii. B’s act is unlawful (batters head savagely) because it is disproportional to A’s attack b. some states mitigate to manslaughter 2. NY: castle only (but NOT if person was the initial aggressor) ii. Δ not an aggressor. NON DEADLY FORCE 1. but adversary responds with deadly forceA automatically regains rt of SD a. B defends himself and subdues A to the floor 3. pg 491): bully threatens to kill Δ if she walks along her daily route again. work (MPC)-limits and deters people who want to make threat 1. A manages to rise. reasonable escape route which would provide complete safety. he will die. V approaches menacingly. At point 3. MPC A doesn’t not qualify as an aggressor. even if he realizes the danger may await him (but remember retreat rules) 2. Hypo (note1 A. Δ shoots and kills a. Some cts: Δ must find obviously safe retreat. A attacks B with his fists 2. Most states: Words NOT enough to qualify as an aggressor for SD v.1. Aggressor requirement as separate initial inquiry 1.
SD as complete defense: so no partial/mitigationif no SD. MPC 3. physical attributes of all persons involved. must still make out all elements of offense to get to SD (Goetz subway case) 4.i. gender. age of Δ and potential assailants 3. Subjective elements: determination of reasonableness based on circumstances facing the Δ or his situation (encompasses more than the physical movements of the potential assailant): 1. BUT under MPC. necessity ≠ proportionality ii. NY: mixed objective-subjective standard. SD claim fails because she fails to retreat i. act not unlawful. i. any prior experiences Δ had which could provide a reasonable basis for a belief that another person’s intentions were to injure or rob him or that the use of deadly force was necessary under the circumstances iii. even if he realizes the danger may await him b. any relevant knowledge the Δ had about that person 2.04 requirement: complying with demand that she abstain from any action that she had no duty to take ii. Apply all elements i. including those known substantially before the killing 1. Remember: conscious objective to kill not necessarily inconsistent with SD. Reasonable belief and gender: i. allowing claim based sheerly on necessity 2. Fair/reasonable because Δ is aware of and thinking about all facts at the time (Wanrow) 44 . knowing crime (conscious objective to kill) ii. Implication: bullies can threatenhalf the states have rejected rule of retreat (FL). REASONABLENESS 1. Imminence: the justification of SD is to be evaluated in light of all the facts and circumstances known to the Δ. A Δ may arm himself in order to proceed upon his normal activities. Was his belief reasonable? 2. can stand your ground 3. No alternative for battered woman: relax rule for small woman. including the Δ 3. could be completely liable for intentional. clothing worn by potential assailants 2. Other controversial subjective considerations 1. Affects proportionality 1. ii. What did Δ believe? ii. race.
etc.g. Need to do the act must have been immediate and dire 4. SD.) iii. lesser harms theory: society suffers lesser harms to avoid greater harms (harm to sexual autonomy) dominates thinking about justification defenses b. lack of imminence= lack of necessity b. SD overview 1. when assailant is unconscious): worry about Vs taking the law into their own hands a. 1. this is lawful ii. moral forfeiture: death of would-be rapist outweighed by harm of rape. to ensure that SD is necessary. doesn’t require person facing the threat to be the only one who carries out. person who is V is someone who was attacking Δ 1. Rationale: i. Battered Woman’s Syndrome: testimony meant to prove her reasonable belief that it was necessary to kill 1. preemptive SD 2. No adequate alternative 1. SD is universal. not particular to the Δ itself. other options (police. The Δ had to have done the act to prevent a significant evil 2. Limited to threats from natural forces 45 . kidnapping. **BUT undermines gender-power issues. Rationale: 1. NOT just about personal benefitmore about general welfare of the community. waiting until heat of battle c. moral superiority: morally superior person empowered with right to kill morally inferior 3. abuser might stop ii. Problematic because missing imminence of the harm (e. Captures lesser harm theory ii.iii. Non-defensive Force Justification: General NECESSITY Defense i. Defense against forcible rape. Harm caused must be less than harm Δ sought to avoid (lesser harm theory) i. ii. other person will have justification 2. defensive force justification: i. i. Message: this is the right thing. lack of realistic alternatives 4. others 5. CHIEU’S COMMON LAW ELEMENTS mixed objective-subjective standard (State v Nelson stolen highway truck case). also only assume what is reasonably foreseeable to him at that moment 3. even if fulfills elements of accomplice. V forfeited right to life 2.
and (b) neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved. other harm) 2. the law makers must not have anticipated the choice of evils and determined the balance to be struck in a manner in conflict with Δ’s choice.1. (2) When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his conduct. the Δ must expect. constitute a defense. No imminence req! 3. 6. the harm that Δ will cause must be less serious that the harm he seeks to avoid a. no defense for offenses with reckless or negligence culpability req NECESSITY MPC § 3. must not have wrongfully placed himself in a situation which he would be forced to engage in criminal conduct DISTINCTIONS 1. the justification afforded by this Section is unavailable in a prosecution for any offense for which recklessness or negligence. public or private injury 46 . *The Δ had to have done the act to prevent a significant evil *No adequate alternative **Harm caused must be less than harm Δ sought to avoid (lesser harm theory) ***NOT just about personal benefitmore about general welfare of the community. homicide 3. arguably does not apply in homicide case 3. either in its general application or with respect to its application to a particular class of cases arising thereunder. Δ’s actions should be weighed against the harm reasonably foreseeable at the time b. Whenever evidence relating to the defense of justification under this subdivision is offered by the defendant.No limitations for natural forces. the court shall rule as a matter of law whether the claimed facts and circumstances would. that his action will be effective in abating the danger that he seeks to avoid. ***also only assume what is reasonably foreseeable to him at that moment *Need to do the act must have been immediate and dire *Limited to threats from natural forces Other Common law considerations 1. Clean hands. causal relationship between action and harm averted 3. there must be no legal way to avert the harm 4. and which is of such gravity that. and (c) a legislative purpose to exclude the justification claimed does not otherwise plainly appear. the actor must be faced with a “clear and imminent danger” 2. Statutes COMMON LAW ELEMENTS mixed objective-subjective standard (State v Nelson stolen highway truck case). 1. No limitations (natural forces. as a reasonable person. Objective: reasonable person in their situation 4. the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue.05 (2) 2. homicide cases. whether Δ’s value choice was correct (as opposed to his belief that it was correct) 5. provided that: (a) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged.Defense not automatically lost if fault (partial defense) if reckless. according to ordinary standards of intelligence and morality. The necessity and justifiability of such conduct may not rest upon considerations pertaining only to the morality and advisability of the statute. if established. as the case may be. NY § 35.02 “Choice of Evils” (1) Conduct that the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable. some limit the defense to persons and property (no protection of reputation or economic interests) 1. suffices to establish culpability. Such conduct is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor. If faultNO defense 2. Sometimes limited to emergencies created by natural forces 2.
