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Four elements of a crime that the state must prove: 1) Actus Reus (AR) (the voluntary act/omission that causes the prohibited result. Cannot be a reflex, convulsion, hypnotic state, or unconscious act) **Every crime has an actus reus 2) Mens Rea (MR) (the culpable mental state. The intent. “guilty mind”) a. How do you prove it? “Actions speak louder than words.” You can infer state of mind through conduct. Generally proved circumstantially. b. MPC: purpose, knowledge, recklessness, negligence c. CL: intent (purpose/knowledge), recklessness, negligence 3) Attendant Circumstance (AC) Other elements the state must be prove to establish the prohibited result…Example: Human being, under age 18, dwelling house) 4) Causation State has to prove the act produced the result. The link between actus and reus 5) Concurrence In order to be guilty of the crime, the guilty mind must concur with the wrongful action Circumstantial evidence v. Direct evidence-Which one is better? Either one. The jury’s job is to determine the facts, weigh the evidence, and assess credibility. Example: Someone comes in the classroom and yells, “There is snow outside!” but it is hot and by the time you go outside, the snow has probably melted. The quote is direct evidence. Circumstantial evidence is the pictures that you get from the traffic light cameras showing no snow at 10, 10:02, 10:05, and 10:10. prima facie burden: government’s requirement to produce evidence on every element in its case in chief (prima facie means “at first view”, “on the first appearance”)
I. The principle of legality 1
a. Due Process aspect i. Provides people with protection from arbitrary enforcement of the law 1. Notice issue: People need to know about the law. They don’t have to have actual knowledge, but they need to have the opportunity to know a. Statutes have to give notice about the crime being committed ii. You can’t have crime without an existing law. Principal of Legality condemns judicial creation of law iii. Malum in Se (evil within itself) 1. Example: Murder and rape—the nature of the crime itself shows its evil iv. Malum Prohibitum (crime because legislature says it’s a crime) 1. Example: Speeding, not filing tax returns II. Principles of Statutory Interpretation a. Plain meaning of the statute i. Legislature creates laws that define certain acts as crimes. ii. Judges interpret the laws and define to the factfinder what the law is. b. Challenge of determining “legislative intent” i. Terms in the law may come from common law 1. Judges presume that the legislature used common meaning of the term when they enacted the statute. ii. Court will always presume the legislature didn’t intend to violate the Constitution c. Legislative history i. Judges must use stare decisis for interpreting the statute based on court’s determination of a word, element, etc. of the statute d. Lenity Doctrine i. When the statute is ambiguous (could go either way), courts always rule in favor of ∆ III. Roles of the court and jury (finder of fact) in the Beyond a Reasonable Doubt (BRD) equation a. Judge interprets the law, defines it, and instructs the finder of fact b. Jury is the finder of fact (unless it’s a judge) and they apply laws based on facts of case i. Each material element must be supported by evidence that establishes proof BRD 1. BRD is reached when every fair and rational hypothesis of innocence has been eliminated such that the only reasonable conclusion is guilt 2. Prosecution has to prove that guilt is reasonable and that innocence is unreasonable ii. Inferences can help a jury decide if it is reasonable to conclude the state proved every element 1. Inferences are conclusions drawn from evidence and are permissive 2. A presumption is a mandatory starting conclusion of not guilty that may be rebutted with evidence c. *Jury will only get to decide the case when there is a reasonable possibility that the ∆ can be found guilty i. Jury cannot convict arbitrarily ii. Judge cannot let jury have the case if he believes there is another rational hypothesis d. Jury Nullification i. Jury has the power to return a not guilty verdict even though the gov’t has proved every material element BRD. 5th amendment prevents retrying ∆. When juries 2
nullify, it violates their oath to apply the instructions given by the judge and usurps the power of the legislature to make laws and courts to enforce them ii. It is a power, not a right, of the jury. Role of evidence a. Direct evidence i. Directly from the ∆’s mouth ii. Eyewitness testimony b. Circumstantial evidence i. Weapon found in ∆’s house ii. Hair/fiber found at the scene. iii. All other evidence surrounding the crime c. One is not better than the other. It depends on the case and the evidence d. Jury may infer from the evidence to determine a conclusion
I. Definition a. Actus Reus is the voluntary act or omission that produces the social harm that is the prohibited result defined by a statute. b. Actus = act, reus = prohibited result i. Social harm is the negation, endangering, or destruction of another which is deemed socially valuable 1. Example: Loss of life not only affects the victim’s family but society as a whole has lost their sense of security c. You are only responsible for voluntary, conscious acts i. Sleepwalking, hypnotic state, reflexes, convulsions, and unconscious acts are not voluntary ii. Policy: Punishing you is not a deterrent because you never meant to do the act. Mental component required a. An act without volition, knowledge, or duty is not an act at all b. For physical actsvolition (free will - this is not the same element as intent. Be careful.) c. For possession actsknowledge i. You must have knowledge of the possession of an illegal object d. For omissionduty i. You have no general duty to act, but you must act when there is a legal duty ii. An obligation to act is created by: 1. Status of relationship (parent-child) 2. Statutory duty (to pay taxes) 3. Contractual duty (babysitter) 4. Isolation/assumption of care (duty after starting to rescue) 5. Duty by creation of the risk (auto accident)
Definition a. The statutorily defined mental link between the act and the prohibited result Example: Cunningham didn’t have the mental intent to commit battery. so the act wasn’t enough to constitute a charge for battery (or attempt murder) Common Law concept of “malice” a. Requires the culpable state of mind that makes the Actus Reus criminal 3. Motive can prove intent ii. III. Redefined to mean: i. Elemental 1. It is a “sine qua non” of crime: an essential condition. The requisite state of mind the government must prove to convict ∆ of a crime b. it’s not murder because the prohibited result (reus) was not related to your mens rea.MENS REA I. Proving Mens Rea: a. and on your way to the store to buy a gun you accidentally run over Jimmy and kill him. Practical certitude or substantial certainty that the prohibited result will occur Relationship between Mens Rea and prohibited result a. Originally meant “wicked” b. Not used anymore because now we require the elemental theory Example: Cunningham had intent to steal but didn’t intend to injure the mom (gas meter thief). wanton disregard—foreseeable harm may occur but you take the risk anyway) Common Law concept of “intent” a. c. the culpable mental state c. Mens Rea must concur with the prohibited result b. 2. It justifies punishment because it links the act with the criminal intent b. Recklessness (implied malice. Knowledge i. Intent is the purpose to produce a result (the decision) 1. IV. Elemental Meaning i. VI. Intent (expressed malice. May be a conscious objective—to accomplish that result or engage in that 5 II. Motive is not intent. Purpose i. Culpability v. It is the mental link between the legal act and the social harm i. Conscious objective to bring about a certain result b. . defined by purpose or knowledge) ii. Proof of intent i. a thing absolutely necessary Why it is a fundamental principle of criminal law a. The idea that any morally blameworthy state of mind that brings about any prohibited result is criminal. V. The modern approach 2. Culpability 1. The guilty mind. What is the good to society if a person is punished for a crime they were not consciously committing? There is no punishment without a guilty mind. Example: If you decide to kill Jimmy. ii. motive is motivation (why you do something) 1.
d. General 1. Conscious objective (purpose) to bring about the prohibited result 2. Any offense that adds “with intent to” adds a specific intent 3. Intent transfers if you produce the intended prohibited result. MPC culpable mental states i. ii. therefore intent) ii. just simply elements. Purpose 1. Knowledge is imputed if: a. Specific Intent (only at CL) i. May be a conscious awareness—a person acts knowingly when he is aware the result of such conduct is practically certain to be caused by his conduct b.conduct 2. Negligence 1. not a specific person. At MPC there are no general/specific intent elements. c. Law protects harm to a person. a. A mistake must be HONEST to erase specific intent. MR is intent to touch. Objective analysis of fault based on a reasonably prudent person (RPP) iii. ∆ doesn’t realize the risk be a reasonable person would a. Intent (prove by purpose or knowledge) 1. Knowledge 1. Recklessness 1. Knowledge that prohibited result is substantially certain to occur. Suspects that it exists and purposefully avoids learning if it exists (willful blindness—deliberately avoiding learning the truth—shows recklessness regarding truth so it’s considered knowledge. liability still exists if harm caused was different than harm intended ii. ∆ is actually aware of the fact b. Specific 1. A mistake that erases an element of mens rea can be had. Correctly believes that a fact exists c. a gross deviation from societal standard of care e. A conscious disregard that conduct creates a substantial and unjustifiable risk of producing the prohibited result 2. iii. Knowledge that prohibited result is substantially certain to occur 2. ∆ is actually aware of the fact ii. If the initial MR for harm existed. A mistake must be HONEST and REASONABLE to erase general intent. MR that relates back to the act (every crime has a general intent) Example: Battery. Conscious objective of committing the act or producing a certain result ii. Transferred intent i. Suspects that it exists and purposefully avoids learning if it exists (willful blindness—deliberately avoiding learning the truth—shows recklessness regarding truth so its considered knowledge) 6 . Correctly believes that a fact exists iii. Knowledge is imputed if: i. General v. An additional MR beyond the first MR (two MR elements) 2. AR is touching. Common Law culpable mental states i.
