crim law katz 19993 by 7M20P11

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									Criminal (Katz)                                                                                                                                                    Page 1 of 64
Spring 1999



CASE STUDY -- REGINA V. DUDLEY AND STEPHENS ..................................................................................4

PERSPECTIVES ON PUNISHMENT ......................................................................................................................4
    DETERRENCE .............................................................................................................................................................4
    REFORM .....................................................................................................................................................................5
    INCAPACITATION .......................................................................................................................................................6
    RETRIBUTION .............................................................................................................................................................6
    MIXED THEORY .........................................................................................................................................................7
ACTUS REUS -- THE BAD ACT .............................................................................................................................7
            Voluntary Act Doctrine ...................................................................................................................................................... 7
    OMISSIONS .................................................................................................................................................................7
            Barber v. Superior Court .................................................................................................................................................... 8
            Model Penal Code, § 2.01. Requirement of Voluntary Act ............................................................................................... 8
            Jones v. United States......................................................................................................................................................... 8
            Omissions: Exceptions to the no-liability rule................................................................................................................... 9
    POSITIVE ACTS......................................................................................................................................................... 10
            Voluntary Acts and the Model Penal Code ...................................................................................................................... 10
            Martin v. State .................................................................................................................................................................. 10
            People v. Newton ............................................................................................................................................................. 11
            Robinson v. California ..................................................................................................................................................... 11
            Powell v. Texas ................................................................................................................................................................ 12
    THE THOUGHT DOCTRINE ........................................................................................................................................ 12
MENS REA ................................................................................................................................................................ 13
            Regina v. Cunningham ..................................................................................................................................................... 13
            Regina v. Faulkner ........................................................................................................................................................... 14
            Santillanes v. New Mexico ............................................................................................................................................... 14
            United States v. Jewell ..................................................................................................................................................... 15
    MPC -- REQUIREMENTS OF CULPABILITY ................................................................................................................ 15
            Purposely .......................................................................................................................................................................... 15
            Knowingly ........................................................................................................................................................................ 16
            Recklessly ........................................................................................................................................................................ 16
            Negligently ....................................................................................................................................................................... 16
        MPC 2.02(6) -- Conditional Intent .................................................................................................................... 17
        Statutory Interpretation ...................................................................................................................................... 17
            General/Specific Intent and MPC ..................................................................................................................................... 17
    MISTAKE OF FACT.................................................................................................................................................... 18
            Moral Wrong Doctrine -- Prince ...................................................................................................................................... 18
            Legal Wrong Doctrine -- Olsen ........................................................................................................................................ 19
    IGNORANCE OF LAW ................................................................................................................................................ 20
            Collateral Law Exception ................................................................................................................................................. 21
            Express Negation Exception............................................................................................................................................. 21
            Reasonable Reliance Exception ....................................................................................................................................... 22
            Fair Notice Exception....................................................................................................................................................... 23
    STRICT LIABILITY .................................................................................................................................................... 24
            People v. Ceballos ............................................................................................................................................................ 24
            Morrissette v. United States ............................................................................................................................................. 25
            State v. Guminga .............................................................................................................................................................. 25
            State v. Baker ................................................................................................................................................................... 26
            The SL Debate.................................................................................................................................................................. 26
            ZR-4 Hypo ....................................................................................................................................................................... 27
            MPC 2.05 ......................................................................................................................................................................... 27
THE MENS REA OF HOMICIDE .......................................................................................................................... 28
    INTRODUCTION ........................................................................................................................................................ 28
    PREMEDITATION-DELIBERATION FORMULA ............................................................................................................ 28
            Commonwealth v. Carrol ................................................................................................................................................. 29



                                                                                                                                                        Johannes de Silentio
Criminal (Katz)                                                                                                                                                 Page 2 of 64
Spring 1999