any reasonable obstruction ok (even corrupt cops. no reasonable opportunity to escape 1. objectivity: will deny defense to “scaredy cats” 3. (Note 4. DURESS i. Immediacy 2. must be specific. keeping commitment to free will a. risk to society of escaped convicts) less than harm escapee avoids? 3. immediate: no future threats 2. Immediacy. Δ must not have made himself susceptible to duress (i. Application to Prison Escapees (Green) 1. excuses the particular person. as opposed to Dudley and Stephens who wanted boy to die iii. joining gang) 5. The surgery is certain to kill one twin. Distinguish Dudley & Stephens: i. ELEMENTS: 1. Problems with NECESSITY defense: 1. NOT what person threatening them wanted them to do 3. lesser harm: harm caused by escaping (maintain prison discipline. pg 572) 1. Without the surgery both twins certain to die because one is sucking the life out of the other. So. an immediate threat of death or serious bodily injury 1. Hypo: doctors choose to separate conjoined twins. no real defense available to prison escapees! 47 . but still have privilege ii. Free from fault: 3. Contento-Pachon) 4. Distinguishing from Dudley & Stephens 1. well grounded fear that threat will be carried out 1. free from fault 1. Problems with DURESS: 1. certainty: certain that both twins will die 3. court concerned about message future escapees 4. Facing charge of escape. double-effect doctrine: if doctors could save Mary’s lifethey would. EXCUSE DEFENSES: doesn’t excuse the harm. Some jurisdictions: if Δ escapee makes a bona fide claim and then returned to prison after necessity has subsided 2. doctors not the one about to die.e. Δ has to be facing a criminal charge for the very behavior the coercer wanted him to do ii.iii. natural forces problem (assuming common law) 2.
objective standard: person of reasonable firmness Distinct from Common Law: 1. like Dudley and Stephens) 2. Δ has to be facing a criminal charge for the very behavior the coercer wanted him to do DURESS MPC § 2. Some courts allow for mitigation to manslaughter (partial defense) 48 .e. or a threat to use. BUT not about choice of evils. well grounded fear that threat will be carried out b. unlawful force against his person or the person of another. duress not about lesser harm. Duress as Defense to MURDER 1. whenever negligence suffices to establish culpability for the offense charged.iii. this Section does not preclude such defense.09 (1) It is an affirmative defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of. immediate: no future threats 2. (3) It is not a defense that a woman acted on the command of her husband.] (4) When the conduct of the actor would otherwise be justifiable under Section 3. [The presumption that a woman acting in the presence of her husband is coerced is abolished. defense may be raised in murder prosecution 3. joining gang) 5. Contento-Pachon) free from fault 4. or even as the result of prior use of non-deadly force… depends on reasonable person’s reaction. that a person of reasonable firmness in his situation would have been unable to resist. Unlawful source=must be must be human coercion (no situational distress. Some courts reject altogether: duress is no defense for killing an innocent person. no requirement that imperiled person be a family member 1. (NECESSITY) NY § 40. person ought to rather die himself than escape by the murder of an innocent (Blackstone) 1. The defense is also unavailable if he was negligent in placing himself in such a situation. 2. no requirement that imperiled person be a family member iv. imminency req 4. People v Anderson i. objectivity: will deny defense to “scaredy cats” 3. any reasonable obstruction ok (even corrupt cops. DISTINCTIONS Similarities to Common Law: 1. The defense of duress as defined in subdivision one of this section is not available when a person intentionally or recklessly places himself in a situation in which it is probable that he will be subjected to duress. unless she acted under such coercion as would establish a defense under this Section. Δ must not have made himself susceptible to duress (i. (2) The defense provided by this Section is unavailable if the actor recklessly placed himself in a situation in which it was probable that he would be subjected to duress. but what if 2 lives v 1 life). Statutes: COMMON LAW 1. no reasonable opportunity to escape a. which force or threatened force a person of reasonable firmness in his situation would have been unable to resist. clean hands NO fault 3.00 1. No requirement of imminent deadly threat (may successfully plead duress upon non-deadly or future threats. brainwashing may be OK 2. No limitation for homicide BUT not affirmatively allowed either 2. only threats to bodily integrity 3. an immediate threat of death or serious bodily injury a. Some courts base on lesser harm theory (avoid valuation for lives. it is an affirmative defense that the defendant engaged in the proscribed conduct because he was coerced to do so by the use or threatened imminent use of unlawful physical force upon him or a third person.02. In any prosecution for an offense. harm is admittedabout culpability 2. clean hands depending on mens rea 4. must be specific.
voluntary intoxication typically constitutes reckless conduct MPC § 2. such unawareness is immaterial. 1. drugged. e. intoxication of the actor is not a defense unless it negatives an element of the offense. Duress as excuse: 1.g. Intoxication is NOT a defense to general intent crimes. if the actor. Δ is NOT permitted to introduce evidence that because he was intoxicated. To be a complete defense.b. but in reality Δ NOT denying he did it (Green) ii. Necessity as justification. unless he introduces them pursuant to medical advice or under such circumstances as would afford a defense to a charge of crime. due to self-induced intoxication. General welfare (necessity) v. BUT society interested in many instances of “private welfare” i. Voluntary v. MPC: To prove “insane-like” mental state. NY: to negate element including all types of mens rea 3. (b) "self-induced intoxication" means intoxication caused by substances that the actor knowingly introduces into his body. Involuntary: Three Approaches to Involuntary Intoxication: 1. but in any prosecution for an offense. General Intent Distinction 1. as such. duressstill a harm C. Specific Intent v. given the amount of the intoxicant. Statutes: INTOXICATION COMMON LAW 1.25 Intoxication is not. constitute mental disease within the meaning of Section 4. is unaware of a risk of which he would have been aware had he been sober. to which the actor does not know he is susceptible. the tendency of which to cause intoxication he knows or ought to know. a defense to a criminal charge. “DIFFERENCES” BETWEEN NECESSITY AND DURESS i. without regard to mens rea 2. all about the message. Duress: Δ lacks mens rea: 1. no real substantive differences: a lot of states have abandoned distinction iii. Ask: did the person have substantial capacity to appreciate criminality of the offense (even if involuntarily intoxicated. in itself. Private welfare (duress) 1. (3) Intoxication does not. necessity“right” thing to do.01. 49 . In this Section unless a different meaning plainly is required: (a) "intoxication" means a disturbance of mental or physical capacities resulting from the introduction of substances into the body. (4) Intoxication that (a) is not self-induced or (b) is pathological is an affirmative defense if by reason of such intoxication the actor at the time of his conduct lacks substantial capacity either to appreciate its criminality [wrongfulness] or to conform his conduct to the requirements of law. Distinction between natural and human threats: 1. INTOXICATION i. Necessity: Δ lacks actus reus. NY § 15.08 (1) Except as provided in Subsection (4) of this Section. Typically intoxication is NOT a defense to general intent crimes ii. evidence of intoxication of the defendant may be offered by the defendant whenever it is relevant to negative an element of the crime charged.e. need to avoid prison rapes and cruel and unusual punishment iv. person still may have capacity to appreciate conduct) iii. he became confused and V consented (consistent with traditional view of mens rea) 2. (2) When recklessness establishes an element of the offense. (c) "pathological intoxication" means intoxication grossly excessive in degree. (5) Definitions.