CL put “willful blindness” under the definition of intent 1. No MR to prove. Negligence 1. All you have to prove is the act g. MPC puts “willful blindness” under the definition of knowledge 1. Intent at CL means both purpose and knowledge of substantial certainty ii. Knowingly is not just actual knowledge. Judgment aspect to jury whether the ∆ was aware of the risk iv. but also with substantial certainty 2. ignore that risk 2. Strict Liability i. Element of knowledge may be satisfied by the inference from the proof that a ∆ deliberately closed his eyes to what otherwise would have been obvious to him a. Recklessness 1. then he cannot be convicted (jury decides if they believe he honestly believed) 7 . ∆ doesn’t realize the risk but a reasonable person would a. If one actually believed that the fact did not exist. a gross deviation from societal standard of care 2. Awareness of a risk that may cause an outcome. Willful Blindness under MPC and CL—a way of imputing knowledge on the ∆ i. Judgment to jury whether a RPP would be aware of the risk f.iii.
etc. If they choose to omit MR element. MPC is explicit: if there is no MR indicated. the courts shall presume recklessness as a required minimum i. No Strict Liability under MPC i. Removes the element of proof of mental culpability (MR) i. There is still a MR component (all crimes have a MR element) but the state just doesn’t have to prove it f. default back to needing MR i. Courts. All that must be proven is the AR c. regulatory offense with minor punishment (not prison). Legislature normally doesn’t omit MR because proof of culpability is central to the idea of criminality c. they must do so explicitly in the statute itself or implicitly through legislative history or some other mechanism II. Mistake of fact doesn’t matter in SL cases because the MR doesn’t have to be proved.STRICT LIABILITY I. Example: Minor liquor laws. if it is non-regulatory. Makes pathway to conviction easier e. if the penalty is light. bigamy. MR is generally NOT required. d. For legislature to rebut the court’s presumption of MR. 8 . antinarcotics laws. involving a small crime and no imprisonment because there is a compelling public interest and it would be overwhelming to have to prove every person’s intent for running a stop sign. Example: Statutory rape. When a court interprets a statute. Legislature can omit MR explicitly when they draft criminal statutes i. The court is always inclined to interpret MR into a statute e. If not a regulatory offense. Under MPC the statute must explicitly state that there is no MR Five principles of Strict Liability a. in general. therefore SL. several malum prohibitum crimes It doesn’t matter if there wasn’t knowledge of girl’s age or mistaken belief that previous marriage was invalid b. traffic violations. Evidence of why the crime was committed isn’t even admitted or relevant d. really disfavor SL offenses because criminal law is all about punishing those with a guilty mind h. There is no constitutional right to MR b. Basic Principles a. it will normally be for a minor. etc. it will interpret that the legislature intended MR i. g. MR is generally required when punishment of the wrongdoer involves prison time or death penalty (it outweighs the regulation of social order as a purpose of the law in question) ii.
Even if he honestly believed it. It’s harder to prove the ∆ is lying 2. Is the mistake honest or reasonable? 3. therefore. Conditional intent does not defeat intent if the condition is invalid II. Is there anything left after the erased intent? iii. then ∆ is not guilty c. Technically it is not a defense. then negligence. If mistake of fact. c. you simply misunderstand the law.MISTAKE I. Does the mistake point to a general or specific intent element? 2. Rarely a defense i. Honest/good faith mistake negates the specific intent element (subjective test) i. If evidence establishes that the ∆ had intent to do something but it was conditional. Did the ∆ honestly believe it? ii. You must erase EACH culpability requirement to get “not guilty” III. Members of society are on presumptive notice. If you erase that go to knowledge. Jury looks through their own eyes to determine reasonableness 2. Understand the (in)significance of “conditional” intent—What if a carjacker says “Give me your car or else I will kill you” Does this prove intent to kill? a. Ignorance of the law is never a defense to a general intent element no matter how reasonable that mistake may have been. The only time you have a defense of mistake of law is when mistake of law negates the specific mental state—when the law makes knowledge of the law part of the offense 9 . What ∆ thinks is a mistake of the law is usually a misunderstanding of the law ii. then nothing 1. At CL mistake is like an eraser. then the ∆ must have the right to create the condition to use it as a defense i. reasonable mistake because it was dishonest! f. There is no such thing as conditional intent. Honest and reasonable mistake negates the general intent element (subjective/objective test) i. start with purpose. The law treats the condition given as intent b. When you can claim mistake of law: i. If you misinterpret the law yourself. Application at common law to specific intent element 1. It knocks out the MR pillar by erasing the intent d. Treatment of mistake of fact under MPC—the “Eraser” concept i. you have no defense b. Mistake of Fact a. Doesn’t matter how unreasonable the mistake is so long as it was honest e. If there was a valid mistake it erases that particular element of the crime and you are left with what is left ii. MPC says if mistake nullifies any element then you are left with whatever is left b. You cannot intend to do something you don’t believe ii. It isn’t possible to have a dishonest. Mistake of Law a. but it has the effect of a defense because if it happens. then recklessness. would a reasonable person have believed it? 1. Under MPC. ask: 1. The carjacker has conditional intent to kill if the person doesn’t comply with his condition c. It’s always easier to prove the objective view than the subjective view 1.
you can claim detrimental reliance (estoppel) on the appropriate gov’t authority to get a mistake of law defense 10 . Example: Not paying taxes—you have to know you have a legal duty. The “estoppel” concept related to mistake of law a. When you rely on an official source who has authority to interpret that law. but sometimes you can prove you honestly didn’t know 2.a.
the medical examiner will look at time Proximate Cause a. Don’t assume the “but for” cause = proximate cause c. In this case. . Must have cause in fact to have proximate cause. When other cause is foreseeable a. If yes. How to approach the question: i. When the actions of one person set the death in motion and someone else comes along and hastens the time in which the person dies (aggravation is not enough) 2. Is there more than one “but for” cause? ii. Victim is not injured. iii. When two people act independently of one another and their actions standing alone both would have caused the death/prohibited result 2. Intervening superseding cause—the force of act 2 came after act 1 and superseded act 1. it refers to responsibility: Who should be held responsible for the prohibited result or when should a ∆ not be held responsible because someone else is responsible ii. You only look at proximate cause when you have established there is more than one cause in fact b. Three ways to prove cause in fact: i. Essentially. 1. Proximate cause/legal cause is the actual cause of the prohibited result. The second person’s actions alone would not have caused the victim’s death/prohibited result 3. Suicidal act by the victim 11 II. The other driver is an intervening cause. Cause in Fact a.CAUSATION I. it will usually come down to a question of foreseeability. It is the last act before the result occurs i. another driver crashes into the dark car and kills him. but you may have cause in fact without proximate cause (when you have an intervening superseding cause) c. but it is foreseeable (not superseding) that this would happen. Looking for a break in the causal chain 1. Example: Drunk driver hits another car and it lands in the middle of the road at night. Acceleration 1. but before he can exit the vehicle. The death of the victim or prohibited result would not have happened “but for” the ∆’s conduct ii. Stated differently. there are two “but for” causes that would have caused the prohibited result when it occurred iii. severing act 1’s causal link to the result a. But for (direct cause) 1. The act is what caused the result b. A foreseeable intervening cause should never relieve the ∆ of liability b. An act of God b. Substantial factor 1.
She runs to her parents and dies because she slept on their doorstep and froze instead of going into their house. the more likely the ∆ will be guilty iii. What breaks the causal chain? IT’S ALL ABOUT FORESEEABILITY! If it was unforeseeable.. When the voluntary act of the victim is the intervening act b. If the chain cannot be broken. Unforeseeable coincidences b.e. Abnormal response. Wrongdoing by an independent third party 2. It is the fundamental role of the jury to determine whether the causal chain is broken and which actor is the proximate cause. Husband’s beating not the proximate cause. The act must concur with the legal state of mind (MR) 12 . the less likely the jury will be to forgive an unforeseeable act (i. Concurrence a. Voluntary human intervention will break the causal chain a. Example: Woman’s husband beats her. you tried to kill him but he got hit by a car after you shot him which ultimately killed him) III. The “policy” nature of determining proximate cause i. then actor 1 is the proximate cause ii. The more deliberate the initial act. d. The more foreseeable the result.c. Jury decides whether they believe the facts show the chain of proximate cause has been broken. Abnormal and unforeseeable responses 3. then it breaks the chain a.
but D was reckless and had a base antisocial motive for having the dog. but even if he is reckless in choosing to ignore that risk and performing the surgery.” and “death” definitions depend on the law of the state—can have different definitions of human being in different crimes b. Base antisocial motive is a risk created by another criminal activity (like using a guard dog to protect his illegal activity of growing marijuana and the dog kills a child. Knowledge of substantial certainty that death would be the outcome ii. Purpose—the conscious objective 2. Express Malice Murder (intentional—death is desired outcome) Express malice murder is an intentional killing of another human being with malice aforethought Prove express malice by: i. i. Requires proof of MR for the underlying felony iii. The gin is “recklessness”.HOMICIDE I. Unintended killing. Example: A doctor may perform a surgery with a substantial risk. High degree of reckless conduct **degree of recklessness is a fact for the jury a. There is an inverse relationship between the two—the more of one.) ii. Usually 2nd degree murder ii. the less you need of the other b. Original CL concept of “grading” murder a. OR Recklessness + base antisocial motive a. Original “unrestrained” doctrine 13 . Definition (one “bucket” for death at original CL) Murder is the unlawful killing of another human being with “malice aforethought” 1. Prove implied malice/wanton disregard by 1. Seriously bodily harm that gives rise to the apprehension of death c. “human being. the olive is a “base antisocial motive”. The idea is that we should impute the intent to kill even if intent isn’t there because the ∆ acted so ridiculously d. Intent to kill 1. he had the altruistic motive of saving the patient’s life iii. Felony Murder (unintentional killing) One is guilty of felony murder if a death results from conduct during the commission or attempted commission of a felony i. Implied Malice Murder (unintentional—death is not the desired outcome) Implied malice murder (aka “depraved heart” murder) is an unintentional killing bumped from manslaughter back up to murder by proving a wanton disregard for the value of human life – “implied malice cocktail”.” “life. Intent to cause grievous bodily harm 1. Example: “shaken baby” 2. IF you can show the ∆ acted recklessly with an altruistic motive or a social utility motive (that he did it for a good reason) then the “cocktails” are harder to prove a.