INTOXICATION COMMON LAW MPC § 2. Hypo: A believes carving fruit.25 To negate any element including all types of mens rea INSANITY i. Tests 1. No volitional component ii. MPC: cognitive + volitional 1. misperception of reality 2. societal morals c. She did not know the nature and quality of the act that she was doing. What is mental disease or defect? 1.05 Reckless distinction for voluntary intoxication. she did not know what she was doing was wrong i. personal morals b. Sociopathy NOT described as a mental disease or defect 2. but are beyond her control 3. A person is not responsible for her criminal conduct if. The Δ’s will has been otherwise than voluntarily so completely destroyed that her actions are not subject to it. Hypo: A believes V is taking over the world and going to kill A 3. A person is excused if her unlawful act was the product of a mental disease or defect. Irresistible Impulse: volitional component: Δ is insane if: 1. The Product Test (Durham): causal link is key 1. Criticism: i. at the time of the conduct. as the result of a mental disease or defect. i. can never get off for reckless crimes D. or 50 . and to avoid doing the act in question. actually carving V’s head 2. as that her free agency was at the time destroyed ii. If she did know it. moral wrong a. or i. she lacked substantial capacity to: i.08 Distinctions Will acknowledge involuntary intoxication only to prove “insane-like” mental state (could still have awareness) Vol intoxication: evidence admitted ONLY if negates any element including all types of mens rea NY § 15. She acted from an irresistible and uncontrollable impulse i. legal wrong 2. not legal decision makers 4. Must decipher meaning of “wrongfulness” (see MPC) 1. M’Naghten Test: cognitive component: Δ is insane if: 1. Appreciate the criminality (wrongfulness) of her conduct. ceding to medical decision makers. NY § 15. Lost the power to choose between the right and wrong. Criticism: i.
sociopaths iii. he lacked substantial capacity to know or appreciate either: 1. on the basis of the criminal code. arising from a disease of the mind. that she: 1. Three interpretations of morality (State v Wilson) a. under the circumstances as he honestly perceives them. “Substantial”: need not show total incapacity to control one’s self or appreciate their behavior iii. To conform her conduct to the requirements of the law NY § 40. to excuse all those who have superficial understanding of right and wrong. Misperception of reality i. Distinctions: i. acts contrary to public morality = penal code ii. she was laboring under such a defect pf reaspn.ii. Rejected by all states c. she lacked substantial capacity to: 1. she was unable to appreciate i. Synonymous with criminality. She nature and quality of her conduct. it is an affirmative defense that when the defendant engaged in the proscribed conduct. that at the time of the offense. as the result of a mental disease or defect. Did not know the nature and quality of the act that she was doing. Contrary to one’s own conscience (personal morality) i. Definition of Insanity: standard is high to exclude certain mental diseases/defects that policydriven approach says Δ’s still culpable 1. or ii. Wrongful/Criminal 1. That such conduct was wrong. Contrary to public morality i. his actions do not offend societal morality. or 2. The wrongfulness of her conduct ii. does not condone his actions (State v Wilson) ii. he lacked criminal responsibility by reason of mental disease or defect. E. knowledge/ nature and quality 2. Deity exception b.Appreciate the criminality (wrongfulness) of her conduct. A person is excused if she proves by clear and convincing evidence. she did not know what she was doing was wrong Criticisms: 1. Statutes INSANITY COMMON LAW M’Naghten Test: cognitive disability A person is insane. even though he may also be aware that society. or 2. as the result of a severe mental disease or defect.01 A person is not responsible for her criminal conduct if. as a result of mental disease or defect. The nature and consequences of such conduct.g. at the time of the conduct. if at the time Of her act.15 In any prosecution for an offense. 51 . e. Such lack of criminal responsibility means that at the time of such conduct. To conform her conduct to the requirements of the law 2. Appreciate as opposed to “know” 1. A Δ does not truly “appreciate the wrongfulness of his conduct” if a mental disease or defect causes him both to harbor a distorted perception of reality and to believe that. If she did know it. Cognitive + Volitional elements ii. but lack deeper understanding of right and wrong iv. Jurisdictions that adopt wrongfulness over criminality: suggests understanding of moral wrongness 2. or 2. Federal Test 1.g deific command 5. wrongfulness? MPC § 4.
not simply ties to illegality NY § 40. searching for harm: is this a justification defense or an excuse.15 Distinctions: 1. she was 1. cts may allow evidence of planned behavior. “Substantial”: need not show total incapacity to control one’s self or appreciate their behavior 3. or 2. was within a customary license or tolerance. a. but are beyond her control Criticisms: 1. MPC § 2. Cognitive + Volitional elements 2. Requires total incapacity (but not necessarily relevant in practice). She acted from an irresistible and uncontrollable impulse 2. as that her free agency was at the time destroyed 3. not legal decision makers MPC § 4.12 de minimus statute The Court shall dismiss a prosecution if. presents such other extenuations that it cannot reasonably be regarded as envisaged by the legislature in forbidding the offense. Requires total incapacity d. it finds that the defendant's conduct: 1. Appreciate as opposed to “know” to excuse all those who have superficial understanding of right and wrong. did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the condemnation of conviction. as the result of a severe mental disease or defect. proof of “severe” mental disease or defect 2. No volitional test 2. neither expressly negatived by the person whose interest was infringed nor inconsistent with the purpose of the law defining the offense.01 Distinctions: 1. was this in the mind of the LEG. and to avoid doing the act in question. The wrongfulness of her conduct Criticism: 1. Wrongful/Criminal Jurisdictions that adopt wrongfulness over criminality: suggests moral component of “wrongness”. or a. Lost the power to choose between the right and wrong. Cultural Defenses and de minimus statute (MPC + about 5 states) i. that at the time of the offense. Δ can show insanity by proving failure to appreciate 3. did it contemplate that people would commit these acts in an unharmful way b. i. having regard to the nature of the conduct charged to constitute an offense and the nature of the attendant circumstances. or a. “affective knowledge”: absent unless the actor can evaluate her conduct in terms of its impact on others and appreciate the total setting in which she actsz 4. but lack deeper understanding of right and wrong. (CONSENT issue) 2. prosecutorial discretion 52 . The Δ’s will has been otherwise than voluntarily so completely destroyed that her actions are not subject to it. Know OR appreciate: meaning either will satisfy. Criticism: ceding to medical decision makers. no foul) 3. Difficult to determine what is irresistible and what is impulse The Product Test (Durham): causal link is key A person is excused if her unlawful act was the product of a mental disease or defect. Other safety valves besides de minimus statutes: 1. (no harm.INSANITY COMMON LAW Irresistible Impulse: volitional component Broadens scope of M’Naghten A person is insane. substantial capacity FEDERAL TEST A person is excused if she proves by clear and convincing evidence. most courts and commentatorsexcuse ii. unable to appreciate the nature and quality of her conduct. if at eth time of the offense: 1. as long as lacked ability to control conduct 2.