Courts have tried to reinstate symmetry by making only inherently dangerous to human life felonies capable of being used in felony murder vi. Courts don’t like malum prohibitum felonies being used for felony murder. Legislature defined predicate felonies. or immediate flight of the felony b. all felonies were punishable by death. IF you have a statutorily defined predicate felony. so if death occurs during the commission or attempted commission of a defined predicate felony. It limits the list of felonies allowed to be claimed under felony murder by getting rid of all felonies that are not inherently dangerous to human life 1. so it didn’t matter 3. This rule applies when a felony is an undefined felony or not predicate felony. a. If the felony is not on the defined predicate felony list. prosecution must first prove the felony was inherently dangerous. Res gestae doctrine a. then charge him with felony murder 3. At original CL. Limits the scope of felony murder v. 14 . A solution to the original unrestrained doctrine that defines malum in se felonies as “predicate felonies” and changed the felony murder rule to be: Predicate felony + death = felony murder 2. Problem with unrestrained felony murder doctrine a. Limiting doctrines to felony murder 1. Under CL. There was no MR (malice) element that needed to be proved as long as you could prove the ∆ was committing a felony. Courts stick to the idea that crimes should be defined by culpability. “Restrained” doctrine 1. they ran into a problem because some felonies were inherently evil and others were only malum prohibitum crimes.Felony (act) + Death (result) = Felony Murder 1. it isn’t automatically felony murder 4. you BYPASS the inherently dangerous doctrine b. Understand the lack of “symmetry” that causes contemporary discomfort with this doctrine 1. that ∆ had the requisite culpability to commit that crime (even if that MR had nothing to do with intent to kill) 2. Inherently dangerous felony rule a. iv. Res gestae must be interrupted by a point in which the ∆s have achieved a position of relative safety from law enforcement for the underlying felony to be considered “terminated” c. Applies to both restrained and unrestrained felony murder jurisdictions 2. If you do not have a defined felony or predicate felony. Once “malum prohibitum” felony offenses (defined by legislature) were added. Have to prove the killing concurred with the felony—that the death occurred during the attempt. people accused of felony murder were more like depraved heart (implied malice) murderers because the felonies all had a high risk of hurting people (manifesting a wanton disregard for human life rather than malice) 2. commission.
therefore. iii. then the killing is also attributed to the ∆ ii. NOT felony murder. If no. Contextual (minority view) i.c. Look at the context of the actual violation and consider the manner in which it was violated iii. If yes. Better for the gov’t b. PRO ∆ ii. then the crime isn’t inherently dangerous to human life a. Example: Same as above. Man was fleeing from police. Minority view: Proximate cause (wider funnel)—anyone can cause the death so long as it is foreseeable a. Look at the law itself and ask the following: Is it possible to imagine a way the ∆ could violate the statute without causing inherent danger? 1. but since the felony he committed can be committed without being dangerous to human life. it must be inherently dangerous iv. Majority view: Agency theory (narrow funnel) a. A felon may be held responsible under the felony murder doctrine for a killing committed by a non-felon if the felon set in motion the 15 . ANTI ∆ ii. 2. Example: Man violated three traffic laws. Ask: Was that person who killed acting as an agent (cofelon) of the ∆? i. Do not look at how the felony was committed in that circumstance. How do you know if the crime was inherently dangerous?: You just look at the context--∆ broke the law and someone died. no felony murder. Abstract (majority because courts don’t like the idea of felony murder) i. In an unrestrained jurisdiction. because you could violate three traffic laws WITHOUT being dangerous. During the transaction of a felony someone gets killed by someone other than the ∆ 1. then the killing isn’t attributed to the ∆ 4. If yes. you almost always can prove felony murder through this doctrine 3. Better for the ∆--your co-felon/accomplice must cause the death b. He was being dangerous. During the transaction of the felony someone gets killed by a person other than the ∆ c. Two methods to determine whether a felony is inherently dangerous: 1. a. If he hits someone and kills them. which is a felony.
Right felony a. Clerk shoots at ∆ in defense (foreseeable) but accidentally kills a store patron. then ALL co-felons are responsible 4. if you have a felony and there was a death the jury MUST convict 1. As long as the killing was a foreseeable consequence of the crime. If you cannot prove felony murder. Res gestae doctrine 3. Example: ∆ robs a convenience store. Purpose—conscious objective 2. Right timing a. Evolution of CL murder…various jurisdictions’ approaches to defining degrees of murder **Not all jurisdictions have degrees of murder a. A felony is not inherently dangerous if it could be committed without danger to human life 2. Felony is inherently dangerous 1. Exception: underlying felony’s actus reus isn’t serious bodily harm 2. then ∆ is not guilty 3. Statutorily defined felonies (BARRK) usually 1st degree 16 . does that mean you cannot charge ∆ with murder? 1. Proof of intent to cause grievous bodily harm makes it difficult to prove P&D 4. NO! You can charge ∆ with depraved heart (implied malice because of high degree of recklessness) x. Felony is expressly named by statute (predicate felony) b. II. then ∆ is guilty ii. Analysis: Three things to get a charge of felony murder: 1. First degree murders or “worse murders” Intent to kill + premeditation + deliberation i. you can still get the lesser included offense of the felony. Proximate cause (wide – non-felon or acts of God cause death during felony) viii. ∆ is guilty of felony murder. Intent to kill must be proved first 1.acts which resulted in the victim’s death 1. Under the minority view. After all this. Ask: Was the killing a foreseeable consequence of the crime? i. When a felony is not on the predicate felony list and is not inherently dangerous. Agency doctrine (narrow – co-felon causes death during felony) b. If no. Right connection a. To defeat this theory: The killing must have been a result of an intervening superseding cause i. Example: the cop who was chasing you gets hit by lightning (unforeseeable coincidence) vii. If yes. 2. Knowledge of substantial certainty 3. Evidence of circumstances is not allowed ix.
Premeditation 1. **First degree murders also include anything else the legislature has set out as first degree murder (examples: killing of a child. racially motivated murders. ∆ never has to put on any evidence at all. hear it happen. So. Second degree murders “not as bad murders” i. P&D can be inferred by conduct/statements of ∆ prior to killing.e. or it isn’t proximate. It must be proximate.ii. 5. done in a sudden heat of passion. Quantity of thought--∆ was able to think about it beforehand 2. A “residual bucket” for crimes where there was a “heat of passion” and all other unlawful killings b. a father who finds out 5 years later who raped and killed his daughter does not have a defense in the CL court because it isn’t proximate 4. Mutual Combat iii. If you don’t see it happen.. Voluntary Manslaughter (intentional—death is desired outcome) An intentional homicide. CL Manslaughter a. A spontaneous reaction defies the notion of quantity and quality of thought and negates the “twinkling of an eye” theory iii. State has burden to prove malice and to disprove heat of passion. ill-will between parties. before there has been a reasonable opportunity for the passion to cool 1. What is it? i. etc. Assault and battery 17 . a law school professor. you cannot claim heat of passion & jury won’t even hear the evidence a. Adequate provocation (words are never enough—courts were very strict that these five were the only kinds of adequate provocation) i. Justification to the murder: It doesn’t make an excuse. To be an excuse. Start with presumptive murder—all elements are satisfied to prove murder (intent to kill) but the circumstances partially nullify the MR 2. you have to eliminate the causal connection (i. caused by adequate provocation. etc. a police officer. Adultery (in flagrante delicto) ii. regardless of P&D) **P&D makes it a specific intent crime—if you cannot prove the specific intent of P&D you are left with the general intent crime of second degree murder b. Intent to kill—a general intent crime that doesn’t involve P&D ii. when someone gets in the way when you are trying to kill someone else you are justified in killing) 3. Elements needed to downgrade from murder to manslaughter: a. it justifies why it isn’t as bad b. Death occurs as a result of “heat of passion” a. Deliberation 1. Two types of manslaughter i. Inherently dangerous felony murder usually second-degree III. Quality of thought--∆ was able to rationalize and decide on the thought iv. threats by ∆ before/during the act of killing.
based on his experiences.iv. Illegal arrest (false arrest) b. HOT and sudden passion (jury decides) i. Objective: reaction is assessed based on the ordinary person standard. Capital murder “really bad” 18 . Objective/Subjective reasonability i. If the ∆ was subjectively reasonable but objectively unreasonable. Role of judge: Judge decides whether there is enough evidence of a causal connection between provocation. Acceptable provocations have since expanded but words are still never enough 7. but was there enough provocation to make an ordinary person with ordinary control respond the way the ∆ responded? c. MPC concept of murder a. the passion. vulnerability. Rule of jury: Jury decides whether the reaction was of “hot and sudden passion” to downgrade murder to manslaughter ii. In some jurisdictions. Subjective: provocation is assessed based on the ∆’s susceptibility. and the fatality 9. the ∆ will be found guilty of murder 8. MPC does not divide murder into degrees b. Death results from gross/criminal negligence a. Many jurisdictions now use the “ordinary man” standard instead of a reasonable man standard because a killing is never reasonable b. Injury to relative v. Jury will decide which category to put the ∆ in by looking at the aggravating circumstances (offered by prosecution) and mitigating circumstances (offered by defense) when determining the sentencing: 1. Intentional killing 6. When the deviation from the standard of care is more than simple negligence IV. Killing is done with purpose ii. MPC still breaks the type of murder into two diff groups. How adequate provocation evolved a. would that conduct be provocative? ii. and reasonability. Ask: Maybe it was subjectively provocative. Death results from recklessness (of any degree) a. Killing is done with knowledge of substantial certainty iii. No cooling off period c. ∆ knows of a risk and disregards it 2. Link between the provoker and the death d. Causal connection (judge decides) i. Ask: In his shoes. Involuntary Manslaughter (unintentional—death is not the desired outcome) An unintentional killing resulting from reckless conduct that does not manifest a wanton disregard for the value of human life or that results from gross negligence 1. Murder (where death is the desired outcome) Murder is an unlawful killing where death is the purpose/desired result i.
If ∆ claims EED. done as a result of an extreme emotional disturbance ii. state must prove felony and killing and they get felony murder. Look at the subjective frailty of the ∆ 3. the ∆ gets a presumption of murder. he can please EED in an MPC jurisdiction v. There is no such thing as felony murder in MPC. Words. Reasonable explanation and excuse for the disturbance (objective standard) a. Death sentence on the table 2. A conscious disregard of a known risk ii. Murder without aggravating circumstances b. Murder with aggravating circumstances (listed in the code) b. There is NO causal connection requirement 1. ∆ bears the burden of proof here. In MPC. or anything can create the extreme emotional disturbance iv. They jury MAY convict ∆ of murder but prosecutor still has to prove the reckless behavior 2. extreme emotional disturbance excuses purpose. BUT in MPC. “Extreme Indifference” murder (where death is not the desired outcome) Extreme indifference murder (aka “depraved heart” murder) is an unintentional killing that bumps from manslaughter back up to murder by proving an extreme indifference to the value of human life i. Preserves the objective barrier vi. If you get the right felony and killing. So. In MPC. felony murder is captured under extreme indifference as a reckless murder (presumed if death was committed within a named felony) a. Example: When the dad finds out 5 years later who raped and killed his daughter and goes out and murders him. To prove extreme indifference to imply purpose or knowledge there must be: 1. Must be a defined felony to get this presumption of extreme indifference murder b. if a felony was committed and a murder resulted. evidence of the circumstances is allowed to prove/disprove V.a. High degree of recklessness which manifests an extreme indifference to human life a. Jury decides who gets the defense by looking to see if the excuse is reasonable by looking at the circumstance through the eyes of the ∆ 19 . Manslaughter at MPC a. so you presume murder. 1. Voluntary Manslaughter “Extreme emotional disturbance” An intentional homicide. it doesn’t have to be proximate 2. partially nullifying the requisite MR because it drops the charge from murder to manslaughter iii. Murder “not as bad” a. The emotional disturbance was extreme (subjective standard) a. In CL. Must prove: 1. Conduct is intentional. actions. Death sentence isn’t an option for sentencing c. A killing resulting from the commission of certain defined felonies presumptively (but not conclusively) falls into this category iii. ∆ acted under pressure of emotional disturbance 2.
The risk is of such a nature and degree that the actor’s failure to perceive it. Involuntary Manslaughter Involuntary manslaughter in a MPC jurisdiction is a killing resulting from reckless conduct that does not manifest an extreme indifference to the value of human life 1. considering the nature and purpose of his conduct and the circumstances known to him. Then prove that most everyone would have realized it (gross negligence) 20 .d. First prove a reasonable person would have realized (regular negligence) 3. Death results from reckless conduct of any degree VI. is a gross deviation from the standard of care that a reasonably prudent person would observe 2. Negligent Homicide (MPC only) Negligent homicide is a death that results from gross/criminal negligence 1.
Lack of consent 1. Sometimes consent is really submission to force or threat of force ii. State must prove lack of consent/against victim’s will BRD “Against the victim’s will” and “lack of consent” originally iii. Against the victim’s will 1. IV.RAPE I. Actus Reus i. So. Valid consent is an absolute defense to rape. Attendant Circumstances i. force had to be extrinsic (beyond the act of penetration itself) ii. No. i. Victim not your wife (woman) d. You have to prove that the submission was a product of the force (that there was a nexus between the two) b. Originally. Saying “no” wasn’t enough to show something was against her will— wouldn’t prove BRD that the ∆ knew she wasn’t consenting 2. Reform rape says withdrawal of consent can occur at any time. Not at original CL. Start with presumption that ∆ is innocent ii. state has the burden of proving there wasn’t consent b. Originally. In order for ∆ to know it was against her will. Mens Rea i. Put the burden of proof on the victim to fight back 3. By force or threat of force 1. Knowledge of it being against the victim’s will c. When can “consent” be modified? i. consent could only be modified before penetration (could not withdraw consent after penetration) c. At CL. Analysis i. State bears the burden of proving there wasn’t consent Understand the concepts of “force” and “consent” a. even if she later withdrew her consent after penetration ii. At CL. she had to physically resist 2. Is lack of consent enough to result in rape? i. Had to have resistance to show lack of consent iv. Is all “consent” really consent? i. even if penetration has already occurred 21 II. There also had to be force to prove that it was against the victim’s will The crime of Rape a. Valid consent is an ABSOLUTE defense to rape 1. withdrawal of consent had to occur before penetration i. III. Carnal knowledge b. State has the burden to prove BRD there is no alternative hypothesis that the victim wasn’t raped ii. Original elements Rape is the carnal knowledge of a woman forcibly and against her will a. someone who consents to vaginal penetration could not be raped. . ∆ is presumed innocent.
How this shift of focus opened up a new problem related to mistake and MR i. 1. How the element of “by force” was modified in order to shift the focus of rape from the victim’s actions to the ∆’s state of mind i. ∆ is guilty of rape because victim didn’t know that she was having sex Example: Patient thinks doctor is examining her but he is really having sex with her. the court cannot be sure there was a true threat. A victim who has no motive to fabricate the rape has a higher chance of establishing credibility (Example: V who doesn’t want bf/husband to find out she slept with someone may cry “rape” as an ulterior motive) Reform Rape a. “NO” is enough to show lack of consent ii. Prior acts of the victim are relevant to whether or not her consent was valid i. Without resistance from the victim. Fraud in the inducement 1. ∆ isn’t guilty of rape because victim knowingly consent to the act of sexual intercourse although under false pretenses Example: Doctor says patient will die unless she has sex with him right now 22 . even after penetration i. iv. Did he honestly and reasonably believe she was “with it”? 1. MR of knowledge of lack of consent must be proved. At CL. Fraud in the factum 1. Victim originally assumed the risk if she didn’t resist. Consent is invalid 2. Sometimes the real threat is fear. No further extrinsic force need be proved b. ∆ must withdraw within a reasonable amount of time after consent has been withdrawn. The idea is that if the ∆ had to resort to violence or threaten to use violence. ∆ now assumes the risk of the conduct and the burden of proof if he doesn’t verify her consent. Consent may be withdrawn at any time. A subjectively honest but objectively unreasonable belief will still be found guilty of rape (because it is a general intent crime) c. Solution at CL 1. Prior sexual consent with ∆ makes proving the current lack of consent argument more difficult to prove d.V. he should know that she is not consenting b. If you can offer evidence of violence or threat of violence (an overt manifestation) then you can conclude the ∆ had the mental knowledge of lack of consent a. BUT ∆ has a reasonable amount of time to withdraw before it is considered rape (a question of fact for the jury to determine what they believe to be a reasonable amount of time) c. iii. The only force necessary now is the act of penetration itself. VI. But resistance isn’t always manifested. 1. Jury decides what is a reasonable amount of time Fraudulent consent iii. iii. unwillingness was not against her will. Consent to sexual intercourse is valid 2. The focus shifts from the act itself to the mental state of the ∆ ii. i. Submission is required by force or threat of force ii.
CL: Six tests for attempt. with the step itself being serious enough to warrant punishment a. Elements of CL attempt i. Attempt to lure. These tests seek to prove whether the ∆ has crossed the line of “locus poenitentiae” The judge. Begins to commit a crime but thinks better of it and voluntarily abandons the crime b. Begins crime but sees a police officer and desists b. Question is objective: Would an ordinary person who had gone so far voluntarily stop short of the final step? iii.INCHOATE OFFENSES I. not the jury. attempt to harm child. Incomplete attempt: ∆ does some of what he intended but then desists or is prevented from continuing. Abnormal Step Approach i. Mere preparation is NEVER enough! 2. Very similar to physical proximity/last act ii. Focus is on what the ∆ hasn’t done yet 3. An attempt is a step toward the crime that goes beyond the point where a normal citizen would go ii. OR is unsuccessful in the attempt (shoots and misses the victim) 2. Target offense—the crime the ∆ is attempting to commit. b. the ∆’s conduct would have resulted in the crime. ∆ either assumes some fact mistakenly (pulled trigger thinking the gun was loaded but it wasn’t) b. What is it? Inchoate offense: a step toward the commission of a crime. Double inchoate offenses: When you attempt an attempt crime such as assault (which is an attempt to commit battery) Example: Attempting to lure a child into a car presumably with intent to commit further harm. Complete attempt: All steps have been taken and every act has been done but the ∆ is unsuccessful in the intended result a. Evidentiary issue i. in the ordinary course of events without interruption. ATTEMPT (least culpable) Attempt: the steps taken toward the commission of a crime that surpass the “locus poenitentiae” (the point of no return) a. Actus Reus: Drawing the line between “preparation” and “attempt” 1. Was the attempt complete or incomplete? 1. Dangerous Proximity Test 23 II. Probable Desistance Test—likelihood of abandoning the crime i. a. or soliciting to commit b. Conduct constitutes attempt if. . applies these legal tests: a. conspiring to commit. Objective test: Would a reasonable person take that particular step? c.