jury nullification: jury can say elements fulfilled. leniency a. sentencing: cruel and unusual punishment. suspended sentence may take a while to kick in – meanwhile some form of punishment was imposed from the get-go (i. duress: external forces iii.e. cultural: external. BUT collateral consequences: deportation. intoxication and insanity: must be internal forces 1. but still acquit 3. where is the stopping point: abuse-excuse.2. vs. child welfare case) iii. Menendez brothers ii. external indoctrination (Cabarga) a. environmental 53 . Overview: internal and external forces requirement i. what about practices like genital mutilation? e. really buying into the fact that the culture doesn’t think its harmful? a. sex offender provisions. but doesn’t happen in a moment of time. felony disenfranchisement. Problems with cultural defenses 1.
U: prevention of future harm. Actor does such physical acts with the specific intent of committing the target. only intentional crimes in which Δ can be accused of attempting: e. Line drawing more difficult in incomplete attempts: which behavior is innocent ii. conspiracy) lack the usual understanding of social harm 2. can only attempt intentional crimesBUT THIS APPARENTLY MEANS “INTENT” AS DEFINED IN THE COMMON LAW (WHICH INCLUDES KNOWING AND INTENTIONAL CRIMES) THIS WAS VERY TRICKY ON OUR EXAM! SO YOU CAN ATTEMPT A KNOWING CRIME (LOOK AT DRUG CRIMES IN THE NYPL)***************************** 7. Inherent in the understanding of attempt is the objective to commit the completed crime 1. kill 1. Actor intends to commit the physical acts that constitute the attempt b. solicitation. Not necessarily deterrence: because attempters are attempting a more serious offense b. substantive crime i. Inchoate crimes (attempt. attempted voluntary manslaughter: still intent to kill iii. Whether there is any act Δ that corroborates suspected mens rea 4. but through some fortuitous event he isn’t successful i. attempted felony murder 2. McQuirter case: man follows woman and kids 3. but doesn’t do them all for some reason doesn’t get to final acts c. So even though various mens rea alternatives are available to prove murder. Zero on in what Δ was trying to do: look to mens rea b. Specific intent to rape. other alternatives NOT enough to prove attempted murder for which only intent will suffice ii. incomplete: where actor does some act. Objectivism a. Complete: actor has done everything physically necessary in their power to commit crime. R: same moral culpability. Subjective Approach: try to decipher Δ’s mens rea Conduct of hypothetical law abiding citizen Δ’s conduct Conduct of hypothetical Δ who is guilty of completed crime 54 . Why the distinction between complete and incomplete? i. no such charge of attempted reckless murder. transferred intent: hurts someone else b. Distinguish: transferred intent 1. Dual Mens Rea of Attempt: a. Rationales for criminalizing attempt a. Objective approach: look at acts alone are they evidence of criminality/suspicious acts b. Two categories of attempt a. perhaps aggravated assault 3. Subjectivism a.ATTEMPT 1. Focus on acts alone would they raise suspicions (absent suspicions about moral culpability) 5. Tests for Attempt: looking at actus reus a.g. make the same choice as a rapist 6. allows police to intervene earlier i. attempt: no harm.
Distinct from dangerous proximity: concerned with physicality. the actor’s conduct must be “proximate” to the completed crime. i. raises the bar for abnormal step test (McCurter may get off) i. objectivist goal of reserving criminal liability for those whose conduct manifests criminality and. and 55 . Ask: would the Δ have completed the offense but for the intervention? 1. unambiguously manifests her criminal intent.00: conduct which tends to effect the commission of such crime. Dangerous Proximity Test: a person is guilty of attempt when her conduct is in dangerous proximity to success or when an act is so near the result that the danger of success is very great i. Unequivocality Test (res ipsa loquitor): act does not constitute an attempt until it ceases to be equivocal. in that it must approach sufficiently near to it stand either as the first or some subsequent step in a direct movement towards the commission of the offense after the preparations are made i. continues to be interpreted as dangerous proximity d. The Abnormal Step Test: an attempt is a step toward crime which goes beyond the point where the normal citizen would think better of his conduct and desist. Note 2. may not adequately iii. Again looking at gap that separate attempt crime from completed crime f. 3. might lead to over-criminalization of innocent preparation h. nearness of the danger 2. focuses on mental state of Δ ii.c. Message to cops: be patient and wait for more actus reus. The purpose to commit the target offense. MPC Test: i. causes social apprehension ii. Lenient test. pg. Indispensable Element Test: does the Δ have everything he needs to commit the crime otherwise has not yet crossed the line from preparation i. presence of the V ii. focus on steps Δ has taken. Different gap: between conduct of hypothetical law abiding citizen and Δ’s conduct. Criminal intent under the Code contains two elements: 1. greatness of the harm 3. Otherwise punish for mens rea alone (bad thoughts and bad thoughts) iii. NY lang: § 110. standing alone. Rizzo) b. BUT perhaps in view of the seriousness of the planned offense and the degree of apprehension felt by the officers who observed the Δ’s actions 2. the actor reached a point where it was unlikely he would have voluntarily desisted from his effort to commit the crime i. Holmes’ three factors 1. Physical Proximity Test: while it need not reach the last act.e. centers on how far Δ has proceeded. criticism: a later act can render act equivocal. easy to satisfy: do the actions of the Δ raise your antennae 1. not focusing on possibility of stoppingrather is it unlikely that Δ will stop g. i. focus on mens rea of Δ iii. if victim is absent: need more actus reus: (People v. Probable Desistance Test: centers on how far Δ has proceeded. how physically close to V/committing the crime ii. when a person’s conduct. as a consequence. Measured up against normal citizen ii. Similar to dangerous proximity: still looking at the gap e. Problems a. Even if element is not within their control: i. degree of apprehension felt ii.