There is nothing more for the ∆ to do Example: Unlicensed abortion doctor not guilty of performing abortions even though the patient was de-robed and all his instruments were on the bed ready to go e. and negligence are not enough to prove attempt c. Has to have purpose to produce the result b. later drove out to the field. and walked toward the cop after loading his gun. When you engage in the offense you do so with the purpose of committing that offense ii. The acts “speak for themselves. directly tending toward the completed crime. Res Ipsa Loquitur/Un-equivocality Test i. and NOT what was said Example: The case where the man threatened to kill another man while at a bar. Law wants to deter people from doing wrong things. Can’t say for certain what his intention was based on his verbal statements alone f. The overt act required for an attempt must be proximate to the completed crime. ∆ has obtained all the elements needed for committing the crime. not just thinking about them iii. Can he be convicted for attempt under: • Dangerous proximity test? YES (the crime is so dangerous and he is so close) • Res Ipsa loquitur? YES (the act of having C-4 in his shoe speaks for itself) • Abnormal step? YES (putting C-4 in shoe and getting on a plane is abnormal) • Indispensable element? YES (he has every element he needs to ignite it) • Physical proximity? NO (he hasn’t yet committed the last act) ii.” ii. All you have to prove is that ∆ had purpose to act iv. An act constitutes an offense when the ∆’s conduct unequivocally demonstrates and intent to complete the crime iii. Can’t be convicted if he is missing even one thing. The more serious the nature of the offense. You can prove attempted murder and voluntary manslaughter because manslaughter has the intent to kill element 24 . Intent (purpose) to bring about the substantive offense a. but has no direct line of sight Good hypo using all the tests: Reed is arrested on a plane with C-4 in his shoe.i. Generally: i. loaded. Indispensable Element Test i. Looks at the danger and probability of the offense ii. Example: ∆ has gun. Physical Proximity Test i. Intent to commit the actus reus 2. Sometimes called “last act” ii. the further away from completion the actions need to be before they qualify as attempt d. You can be guilty of an attempted strict liability crime because there is no MR element to prove. what he did. Dual MR requirement: 1. Knowledge. or amounting to the commencement of consummation iii. You look at what the ∆ was doing. recklessness.
Judge’s instructions to jury are really asking the jury if they are satisfied that the act is substantial enough that it leaves only one inference—purpose 2. to commit a violent injury of another III. Example 2: Same story but this time it almost hits a soldier. Linkage between AR and MR 1. the judge can determine whether he thinks the act was a substantial step. Attempted murder? NO. Attempt to commit a battery 2. Soliciting an innocent agent 3. How does MPC view attempt? i. You cannot attempt what you don’t intend to do—so you can’t attempt any unintentional crime 1. Completed attempt: Easy to determine ∆’s state of mind because the last act has already occurred. the just MUST instruct the evidence be considered by the jury on whether or not the ∆ was attempting a crime a. almost killing him. Assault 1. Gathering info about the place where crime will occur d. Purpose to bring about the target offense vi. Shifts the focus from the act to the mens rea. Murder? Yes. Lying in wait b. Why? You can’t attempt a crime with a reckless MR element d. Enticing or seeking to entice the victim c.v. It’s like the res ipsa loquitur + other states of mind vii. couple with presence and ability. or felony murder) a. Possession of materials to use in committing the crime that serve no other purpose but the unlawful one f. If the ∆ committed an act off of the list. Look at the steps the ∆ has taken and other acts he has done to determine whether intent can be inferred 2. you cannot attempt to commit a reckless crime (i. and then he can instruct the jury that they may determine whether there was an attempt v. Example: Corn is cleaning his gun and ignores signs to clear the gun and take out the magazines (ignoring the known risk = reckless) He drops gun and it fires and he kills a soldier.. Incomplete attempt: Harder to determine because the last act hasn’t occurred. Unlawful entry of a structure e. depraved heart murder. If the ∆ committed an act on the list. Defenses to Attempt 25 . Actus Reus: Is the alleged conduct a “substantial step” towards the completion of the crime? 1. involuntary manslaughter. focus turns to the ∆’s state of mind iv. Do the acts that ∆ has already done strongly corroborate (confirm or give support to) a substantial step? ii. Mens Rea requirement 1. Possession of materials at or near the contemplated crime scene (rat poison students) g. What kind? Depraved heart b. An unlawful attempt.e. the act just wasn’t successful iii. MPC lists conduct that may be held as a substantial step.
1. It can’t be because he heard an alarm. Attempt is attempt. Always a defense to an attempt charge—only effective defense 2. If that act was a substantial step. the accomplice will get off too ii. Abandonment At CL when the ∆ voluntarily gives up. the crime. it was attempt. the locus poenitentiae is moved and it’s as if the attempt never occurred in the first place. Pure Factual Impossibility If the facts had been as the ∆ assumed them to be. but where there is a factual mistake related to the AC Example: When ∆ shoots with intent to kill A. or abandons. PROBLEM: If ∆ had an accomplice. guard dogs. a. but A has been replaced with a mannequin Example: When ∆ shoots with intent to kill deer. Renunciation At MPC when the ∆ voluntarily gives up.a. but the age is really 16 and not 15. Never a defense to an attempt charge 2. so she is legally able to have sex with him. BUT ∆ 26 . the crime. saw a cop. but deer is a stuffed toy Example: Attempting to bribe a juror. Factual mistake relates to a legal element that is usually an AC 2. You can’t attempt a crime that wasn’t a crime to begin with Example: ∆ thinks he is committing statutory rape. Can’t be guilty of attempt because there was no crime Example: ∆ attempts to steal from B what actually ends up belonging to him. 1. Impossibility i. he will be convicted of attempted _______. but the person isn’t a juror b. Hybrid impossibility (only in some CL jurisdictions that haven’t gotten rid of it) ∆’s erroneous factual assumption nullifies a requisite attendant circumstance 1. he’d have been guilty 2. When the goal was illegal. When the attempt fails because a fact the ∆ assumed when he engaged in the conduct was wrong Example: ∆ thought the gun was loaded but it wasn’t when he shot at her ii. Can’t be convicted of stealing something that actually belongs to you Example: “Stealing” ketchup when it was free anyway iii. the crime of attempt is erased 1. Pure Legal Impossibility ∆’s erroneous legal assumption nullifies the ability to consummate the offense 1. or he does something that foils the crime (prevents it from happening). It’s a legal fiction because in CL they act like there was never an attempt in the first place. or is afraid of being caught. even though if he had been caught in that first act. or renounces. Abandonment (at CL)/Renunciation (at MPC) i.
Difference between CL and MPC i. inducing. Intent to commit target offense 1. Intent (purpose) to consummate target offense f. . Original CL requirement: effective communication of solicitation i. SOLICITATION The crime of asking. even if the solicitee never received notice. Has the ∆ passed the locus poenitentiae? b. MPC variant: “Uncommunicated” solicitation i. At CL: Conspiracy must be at least bilateral i. the ∆ is charged with that crime and not solicitation c. solicitation) b. At MPC: Conspiracy may be unilateral i. The ∆ thinks the other person really agreed although they may be a cop or someone pretending to agree to set them up c. Example: The case where the ∆ tried to mail two letters to his wife to get the daughter not to testify against him h. Actus Reus i. Once ∆ asks someone to commit the crime and that person does. 1. then the crime of solicitation is complete. Cannot conspire to commit a reckless or negligent act (so no depraved heart or involuntary manslaughter) 2. Solicitation is really only an offense when the person doesn’t agree to the crime (agreement forms a conspiracy as soon as there’s an overt act) d. Acting. Dual MR i.can renounce his criminal purpose. The second person the ∆ makes the agreement with must actually be agreeing to commit the crime and not just pretending (if pretending. enticing. As long as the ∆ believes he has communicated the solicitation. enticing. Solves the problem with accomplices: Even if the ∆ renounces his criminal purpose. The offense of solicitation merges into the crime if the offense is actually completed j. the accomplice may still be found guilty of attempt or the crime IV. Actus Reus i. Did the ∆ voluntarily renounce the crime (an affirmative defense that erases the crime of attempt)? 2. Ask: a. Intent to procure ii. procuring the commission of a crime e. Intent (purpose) to agree ii. The case where the man sold phone service to hookers: Court said he had to have (a) knowledge of the illegal use of the goods and (b) intent to 27 V. Mens Rea i. Agreement (the act) to commit the prohibited result (reus) d. Uncommunicated solicitation under CL is attempt to solicit (double inchoate offense) and under MPC is still solicitation CONSPIRACY The crime of agreeing to commit a crime a. or counseling of another to commit a crime a. The solicitor had to have been successful in notifying the solicitee g. The offense is complete as soon as the ∆ asks someone to commit the target offense b.
accomplice liability is actually “derivative liability” 28 . 2. They would be charged with five counts larceny and one count conspiracy because the conspiracy was one agreement to steal the five (not five agreements). Example: Conspire to steal one laptop and do it successfully. Intervening superseding causes can sever co-conspirator liability 3. Collusion in criminal purpose is more dangerous than committing the crime Does conspiracy merge with the target offense? i. in order to commit a conspiracy. i. At CL: Conspiracy NEVER merges with the target offense (unlike solicitation) 1. Two or more people ii. h. An overt act is a legally made up locus poenitentiae 2. 3. Example: Conspire to steal 5 laptops but only steal one. In most jurisdictions. you must commit an overt act (virtually any act will suffice) 3. Acts in furtherance a. further that use a. All liability flows from the principal—the actual perpetrator a. Foreseeability a. Example: Conspire to steal 5 laptops and steal all 5. then the coconspirator is not guilty for that offense 2. Can you be charged with conspiracy to commit second-degree murder? a. 1. They would be charged with one count larceny because the one count merges with conspiracy. The act has to be foreseeable as something that could happen during the commission of the crime b. yes. If the goal of the act is not the goal of the conspiracy. The basis behind Pinkerton’s rule is that we impute liability based on the conspiratorial relationship between all parties 4. so long as the theory is under purpose/intent to kill Attendant circumstances i. They would be charged with one count larceny and one count conspiracy to steal 5 laptops. you no longer have conspiracy Basic rationale of criminalizing conspiracy i. ∆ is charged with offense and conspiracy ii. Therefore. Theoretically. At MPC: Conspiracy doesn’t merge unless the object of the conspiracy is one crime (when the criminal gets charged he will only be charged for one offense) and that crime is consummated 1. g. Knowledge isn’t usually enough to prove purpose UNLESS there is only one use for the product and it is illegal. then knowledge becomes purpose 3.e. Co-conspirator liability: When a person who is not the actual “perpetrator” of a crime is held accountable as if he was Pinkerton Rule: Every co-conspirator is liable for any crime committed by any other co-conspirator that is in furtherance of the agreement and is foreseeable. Concurrence point: that the act and MR concur because you did the overt act Once you nullify the specific intent element of purpose to commit the offense. f. Overt act in furtherance of the crime 1.
At CL 1. k. Damon asks Affleck to pull over and he gets out and goes to beat the guy up on the basketball court. 2. Mirrors the attempt rule of renunciation. Conspiracy? No. No such thing as withdrawal because if you never commit the overt act. Defense: “Withdrawal” can only relate forward: a. When you communicate to all conspirators (even those you don’t know) that you are out b. Still guilty of conspiracy. When you aren’t giving an exorbitant amount of the product but you have clear notice of the aggravated nature of the crime for which that product will be used l. OR Intervene somehow to foil the plan 3. Knowledge of aggravated nature of the crime a. Example: Matt Damon and his friends in Good Will Hunting. you can be charged with conspiracy 2. Direct evidence 1. Co-conspirators can make statements about other co-conspirators 3. Must prove purpose. Withdrawal? i. Very rarely do you prove conspiracy by direct evidence of the actual agreement ii.j. then that stake is the sufficient circumstantial evidence to imply an agreement 2. BUT if there is only one use for the product. Friends get out and beat him too. Since conspiracy is its own crime and it doesn’t merge with substantive offense. When you have a complex crime. circumstantial evidence is usually sufficient to infer a conspiratorial agreement 4. Stake in the venture a. then knowledge becomes purpose iii. Proving an intentional agreement i. Inference of agreement 1. Imputed agreement (kind of like willful blindness because it is obvious that what he was doing was illegal and he should have known but he just closed his eyes to it) 1. no express or implied agreement (unless you can prove they knew how much he hated him) Accomplices? Yes. Must inform everyone (even those you don’t know) that you are out 29 . even if the crime is never committed. Defense: Renunciation relates both forward and backward a. but severs Pinkerton liability and ∆ is no longer guilty for future crimes of co-conspirators ii. You can be an accomplice without having conspired i. At MPC 1. Knowledge usually isn’t enough. there was never an act in the first place (legal fiction) a. Usually this is how you prove the act of agreement—KEY is that the circumstances rule out the fair and rational hypothesis that it was a spontaneous crime because conspiracy must be made prior to the commission of the crime 2. When the purveyor of the goods acquires a de facto stake in the criminal venture. and it is an illegal one.
000 murders c. He can be charged with three counts of conspiracy because there are laws that prevent all three of those offenses.a. then it severs ∆’s Pinkerton liability for further acts b. If ∆ can do that. Was there a conspiracy? Yes b. Example: Bombing the World Trade Center killed 4. bribery). adultery. BUT if ∆ intervenes and foils the crime (doesn’t even have to renounce. Example: ∆ conspires to smuggle drugs into the country. then you can have multiple conspiracies b.. there is no crime of conspiracy UNLESS more persons participate in the agreement than are necessary for the crime a. Exception: If there is a statute that gives a specific law stating conspiracy ii. Exception: When the law prohibits an agreement for certain purposes. Legislative exemption doctrine When the allege co-conspirator is the intended victim that the law seeks to protect. and one agreement has more than one purpose that is prohibited by a statute. 30 . sells them. and has a weapon on him while doing it to protect it. You charge ∆ with one conspiracy and 4. dueling. Wharton Rule If the crime requires a plurality of participants (i.000 conspiracies to commit murder. Affirmative defense of renunciation because he never intended to go through with it proven through his foiling of the crime m. Was the ∆ a part of it? Yes c.000 people. Example: Distribution of porn to a minor.e. The law is intended to protect minors iii. Should he be guilty? NO. You don’t charge ∆ with 4. renunciation is implied by foiling the crime) then he can erase all guilt for conspiracy and future crimes = an affirmative defense a. you cannot charge the ∆ with conspiracy to commit the crime a. General limitations on conspiracy i. Braverman doctrine You charge the number of conspiracies based on the number of agreements and not the number of target offenses a.
a child) to commit the crime. Innocent Instrumentality doctrine: If someone uses an innocent person (say. failing to prevent (if there is a duty to intervene) b. After the fact: knowingly assists a suspect avoid arrest. the accomplice is charged as if he committed the crime too so long as the offenses were the “natural and probable consequence of the original offense” ii. You can intend to encourage a reckless act. An accomplice’s testimony in and of itself is never enough. Accomplice liability is “derivative liability” (derived from his own participation in the crime) i. MR: dual intent 1. encouraging. AR: aiding and abetting. In the first degree: the actual perpetrator ii.ACCOMPLICE LIABILITY When a person who is not the actual perpetrator of a crime is held accountable as if he was I. The presence has to be for the purpose of facilitating the crime ii. All liability “flows” from the principal (the actual perpetrator) i. Principals (at the scene of the crime) a. and determine what the level of culpability is iii. or conviction 1.. Accomplices can be convicted of a greater offense than the principal i. After the fact is now an offense of its own (i. III. IV. Accomplice acted (or failed to act if there was a legal duty) with the level of culpability required to establish the offense “aided” c. Must have corroboration more than just proof that the crime was committed II. soliciting. In the second degree (accomplice): actually or constructively present at the scene of the crime and intentionally assists principal in 1st degree Accessories a. MERE PRESENCE IS NEVER ENOUGH! i. You can be an accomplice and not be a co-conspirator f. You do not charge the accomplice with “being an accomplice. connect that with the accomplice’s MR. Intent to provide assistance (aid) to Principal in the 1st degree 2. hindering apprehension or arrest) Common Law Elements of accomplice liability a. Doesn’t have to be only a purpose or knowledge intent. Whatever crime the principal commits. Knowledge is not enough to infer liability g.” You charge them with the crime itself e. Liability d. 31 . apprehension. then that person is held as the principal in the 1st even if he wasn’t there b. Before the fact (accomplice): intentionally assists the perpetrator before the crime is committed but isn’t present during the crime c. BUT the assistance need only be trivial to satisfy the AR component iii. trial.e. Look at the act that the accomplice encouraged. The relationship between the accomplice’s state of mind to the completed crime a.
Innocent instrumentality doctrine is retained but NOT characterized as accomplice liability. VII. VI. The accomplice can be convicted ii. Accomplice can “abandon” the crime. Accomplice can “abandon” the crime.V. but the abandonment must: a. MR: 1. but assistance need only be “trivial” d. AND accomplice acted (or omitted to act) with the level of culpability required for the prohibited result e. Neutralize the effectiveness of the offense b. but the abandonment must: a. As a general rule. ii. Notify law enforcement in a timely manner so they may intervene and prevent the offense 2. accomplice prosecution can only be after st the principal in the 1 degree has been convicted ii. fail to prevent (if there is a duty to intervene) 1. The accomplice cannot be convicted ii. In CL i. Expands the scope of AR iii. Does not expressly include “encourage” but “encouragement” could be aiding or attempting to aid Acquittal and Abandonment a. Notify law enforcement in a timely manner so they may intervene and prevent the offense c. there was no crime i. AR: aid (or agree to aid or attempt to aid). Make some other effort to prevent the crime Defense to accomplice liability a. Neutralize effectiveness of the offense b. If the principal is acquitted on a justification defense. Duress 32 . Purpose to promote or facilitate the offense 2. Conviction of principal in the 1st degree is NOT a pre-requisite to accomplice liability so long as the underlying offense is established iii. Mere presence is never enough. Modifies the “acquittal” rule iv. If the principal is acquitted on an excuse defense. In MPC ii. MPC Elements of accomplice liability c. MPC Approach: 2. there was a crime i.06 i. Necessity b. solicit.