The mens rea of purpose or belief does not necessarily encompass the attendant circumstance of the crime iv. is the target offense a “result” crime sub (b) or a “conduct” crime sub (a)? 3. to engage in the conduct or to cause the result that would constitute the substantive offense 2. generally a person is guilty of criminal attempt if it was her purpose or conscious object. considered in light of all the circumstances. even if it were not her conscious object to cause it § 5. one who engages in such purposive conduct is sufficiently dangerous to justify state intervention. such as a confession or other incriminating evidence ii. such assistance would have made her an accomplice in the commission of the crime under the Code’s complicity statute if the offense had been committed or attempted c. 1(a) a Δ is guilty of an attempt to cause criminal conduct: if the circumstances were as she believed them to be. Substantial step: i.01(1)(b) b. Exceptions: a. Does the case involve a complete to incomplete attempt? 2. V may not be overturned on the grounds that the step was insubstantial) b. the purpose of her conduct is to aid another in the commission of the offense. Impossibility: entirely subjective. Mens Rea: 1. Defenses: i.2. If the case involves a complete attempt. Result crimes: a person is guilty of an attempt ro cause a criminal result if she believes that the result will occur. although a crime was neither committed nor attempted by another. if 1. conduct is not a substantial step unless is “strongly corroborates” the Δ’s criminal intent: the actor’s conduct. If incompletesubsection c: did the Δ take a substantial step iii. corroboration of Δ’s criminal purpose is not required 2. must add significantly to other proof of her criminal intent. List of substantial steps if strongly corroborative of Δ’s purpose that shall not be held insufficient as a matter of law (if jury convicts Δ of attempt. Conduct constituting a “substantial step” toward the commission of the target offense ii. Ask: 1. A person may be convicted of criminal attempt. BUT not objective: doesn’t require that Δ’s conduct by itself manifest criminality iii. Attempt to aid: i. even if she is not yet close to consummation of the offense a. 1(b) a Δ is guilty of attempting an particular result if “with the purpose of causing or with the belief that it would cause such a result without further conduct on 56 . abolishes the defense of hybrid legal impossibility 1. Actus reus 1. and 2.
as the offense attempted. 1(c) if Δ performed acts that “under the circumstances as he believed them to be” constituted a “substantial step” toward the commission of the crime ii. Δ tries to sink a battleship with a bb gun. Renunciation (Abandonment) 1.” 3. or to impose a sentence for a crime of lower degree than is otherwise allowed. i. subject to the same punishment. corroboration of Δ’s criminal purpose is not required 3. that increase the probability of detection or apprehension or that make more difficult the accomplishment of the criminal purpose” d. Exception: crimes that carry a maximum penalty of life imprisonment “felonies of the first degree”. e. Grading § 5. and b. solicited. Students did not get to put poison in the coffee ii. BUT renunciation is not complete if it is wholly or in part motivated “by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar objective or victim. Special Mitigation: i. Pure Legal Impossibility: not abolished course of conduct or result must constitute a crime iii. and conspiracy are offenses of the same grade and degree. or that is the object of the conspiracy ii.05 i. Application of MPC (State v. Her conduct manifests a complete and voluntary renunciation of her criminal purpose 2. attempt to commit one of these crimes constitutes a felony of the second degree. not present or apparent at the inception of the actor’s course of conduct. A person is not guilty of attempt if a. Incomplete attempt: did the Δs take a substantial step 57 . Reeves) i. solicitation.e. ALSO not complete if it is wholly or in part motivated by “circumstances. a. j.g.Δ’s part”. The Code grants the trial judge authority to dismiss a prosecution of an inchoate offense. She abandons her effort to commit the crime or prevents it from being committed. the maximum penalty of which is ten years e. if the actor’s conduct was so inherently unlikely to result in a crime that neither she nor her conduct represents a danger to society justifying her conviction and punishment at ordinary levels 1. The crimes of attempt.
1. does or omits to do anything with the purpose of causing or with the belief that it will cause such result without further conduct on his part. acting with the kind of culpability otherwise required for commission of the crime. he engages in conduct which tends to effect the commission of such crime. is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime. Class A misdemeanor when the crime attempted is a class E felony. hypo i. with intent to commit a crime.00: Attempt to commit a crime A person is guilty of an attempt to commit a crime when. Class A-II felony when the crime attempted is a class A-II felony. Rationale: moral culpability is the same 2. 2. 8. NY: drops attempts down a grade 1. criminal possession of a chemical or biological weapon in the first degree or criminal use of a chemical or biological weapon in the first degree. Common Law: punished attempts at half the maximum of completed offense NY § 110 110. Class C felony when the crime attempted is a class B felony. Application of tests: pg 752. Proximity tests: no V present ii. Class D felony when the crime attempted is a class C felony. MPC: punishes the same 1. possession. criminal possession of a controlled substance in the first degree. 3. test is not l. that are specially designed for such unlawful use or that can serve no lawful purpose of the actor under the circumstances. 4. but less inclusive than equivocal test k. § 5. at or near the place contemplated for its commission b. 2. exception: highest level of crimepunishes the same (MPC system). (WHICHEVER MR IS REQ’D FOR ATTENDANT CIRCUMSTANCES)he: COMPLETE ATTEMPTS: (a) purposely engages in CONDUCT that would constitute the crime if the attendant circumstances were as he believes them to be. possession of materials to be employed in the commission of the crime. 5. criminal sale of a controlled substance in the first degree. or INCOMPLETE ATTEMPTS: (c) purposely does or omits to do anything that. Probable desistance: unlikely to desist: depends on voluntary desistance 1. 6. Class E felony when the crime attempted is a class D felony. 7. Class B misdemeanor when the crime attempted is a misdemeanor. Class A-I felony when the crime attempted is the A-I felony of murder in the first degree. collection or fabrication of materials to be employed in the commission of the crime. 58 . More inclusive than last proximate act.01 Criminal Attempt 1) Definition of Attempt. Class B felony when the crime attempted is a class A-I felony except as provided in subdivision one hereof. Proportionality/Punishment i. punishment An attempt to commit a crime is a: 1.05 Attempt to commit a crime. under the circumstances as he believes them to be. Borrows from bests of all tests i. moral choice is more heinous ii. § 110. A person is guilty of an attempt to commit a crime if. or (b) when causing a particular RESULT is an element of the crime. exception for capital crimes: punished at lesser degree (NY system) iii.