You don’t have clean hands. Generally a. Clean hands doctrine a. With defenses. d. then not unlawful. Special requirements (all derived from necessity and all must be there) 1. Ask: How much force did ∆ use? Was it more than what he had to 33 . Always ask: Was it really necessary? If necessary. Threat was unlawful 3. the judge will tell the jury that the state has the burden to disprove this theory by proving BRD that the mistake was not honest and/or not reasonable e. JUSTIFICATION DEFENSES What is normally a crime isn’t a crime because it was necessary. Sometimes the evidence in the government’s case in chief brings the evidence c. When ∆ raises an affirmative defense 1. a. Burden of production—bringing evidence ii. At both CL & MPC: you can make your hands “clean” again by totally withdrawing c.DEFENSES I. Accomplice liability cannot flow from these defenses because there is no crime. ∆ cannot be the provoker (“dirty hands”) b. Response was necessary (no real alternative) ii. MPC: If you are the aggressor and the victim responds with excessive force. You started it. OR the it may change the legal standard of persuasion from BRD to ∆ having to prove the lower standard of by a preponderance of the evidence (more likely than not) II. If not unlawful. Self Defense i. State has met its initial burden of proving both BRD: i. If justified. ∆ never has burden of production or persuasion except in an affirmative defense d. b. CL: It doesn’t matter if you were the aggressor and he responded with excessive force. All or part of the burden may shift--∆ will have burden of production and depending on the jurisdiction may also have burden of persuasion 2. then not a crime. Actual or apparent threat of death or grievous bodily harm 2. your hands become clean again and you can claim self defense 2. you start by assuming the state has proved ALL required elements i. Pure/affirmative defenses must be brought forward by the defendant after the state has proved its case in chief b. Belief of imminent peril (MPC: immediate peril) 4. When ∆ raises a mistake issue. Burden of persuasion—persuading the jury 1. Proportional response a. then justified. Elements of self defense: 1. No self defense.
Castle doctrine 1. It is only necessary if there was no viable alternative to get away b. Threat must be IMMINENT a. If you are in your “castle” you don’t have to retreat 2. If ∆ used more force than what was needed. At the time the ∆ acts there was a threat and 6. MPC: Belief it was necessary only has to be honest. he can’t claim self defense. Retreat doctrine a. The “no alternative moment” may arise before the actual act from the ∆ 1. negating the malice required for murder 2. Relaxes imminence to what was immediately reasonable (softens the temporal requirement) ii. At CL: would an objective reasonable person in the ∆’s position knowing what the ∆ knew honestly (subjectively) and reasonably (objectively from perspective of ∆) have believed it was necessary? 2. Before ∆ can claim use of force for self defense ∆ must have retreated “to the wall” (as far as he could have reasonably gone) c. Imminence is NOT always synonymous with necessity 7. c. Has NOTHING to do with intent or purpose to kill but that the judgment was reckless 34 . Use of deadly force is ONLY justified when protecting a life 3. then it wasn’t necessary. In some CL jurisdictions. Test for fact finder: 1. At CL: about to happen. Exceptions: i. Jury determines the necessity judgment of imminency through and objective critique from the lens of the ∆’s subjective state of mind: a. it acts as a partial excuse and downgrades murder to manslaughter because the honest mistake in ∆’s judgment of necessity makes it a reckless decision.do to stop the force? b. then ∆ is guilty of lesser included offense c. Includes the home and the area around it ii. wasn’t justified. ∆ who honestly but unreasonably acts in self defense will get an imperfect self defense 1. Example: The case of the lady who shot her husband who had beaten her for 20 years while he was sleeping 5. BUT if the judgment was reckless or negligent. And then factor in everything ∆ knew about the victim iii. from a bullet) then ∆ doesn’t have to retreat 4. overwhelming. They consider what ∆ saw at that moment (objective) b. NO ALTERNATIVE MOMENT b. therefore. no opportunity to avoid the threat i. wasn’t lawful. If retreat will not provide safety (say. Instead of erasing the crime altogether. At MPC: immediate. Imperfect self defense i.
The person being defended must meet the same qualifications ii. that the ∆ honestly believed it but the belief was reckless (acts as a partial excuse) 1. Still may be able to claim imperfect defense of others if makes a reckless judgment of necessity iii. If one comes to the aid of someone who had “dirty” hands. You may never use a mechanical device to protect your home because they don’t reason or determine necessity g.e. It’s a theory of rational judgment and decision making. burglary at night) 1. Instead of erasing the crime.. At original CL: people could defend property against “felonies” but because felonies were all violent. the real trick is the “clean hands” part 1. Defender steps into the shoes of the defended and only has as much right to defense as the defended would 2. the force is a result of a natural force 1.. although violating the law. if jury determines the judgment was reckless. A defense of necessity may be raised if the ∆’s actions. Defense of Property i. Today. Again. Reckless judgment of necessity i. didn’t just shoot at a 5 year old who snuck in because she was “in his castle”) iv. it downgrades murder to manslaughter because it negates the purpose required for murder e. then he has no defense of others claim a. Necessity—The “choice of evils” defense i. In necessity. Certain threats to the property may also be a threat to life too (i. Reform CL: So long as the defender reasonably believed the defended had a right to self defense. he is justified in his claim of defense of others a. f. Sometimes a greater good to society can be gained by violating the law iii. In MPC. Here. Ask: Was the person the ∆ defended justified in self defense? If yes. Justification defense—nullifies the “reus” (the act that is unlawful) ii.d. An unreasonable use of force isn’t justified because it isn’t reasonable. “I’ll break this law because breaking the law will do a better good to society” 3. Look at the situation at the time it happened—what did the ∆ know? (Subjective) b. were necessary to prevent an even greater harm from occurring 1. ∆ is still exercising free will and making a choice on his own 2. Was that decision reasonable based on what he knew? (Objective) 35 . Necessity is critiqued by society’s interpretation of reasonableness. At CL: ∆ is an “alter ego” of the one he is rescuing. then the ∆ is also justified. Defense of Others i. defense is only justified if it is necessary. Preservation of life is more valuable than even the most valuable property ii. Always a question of whether the ∆ made a good necessity judgment v. a “violent felony” is required to be able to defend with violence iii.e. There is a presumption of threat that is rebuttable so look carefully to be sure that the ∆ was reasonable in his decision (i. Must prove a judgment of necessity (similar to self defense necessity but without a threat to life) a.
Accomplice liability can flow from excuse defenses a. People who coerced him are also guilty of whatever crime they coerced ii. The human is coercing him to the point where he overbears the will of the ∆ and chooses for him 2. An immediate threat (to human) of death or serious bodily harm 2. Pressure arises from humans due to coercion 1. Elements of duress: 1. This means the ∆’s “value judgment” on the choice of evils is tested by an objective standard from the ∆’s perspective at the time he made the judgment v. up to the jury to decide if homicide is justified by necessity defense b. Example: Doctors separating conjoined twins.iv. An excuse defense. Elemental theory of MR—it is only proper to punish someone if he has the culpable state of mind. They did the act that produced the prohibited result. and they had the MR (because they knew one would die)…Murder? Yes at CL. Killing 1 person to save 10. Accomplices to a duress defense are responsible 2. Was that decision reasonable based on what he knew? (objective) v. knowing one of them dies and one of them will live. MPC: No limit preventing application of necessity as a defense to homicide a. Harm avoided must be greater than the harm caused by breaking the law **Necessity is all based on what was reasonably foreseeable at the time of the action based on perceived necessity. Still need to prove it was necessary 1. ∆ feels he has no alternative because of the coercion. probably not at MPC III. CL: Necessity is never a defense to taking a human life (life is always presumed to be of equal value) a. EXCUSE DEFENSES Excuse defenses nullify the MR of the act so a crime was committed but the actor is excused. Necessity and homicide 1. Act to prevent a significant evil (must be a real emergency/imminent) 2. CL elements: 1. Punishment of someone without free-will will not rehabilitate him and it makes punishment invalid iv. Duress i. Duress negates the MR element of culpability 1. No outright prohibition. Well grounded fear it will be carried out (subjective belief) 36 . Look at the situation at the time it happened from what the ∆ knew (subjective) 2. always personal belonging only to the person whose mind was overcome 1. but he does it in order to avoid a more severe harm iii.000 people was NOT a necessity defense 2. No adequate alternative 3. He knows what he is doing is wrong and not justified.
Technically. If ∆ places himself in a situation where he is likely to be subjected to duress. In crimes where state doesn’t have to prove a specific intent. there is NO voluntary intoxication defense 2. Start with purposeknowledgerecklessnessnegligence c. i. it could negate recklessness to reveal negligence. Unanticipated reaction to medically prescribed drugs ii. BUT. Exception: Felony murder—can claim duress to excuse the underlying felony b. it is like you are having an honest. but unreasonable mistake which would negate the specific intent element of the crime c. At MPC: Allows for instruction of voluntary intoxication defense for any crime a. Involuntary 1. Coerced intoxication i. Drunk negligence=recklessness c. Voluntary 1. Can the ∆ communicate with his lawyer to assist in his defense? ii. Classic example: gang initiation 2. CL: duress is NEVER a defense to homicide a.3. At CL: If ∆ presents evidence of voluntary intoxication. than it bumps back up to recklessness. Rare 2. Pathological intoxication i. then it is a defense b. The defense almost never works because juries are not sympathetic b. he cannot claim duress as a defense. he is entitled to get the instruction of voluntary intoxication defense a. Does the ∆ appreciate the nature of the proceeding against him? 2. Didn’t know what was in the brownies d. you can’t use duress as a defense (don’t worry about this one) b. Someone holds you down and shoots you up b. A complete defense negating the MR of the offense and the AR (volition) 3. Relevant at the time of trial 1. Medical anomaly c. MPC: If you were reckless in getting yourself into a bad situation and duress resulted. Voluntary intoxication defense doesn’t negate the general intent d. Intoxication Intoxication is almost never a defense because juries usually revert to the general culpability of the ∆ i. How do you find out competency? 37 . Duress and homicide 1. Four ways to be involuntarily intoxicated a. If the defense negates the element. No reasonable opportunity to escape (no other alternative-objective) vi. Innocent ingestion i. The idea is that if you are that drunk. if the reason you were intoxicated was voluntary. Competency—whether or not ∆ can stand trial. Insanity i.
it won’t act as a deterrent to punish him. v. Not guilty by reason of insanity v. ∆ didn’t understand the quality and nature of his act b. There is no account for a volitional act—it’s an all or nothing test a. Insanity is a total defense—it’s like duress but it is internal 6. ∆ lacked substantial capacity to conform his conduct to the requirement of the law. vi. Guilty but insane—∆ serve the same punishment. ∆ lacked substantial capacity to conform his conduct to the requirement of the law (volition prong) 1. ∆ lacked substantial capacity to appreciate the criminality [wrongfulness] (M’Naghten prong) b. 1. you can’t 5. Trial is abated until ∆ becomes competent—He will usually go through treatment in a mental hospital 3.iii. Supplement to M’Naghten 2. Two parts: a. Because of mental disease or defect. Related only to the volition component a. Because of mental disease or defect. If the law says you can’t claim a defense of insanity for that crime. Two part test that relates completely to cognition: a. Goes against the basis of criminal law and the idea of punishing the culpable mind 3. No due process right to raise a defense of insanity 2. Insanity is relevant at the time of the offense—that he was unable to exercise free will which negates the culpability M’Naghten Rule** 1. but he serves it in a mental institution 4. No longer an “all or nothing” test a. Because of mental disease or defect. Guilty but insane a. Because of mental disease or defect. Durham test/“Product” test (usually not on exam) 38 . Judge will order a court psychiatrist if there are conflicting competency results from state and ∆ 2. Because of mental disease or defect. Allows a range of cognitive and volitional control capacities and places ∆ along a spectrum of mental diseases/defects 3. Softens the M’Naghten rule by changing “know” to “appreciate” and adds a volition prong—combined M’Naghten with irresistible impulse test 2. Problem: psych doesn’t deal in absolutes. Not guilty by reason of insanity—∆ is acquitted and goes free b. Insane people stand trial all the time (but they are competent at the time) Insanity defense 1. iv. Judge is allowed to court order ∆ to take medication to become competent 4. The idea behind it is that if the ∆ didn’t know the difference between right and wrong. MPC test for insanity** 1. ∆ knew the quality and nature but he didn’t know the act was wrong 2. An accused is not criminally responsible if his unlawful act was the “product” of mental disease or defect vii. so the test created an inherent friction with the science Irresistible Impulse/Control Test 1.
knowing right from wrong 3. Unable = a total loss of cognitive ability d. It’s almost as if the ∆ is intoxicated d. Operates kind of like Extreme Emotional Distress or heat of passion without the external trigger i. Operates like voluntary intoxication because it erases the requisite MR i. Burden of proof a. Pure cognitive test (no volition) b. It can be the same evidence that was used to try to prove insanity b. Took away the volition prong b. “Product” indicates that if not for the mental disease. the ∆. Could be the result of lack of control. This test allows expert to usurp the role of the fact finder by saying there was no way the ∆ acted on his own because the ∆ acted because of his mental disease or defect. Texas requires proof of a severe mental disease or defect a. Diminished Capacity (more like a failure of proof defense) i. The state may but the burden of proof is on the ∆ for both production and persuasion 3. It is an affirmative defense to a prosecution under any Federal statute that. at the time of the commission of the acts constituting the offense. the ∆ would not have acted as he did a. The crime is acknowledged but ∆ is partially excused because jury doesn’t think he was totally normal and the ∆ gets convicted of a lesser degree (Example: Manslaughter instead of murder) b. ∆ isn’t arguing it wasn’t wrongful. Moved from MPC standard back toward M’Naghten a. as a result of severe mental disease or defect. Wrongfulness suggests a ∆’s ability to appreciate his acts were condemned by society ii. Experts rendered the opinion on the ultimate issue of guilt/innocence Where we are now—Federal Insanity Defense Reform Act 1. Used to reduce culpability of the ∆ based on evidence of mental disease or defect that was insufficient to establish insanity 1. ∆ offers evidence of mental disease or defect to defeat prosecution evidence that ∆ acted with the requisite mental intent i.2. Sliding scale of capacity to “appreciate” has been reduced again c. Culpability theory of diminished capacity a. was unable to appreciate the nature and quality or the wrongfulness of his acts i. . Success results in a total acquittal 39 viii. ∆ was unable to know the acts were wrong i. Elemental theory of diminished capacity a. Not a downgrade—it is a nullification of a specific element c. He is arguing it wasn’t wrong 2. Something happens in ∆’s mind that reduces his ability to form the requisite MR c. Insanity is a culpability theory of defense 2.
2. Diminished capacity means you go free.ii. iv. Clark v. Arizona case where the kid shot and killed a police officer thinking he was an alien invading town iii. Insanity finding means you go to a mental hospital. You don’t plea diminished capacity. Most states disallow evidence of mental disease or defect except for an insanity defense 40 . It is more beneficial for the ∆ to be found to have diminished capacity than to be found “not guilty by reason of insanity” because: 1. Judge will instruct for diminished capacity after an instruction for insanity v.
there is no legal possession because consent is invalid ii. Intent to take (general intent) 2. you have committed the actus reus of larceny 1. Example: Giving a memorial flowers to honor the dead is a custodial right to the memorial meant only for the purpose of memorializing the deceased d. Example: Starting a rental account to rent a movie (given possession) but doing it with the purpose of permanently depriving the store (keeping the movie) (larceny by trick) e. and ownership i. Ownership 1. BUT if you can convince a jury that the ∆ honestly but unreasonably believed the item was abandoned. Owner retains constructive possession iii. If you take it. Mislaid property i. MR: 1. Only of personal property because real or intellectual property isn’t transportable ii. Custody 1. Concurrence 1. When property is given with no conditions & you have full dominion and control iii. Possession 1. you convert custodypossession and have committed a trespassory taking 3. Attempted larceny if there is no carrying away iii. then it negates the specific intent to steal and you are left with a lesser included offense of unlawful/trespassory taking 41 . Owner of property may still have constructive possession over the property at the time. Larceny by trick i. Very slight movement is required 2. AR: trespassory taking 1. The intent to steal MUST occur at the time of the conversion 2. If you obtain consent to possession by trick/deception. A temporary.THEFT I. If you go outside of the conditions. ∆ can still be convicted of larceny based on continuing trespass c. Elements i. conditional possession given by the person with constructive possession 2. a. The person with the title to the property ii. Continuing trespass—the trespassory taking continues until the taking is terminated. Intent to steal (deprive permanently) (specific intent) iv. ∆ takes an object meaning only to deprive temporarily (borrow) but then later decides to steal it. Possession. custody. AC: carrying away of another’s property (asportation) 1. Larceny The intentional trespassory taking and carrying away of the personal property of another with the intent to permanently deprive a. Evolved out of trespass b.
Teller keeps the cash. Embezzlement Makes criminal the conversion of property in a non-trespassory manner a. ∆ makes an express or implied false pretense or misrepresentation ii. MR: knowingly misrepresent with intent to defraud 42 . Entrustment ii. but if he breaks the bulk. Lawful possession of property on behalf of an owner that you then convert to your use with an intent to permanently deprive the owner b. Robbery Larceny by use of force or threat of force i. II. If you can’t prove intent to steal (deprive permanently) then it is NOT robbery or larceny but maybe aggravated assault or another crime 2.ii. he is guilty of larceny g. Example: Customer gives bank teller (agent of the bank entrusted with this chore) a cash deposit. At what point does property stop being “lost” and start being “abandoned” 1. Finder of abandoned property must make a reasonable effort to find the true owner for the statutory period of time 2. and takes part of the bail. I’ll beat the crap out of you!” NOT robbery. it isn’t larceny. Bailment i. MR is still intent to steal 1. There is always a causation issue but there doesn’t even have to be a direct causal link c. Force or threat of force is an attendant circumstance ii. Distinction between larceny by trick and false pretenses is title (ownership) of property b. Owner turns over title to the item under false pretenses 1. The owner of the property parts with the property in reliance on the false representation iv. If bailee takes entire bailed item. Key components i. “If you don’t give me the car. If it is truly abandoned. One says. Elements i. Maybe assault.Theft by false pretenses When ∆ obtains both possession and title to property by false misrepresentations a. Breach of the trust III. Example: Siblings arguing over the use of the car. no larceny because the true owner renounced possessory interest f. Example: Switching price tags for an item to pay the lower price. Intent to defraud the owner of the property iii. c. When you give someone possessions to carry somewhere (Example: Movers) ii.
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