(1) Grading. in whole or in part. (e) possession of materials to be employed in the commission of the crime. at or near the place contemplated for its commission. (g) soliciting an innocent agent to engage in conduct constituting an element of the crime. Multiple Convictions Barred. If the particular conduct charged to constitute a criminal attempt. under circumstances manifesting a complete and voluntary renunciation of his criminal purpose. Without negativing the sufficiency of other conduct. 8. is guilty of an attempt to commit the crime. PURE LEGAL IMPOSSIBILITY: when criminal law doesn’t prohibit Δ’s conduct or the result that she has sought to use. but the crime itself has not occurred due to the lack of a particular characteristic. Conduct shall not be held to constitute a substantial step under Subsection (1)(c) of this Section unless it is strongly corroborative of the actor's criminal purpose. factual mistake about legal status of some attendant circumstance that constitutes an element of the charged offense 59 . by circumstances. V has nothing in pocket b. the following. if strongly corroborative of the actor's criminal purpose. if such possession. The establishment of such defense does not. the Court shall exercise its power under Section 6.06 if the crime were committed by such other person. HYBRID LEGAL IMPOSSIBILITY: Δ has committed all the acts of the intended crime. not present or apparent at the inception of the actor's course of conduct. because of Δ’s mistake of fact or law. ABANDONMENT DEFENSE (4) Renunciation of Criminal Purpose.12 to enter judgment and impose sentence for a crime of lower grade or degree or. IMPOSSIBILITY: applies to completed and incomplete attempts. adulterer may believe adultery is still a crime (reverse mistake of law) 1. pick pocket attempts to steal. classic examples: a. An attempt. DEFENSES: TO ATTEMPT CRIMES a. although the crime is not committed or attempted by such other person. however. (b) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission. it is an affirmative defense that he abandoned his effort to commit the crime or otherwise prevented its commission. All jurisdictions accept iii. (c) reconnoitering the place contemplated for the commission of the crime. Renunciation is not complete if it is motivated by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar objective or victim. his actions could not possibly have resulted in the commission of the substantive crime underlying an attempt charge i. collection or fabrication of materials to be employed in the commission of the crime. 5. (f) possession. affect the liability of an accomplice who did not join in such abandonment or prevention.g. Except as otherwise provided in this Section. Within the meaning of this Article. A person who engages in conduct designed to aid another to commit a crime that would establish his complicity under Section 2. This characteristic is necessary in determining the criminality of the acts 1. his mistake doesn’t make his act lawful 2.(2) Conduct That May Be Held Substantial Step Under Subsection (1)(c). renunciation of criminal purpose is not voluntary if it is motivated. that is unknown to the Δ or beyond the Δ’s control 1. solicitation or conspiracy is so inherently unlikely to result or culminate in the commission of a crime that neither such conduct nor the actor presents a public danger warranting the grading of such offense under this Section. in extreme cases. Solicitation and Conspiracy.05. FACTUAL AND PHYSICAL IMPOSSIBILITY: Δ has committed all the acts of the intended crime. shall not be held insufficient as a matter of law: (a) lying in wait. that are specially designed for such unlawful use or that can serve no lawful purpose of the actor under the circumstances. (2) Mitigation. When the actor's conduct would otherwise constitute an attempt under Subsection (1)(b) or (1)(c) of this Section. vehicle or enclosure in which it is contemplated that the crime will be committed. but the crime itself has not occurred due to non-existence of a necessary attendant circumstances. attempt. Grading of Criminal Attempt. (d) unlawful entry of a structure. is no defense in ANY jurisdiction ii. may dismiss the prosecution. solicitation or conspiracy to commit a [capital crime or a] felony of the first degree is a felony of the second degree. (3) Conduct Designed to Aid Another in Commission of a Crime. that increase the probability of detection or apprehension or that make more difficult the accomplishment of the criminal purpose. solicitation and conspiracy are crimes of the same grade and degree as the most serious offense that is attempted or solicited or is an object of the conspiracy. Mitigation in Cases of Lesser Danger. searching for or following the contemplated victim of the crime. Δ makes defense that their actions don’t constitute a crime. e. collection or fabrication serves no lawful purpose of the actor under the circumstances.
U: knowing that there is no way about. Common law does NOT recognize 2. Statutory interpretation: does not allow for defense of impossibility. attempt as a distinct offense: not charged with completing the crime 3. and MPC DO NOT RECOGNIZE! iv.00. c. (People v. Rationale for states that don’t recognize abandonment 1. DISTINCTION BETWEEN FACTUAL AND HYBRID: take away circumstance and entire act becomes LEGAL. e. BUT passes all actus reus tests: b. McCloskey. ABANDONMENT: i. attendant circumstance that Δ was mistaken about also serves as evidence as to their mens rea. When the actor's conduct would otherwise constitute an attempt under Subsection (1)(b) or (1)(c) of this Section. R: Δ culpable. Lady Eldon smuggling “French” lace. first strategy: not enough proof for attempt a.g. thought lace had high value and had to pay high duties. as opposed to pickpocket reaching into empty pocket (what he’s doing still commits a crime) b. Abandonment must be complete and voluntary (doesn’t involve heightened risk of detection) b. in which the defendant's guilt depends upon his criminal liability for the conduct of another person pursuant to section 20. Application: i. Masquerade happens often in states where they don’t recognize abandonment ii. but lace not actually worth much and NOT subject to duties 3. NY and MPC recognize a. NY requires Δ to take additional steps to prevent completed crime i. 2. only the one thing that wasn’t within his control made it not a completed crime ii.2. Punishment for completed crime is enough deterrence for people even preparing iii. majority distorted test to get the result they wanted i. NY: explicitly rejects d. NY. E. States that have abandonment defense: 1. Calling cops ABANDONMENT MPC § 5.01 (4) ABANDONMENT DEFENSE (4) Renunciation of Criminal Purpose. less people will try (there is social harm in trying) a. Concurrence: abandonment defense works better. it is an affirmative defense that he abandoned his effort to ABANDONMENT DEFENSE NY 1. NY: completed attempts. other than an attempt to commit a crime. girls putting poison in the cup and then knocking it out of teacher’s hand ii. 60 . made free affirmative defenses 2.g. Common law: recognizes the defense. Δ confesses to mens rea and confesses to significant acts 2. Abandonment 1. In any prosecution for an offense. Thousand) Mistaken about minor 1.
61 . Renunciation is not complete if it is motivated by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar objective or victim. by taking further and affirmative steps which prevented the commission thereof. it is an affirmative defense that. renunciation of criminal purpose is not voluntary if it is motivated. affect the liability of an accomplice who did not join in such abandonment or prevention. it is an affirmative defense that. under circumstances manifesting a voluntary and complete renunciation of his criminal purpose. or which render more difficult the accomplishment of the criminal purpose. in whole or in part. under circumstances manifesting a complete and voluntary renunciation of his criminal purpose. the defendant avoided the commission of the crime attempted by abandoning his criminal effort and. by circumstances.00 for an attempt to commit a crime..commit the crime or otherwise prevented its commission. 3. A renunciation is not "voluntary and complete" within the meaning of this section if it is motivated in whole or in part by (a) a belief that circumstances exist which increase the probability of detection or apprehension of the defendant or another participant in the criminal enterprise. that increase the probability of detection or apprehension or that make more difficult the accomplishment of the criminal purpose. if mere abandonment was insufficient to accomplish such avoidance. The establishment of such defense does not. not present or apparent at the inception of the actor's course of conduct. Within the meaning of this Article. or (b) a decision to postpone the criminal conduct until another time or to transfer the criminal effort to another victim or another but similar objective. In any prosecution pursuant to section 110. however. the defendant withdrew from participation in such offense prior to the commission thereof and made a substantial effort to prevent the commission thereof. under circumstances manifesting a voluntary and complete renunciation of his criminal purpose. 5.
he uses a nonhuman agent or a non-culpable human agent to commit the crime b. Non-culpable human agent: lacks the mens rea or existence of an excusing condition iii. and procuring the commission of the offense ii. accomplice liability depends wholly on principal’s liability. there must have been a crime committed by another person from whom the accomplice’s liability originates 2. OVERVIEW: ACCOMPLICE AND CONSPIRATORIAL LIABILITY a. Parties: 1. typically accomplice guilty of same crimes as principal b. Innocent-Instrumentality Rule: A person is the principal in the first degree. Accomplice or Accessory liability: A person may be held accountable for the conduct of another person if he assists the other in committing an offense ii. the mere existence of the conspiracy is sufficient to justify liability for the other’s conduct. 1. Physically commits the acts that constitute the offense. or 2. primary party (P): the person who personally commits the physical acts that constitute an offense 2. S derives his liability from P with whom he has associated himself. if with the mens rea required for the commission of the offense. Vicarious Liability: controversy (parents and children by virtue of relationship) c. Principal in the Second Degree: one who is guilty of an offense by reason of having intentionally assisted in the commission thereof in the presence. Commits the offense by use of an innocent instrumentality or innocent human agent a. assistance in commission of the crime is not required iii. ACCOMPLICE LIABILITY: A. Assists: general term to encompass many forms of conduct.” ii. Conspiratorial Liability: A person may be held accountable for the conduct of a co-conspirator who commits a crime in furtherance of their agreement. Principal in the First Degree: is the person who. rests on assistance given to principal ii. but who is associated with him in commission of an offense is a “secondary party. including aiding. i. either actual or constructive. DERIVATIVE LIABILITY: i. Three bases of complicity: i. soliciting. encouraging. advising. PARTIES TO A FELONY: COMMON LAW i. with the mens rea required for the commission of the offense: 1. must be a principal. of the principal in the first degree 62 .ACCOMPLICE LIABILITY 1. Derivative liability: as a secondary party. secondary party (S): any person who is not the primary party. P’s acts become S’s acts 1. Definition of accomplice: S is an accomplice if he intentionally assists P to engage in the conduct that constitutes the crime. abetting. Multiparty criminal conduct: circumstances under which a person who does not personally commit a proscribed harm may be held accountable for the conduct of another person with whom he has associated himself b.
mere presence + an undisclosed intention to render aid is NOT enough 2. Often the person who solicits. MR: intent to aid not enough .iv. must also prove actus reus element actual assistance a. theories of encouragement/moral support 1. payment for ticket and presence at concert where “illegal” saxophonist plays 2. Ct focused on Δ’s clapping at concert: speaks more to state of mind b. principal in the first degree: perpetrators 2. suffices iii. intentionally assists the felon to avoid arrest. Assistance by physical conduct 2. Nearly all states by leg have abrogated the common law distinctions between principals and accessories before the fact 1. bank robbery not complete until the principal in the first degree takes possession of another’s property and carries it away to a place of temporary safety. ABROGATION OF COMMON LAW DISTINCTIONS AND PROCEDURAL BARS i. Principals and accessories/Modern language: 1. E. accessory after the fact is no longer treated as a party to the crime committed by the P in the 1º 1. Wholly ineffectual assistance ≠ accomplice (except in MPC) 63 . principal in the second degree: abettors (actually or constructively present and aids principal in committing crime). When mere presence is interpreted as “more”. before the fact (inciters). before the fact accessories can be tries without regard to P’s prosecution ii. Mere presence and knowledge (mental approval) ≠ assistance 1. trial or conviction 1.g. helps in preparation 3. mere presence + flightNOT enough 3. Types of Assistance 1. Accessory Before the Fact: not actually or constructively present when the crime is committed. ACTUS-REUS: ASSISTANCE: i. Assistance by omission (assuming the omitter has a duty to act) ii. mere presence + undisclosed approval of principal’s conductNOT enough (tacit approval NOT enough) 4. Principals: a. Accomplice a. facilitate b. Offense continues until all the acts constituting the crime have ceased a. Accessories: a. Assistance by psychological influence 3. after the fact (criminal protectors) d. or commands (short of coercing) the principal in the first degree to commit the offense v. 1. BUT once it is determined that S assistedany aid no matter how trivial. purpose to aid. counsels. Accessory after the Fact: is one who with knowledge of another’s guilt. C. But still held Δ assisted (based on moral support/encouragement view of presence and assistance) iv. is subject to prosecution for a lesser offense: “hindering apprehension of prosecution” iii.
Exercises: pg 883 ii. Distinct form dual mens rea of attempt crimes (second prongmust be intent to commit underlying crime). reasonably foreseeable consequences of that specific crime? H. and a. but for any other offense that was a natural and probable consequence of that offense ii. although not contemplated or desired by S. ATTENDANT CIRCUMSTANCES i. If yes. Courts rarely consider whether the intent requirement applies as well to attendant circumstances ii. ACCOMPLICE: MENS REA i. undercover cop retained money from Δ in order to “secure and sell drugs” and give Δ the profit + client list 64 . the intent to assist the P to engage in the CONDUCT that forms the basis of the offense.e. Should be deemed an accomplice if his culpability as to the attendant circumstances would be sufficient to convict him as a principal NATURAL AND PROBABLE CONSEQUENCES i. If result crimethe mental state required for commission of the offense/result element . regardless of whether or not principal is convicted 1. there must have been a crime committed by another person from whom the accomplice’s liability originates. Ask first: is there a principal 1. i.g. should not have to show higher mental state for accomplice committing reckless offense G. E. S opens window for P-burglar to enter. whereas accomplice liability 4. Proposed rule: the mens rea policies regarding the substantive offense should control the accomplice’s situation 1. CAUSATION i. If yes. P doesn’t realize and enters through door instead E. If yes. did P commit any other crimes? 4. Common law + most jurisdictions: a person encouraging a crime may be held criminally liable not only for that crime. Application: Four Questions 1. i. S is accountable for the conduct of P even if his assistance was causally unnecessary to the commission of the offense f. NY and MPC Dual Mens Rea: the accomplice must possess two states of minds: 1. were the crimes. if both charged with same crime. DERIVATIVE LIABILITY OF S IN RELATION TO P i. Most courts: intent=purpose/conscious objective was to assist or facilitate commission of crime 2. Application: Riley a. Did P commit the target crime? 2. may be inferred upon proof of the first 3. was S an accomplice? 3. did S purposefully assist in the commission of the crime. as provided in the definition of the substantive crime a.1.
PUNISHMENT: i.a. Accomplices subject to same punishment as principal 65 . S must communicate withdrawal to P and make bona fide efforts to neutralize the effect of his prior assistance iii. may still be held liable for 2. United States v Lopez. Liability when P is acquitted: 1. exception: homicide cases iii. but varying degrees of homicide based on different levels of mens rea j. ii. social harm the same. justification defenses: no crime occurred or even that positive good resulted no crime to impute to S a. LIMITS/DEFENSES TO ACCOMPLICE LIABILITY i. dual mens rea required for attempt missing (principal did not possess the intent to come into possession of the cocaine).g. guilt of accomplice determined by his own mens rea a. and could not be convicted of a more serious offense or degree of offense than that of which the P was convicted 1. Excuse: does not excuse accomplice K. how to categorize i. BUT principal-cop did not commit the crime of attempt. so if principal claims partial self defense that mitigates murder to manslaughter. accomplice who does not claim self defense. excuse defenses: excuses always personal to the actor. especially so in homicide cases a. Legislative-exemption ii. Justification: no crime committedno accomplice liability iv. e. Abandonment 1. helicopter prison escape case. Common law: accessory could not be convicted of crime in which he assisted until P was convicted. lack of mens rea: no crime made out no crime to impute to S iv. S has no right to assist a wrongful act 3. whether S may be convicted of a more serious offense or degree of offense than the P 1. necessity or duress 2.
(2) A person is legally accountable for the conduct of another person when: (a) [acting with the kind of culpability that is sufficient for the commission of the offense]. If such conduct constitut separate offense upon the part of the actor. when. or (ii) gives timely warning to the law enforcement authorities or otherwise makes proper effort to prevent the commission of the offense. (7) An accomplice may be convicted on proof of the commission of the offense and of his complicity therein. [he causes an innocent or irresponsible person to engage in such conduct]. or both. or (ii) aids or agrees or attempts to aid such other person in planning or committing it. (less broad than MPC-closer to the commo § 20. importunes.00 Criminal liability for conduct of another When one person engages in conduct which constitutes an offense. (inevitably incident defense) § 20.ACCESSORIES MPC § 2. can be committed on particular class or classes of persons. with respect to that result that is sufficient for the commission of the offense. a person is not an accomplice in an offense committed by another person if: (a) he is a victim of that offense (e. each person is guilty of such degree as is com his own culpable mental state and with his own accountabi aggravating fact or circumstance. that is necessarily incidental thereto.g.10 Criminal liability for conduct of another. (4) When causing a particular result is an element of an offense. requests. o 3. acting with the ment required for the commission thereof. Such other person is not guilty of the offense in question owin irresponsibility or other legal incapacity or exemption. though the person claimed to have committed the offense has not been prosecuted or convicted or has been convicted of a different offense or degree of offense or has an immunity to prosecution or conviction or has been acquitted. (e. or ABANDONMENT DEFENSE: Except as otherwise expressly provided in this chapter. though causing or aiding the commission of such offense.05 Criminal liability for conduct of another. 2. must have failed to act with purpose of promoting or facilitating he commission of the offense). (no defense ba excuse or P’s lack of MR) or 2. To determine whether a person is an accomplice in the commission of the offense: 1. fails to make proper effort so to do (omitter must possess the MR required of an accompliceomission. The offense in question. two or more persons are criminally liable for an offense w into degrees. or to of the criminal nature of the conduct in question or of the d criminal purpose or to other factors precluding the mental for the commission of the offense in question. commands. NY: PARTIES TO OFFENSES AND ACCESSORIAL CONDUCT 1) A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable. or has previously be thereof. unless such liability is inconsistent with the purpose of the provision establishing his incapacity.06: LIABILITY FOR CONDUCT OF ANOTHER . (rejects legally incapable defense) § 20.00. he: solicits. if any. (Liability for crimes reckless and negligence.g.15: Convictions for different degrees of offense (6) Unless otherwise provided by the Code or by the law defining the offense. he (i) solicits such other person to commit it. is for that reason legally incapable of co offense in an individual capacity. ask whether S was an accomplice in the conduct that caused the result. an accomplice in the conduct causing such result is an accomplice in the commission of that offense if he acts with the kind of culpability. purs 20.00 and 20. is criminally liable for such conduct when. (see #3 below) (3) A person is an accomplice of another person in the commission of an offense if: (a) with the PURPOSE (knowledge NOT enough-must be S’s conscious object) of promoting or facilitating the commission of the offense. or (c) he is an accomplice of such other person in the commission of the offense.0 IT IS NO DEFENSE THAT: 1. (S can be convicted of a higher degree of the offense than P) (c) he terminates his complicity prior to the commission of the offense and (i) wholly deprives it of effectiveness in the commission of the offense. as defined. ask whether S acted with the culpability in regard to the result that is sufficient for the commission of the offense) (5) A person who is legally incapable of committing a particular offense himself may be guilty thereof if it is committed by the conduct of another person for which he is legally accountable. or intentionally aids s engage in such conduct. or (b) the offense is so defined that his conduct is inevitably incident to its commission. COMPLICITY . 3. parent paying ransom to kidnappers).05. a pers criminally liable for conduct of another person constituting an offen conduct. If different harm changes by degree this statute may not apply. BUT FOR CAUSATION or (b) he is made accountable for the conduct of such other person by the Code or by the law defining the offense. c someone for a harm didn’t occur 66 . no defense In any prosecution for an offense in which the criminal liability of th based upon the conduct of another person pursuant to section 20. n to such class or classes. he is liable for that offe not for the conduct or offense committed by the other person. exemption Notwithstanding the provisions of sections 20. husband can be an accomplice to his wife’s rape) DEFENSES: § 20. (need NOT be effective aid) or (iii) having a legal duty to prevent the commission of the offense. or has legal immunity from prosecution therefor. Such other person has not been prosecuted for or convic offense based upon the conduct in question. determine P’s potential responsibility. or (b) his conduct is expressly declared by law to establish his complicity. and the defendant.
06: LIABILITY FOR CONDUCT OF ANOTHER . (State v. Rejects conspiratorial liability (Pinkerton). No natural and probable consequences rule: liability of S does no beyond the purpose he shares with P? 3. is guilty of an attempt…although the crime is not committed or attempted by such other person” 4. such as mere knowledge that one is aiding a crime or knowledge that one is aiding reckless or negligent conduct which may produce a criminal result. confines liability to reasonable scope 3. DISTINCTIONS NY: PARTIES TO OFFENSES AND ACCESSORIAL CONDUCT 1. Hoselton) 67 . deliberate ambiguity re: MR and attendant circumstances? 4. doesn’t recognize planning the offense (before the fact) 1. There is a split of authority as to whether some lesser mental state will suffice for accomplice liability.01(3) S may not: a person who engages in conduct designed to aid in the commission of an offense that would establish complicity under § 2. deliberate ambiguity re: MR and attendant circumstances Common Law: 1. No natural and probable consequences rule: liability of S does not extend beyond the purpose he shares with P 2. under § 5. COMPLICITY . a person is not accountable for the conduct of another solely because he conspired with that person to commit an offense.ACCESSORIES MPC § 2. No distinction for attempting to aidmust the aiding be effective One is liable as an accomplice to the crime of another if he (a) gave assistance (in fact) or encouragement or failed to perform a legal duty to prevent it (b) with the intent thereby to promote or facilitate commission of the crime.06 if the crime were committed by such other person. doesn’t recognize attempt to help (assistance must be effective) 2. Even though a P may get off for an attempt crime because didn’t take a substantial step.