            People v. Anderson .......................................................................................................................................................... 29
    PROVOCATION ......................................................................................................................................................... 30
      The Nature of the Required Provocation ............................................................................................................ 30
            Girouard v. State .............................................................................................................................................................. 31
            Maher v. People ............................................................................................................................................................... 31
        The Objectivity of the Standard .......................................................................................................................... 32
            Director of Public Prosecutions v. Camplin ..................................................................................................................... 32
            Diminished Responsibility ............................................................................................................................................... 32
    FELONY-MURDER RULE .......................................................................................................................................... 33
            Regina v. Serne ................................................................................................................................................................ 33
            People v. Stamp ................................................................................................................................................................ 34
        Statutory Reform of Felony-Murder Rule ........................................................................................................... 34
        Limitations on Felony Murder Rule .................................................................................................................... 35
            The Inherently Dangerous-Felony Limitation .................................................................................................................. 35
            Merger (limitation to felonies independent of the homicide ............................................................................................. 36
CAUSATION ............................................................................................................................................................. 37
    CAUSATION -- FORESEEABILITY AND COINCIDENCE ................................................................................................ 38
            People v. Acosta ............................................................................................................................................................... 38
            People v. Arzon ................................................................................................................................................................ 38
            People v. Warner-Lambert Co. ......................................................................................................................................... 39
            MPC on Causation -- 2.03 ................................................................................................................................................ 40
    CAUSATION -- SUBSEQUENT HUMAN ACTIONS (INTERVENING ACTS) ..................................................................... 40
            People v. Campbell .......................................................................................................................................................... 40
        Subsequent Actions Intended to Produce the Result ........................................................................................... 41
            Stephenson v. State .......................................................................................................................................................... 41
        Subsequent Actions that Recklessly Risk the Result ............................................................................................ 42
            Commonwealth v. Root.................................................................................................................................................... 42
            People v. Kern .................................................................................................................................................................. 42
            State v. McFadden          -- Rejects Root ............................................................................................................................. 42
            People v. Atencio ............................................................................................................................................................. 43
FOUR WAYS OF LIABILITY -- COMPARISON ................................................................................................ 43
        Principal ............................................................................................................................................................. 43
        Innocent Agent doctine (Perpetration by means) ................................................................................................ 43
        Accomplice Liability ........................................................................................................................................... 43
        Conspiracy .......................................................................................................................................................... 44
COMPLICITY ........................................................................................................................................................... 44
    MENS REA ............................................................................................................................................................... 45
      Mens Rea as to actions of the principal .............................................................................................................. 45
      Mens Rea as to attendant circumstances ............................................................................................................ 47
      Mens Rea as to Result -- The McVay Exception under MPC .............................................................................. 47
    ACTUS REUS ............................................................................................................................................................ 48
    RELATIONSHIP BETWEEN LIABILITY OF THE PARTIES .............................................................................................. 49
            The Feigning Primary Party ............................................................................................................................................. 49
            Innocent Agent Doctrine -- MPC 2.06(2)(a) (Perpetration by Means) ............................................................................ 50
            Culpable-but-Unconvictable Doctrine .............................................................................................................................. 50
    CONSPIRACY ............................................................................................................................................................ 50
            Co-conspirator Exception to Hearsay Rule ...................................................................................................................... 51
        Conspiracy as a Form of Accessorial Liability ................................................................................................... 52
            Pinkerton v. United States ................................................................................................................................................ 53
    FELONY-MURDER AND COMPLICITY ........................................................................................................................ 53
            Killing by a Non-Felon -- Fact Pattern ............................................................................................................................ 53
            Theories of Felony-Murder .............................................................................................................................................. 53
ATTEMPTS ............................................................................................................................................................... 54
        Common Law ...................................................................................................................................................... 54



                                                                                                                                                      Johannes de Silentio
Criminal (Katz)                                                                                                                                      Page 3 of 64
Spring 1999


      MPC -- Majority view ......................................................................................................................................... 55
    MENS REA OF ATTEMPTS ......................................................................................................................................... 57
    ACTUS REUS OF ATTEMPTS ...................................................................................................................................... 58
    SOLICITATION .......................................................................................................................................................... 59
DEFENSES ................................................................................................................................................................ 60
    ABANDONMENT -- SEE ATTEMPTS ........................................................................................................................... 60
    IMPOSSIBILITY ......................................................................................................................................................... 60
      Pseudo................................................................................................................................................................. 60
      Inherent ............................................................................................................................................................... 61
      Legal ................................................................................................................................................................... 61
    NECESSITY ............................................................................................................................................................... 61
    INSANITY ................................................................................................................................................................. 63
    LEGALITY ................................................................................................................................................................ 64




                                                                                                                                           Johannes de Silentio
Criminal (Katz)                                                                             Page 4 of 64
Spring 1999




Case Study -- Regina v. Dudley and Stephens

Regina v. Dudley & Stephens
1) Dudley, with Stephens assent, killed Parker. D, S, and Brooks all ate him. Jury did not know if
   killing was felony and murder. IF the killing was felony and murder, THEN D and S were guilty of
   felony and murder.
2) Arguments
   a) Necessity.
        i) D and S can't show that they would be rescued, so killing can't be necessary.
        ii) D and S can't show that they wouldn't have been picked up in one day, which would make
             killing not necessary.
   b) Self Defense.
        i) N/a, boy was not threatening them. He was innocent bystander.
        ii) Court is not clear if this is a real on innocent threat.
   c) Theft. Extreme hunger justifies theft, so why not murder? However, there is evicdence that theft
        in this scenario is illegal, too.
   d) Analogy to war. Makes case for convicting Dudley. There is a higher duty to sacrifice one's life
        than to preserve it in contexts like this (or war). There is no unqualified necessity to preserve
        one's life.
        i) For Dudley, you can argue that Parker had a duty to die.
   e) Footnote argument (p 136). If 3 are justified in killing 1, but time passess, and 2 kill 1 and 1 kills
        1, then it could have been the sacrifice of 3 for 1. Sacrifice of many for sake of one.
        i) Weak. They were going to die anyway, so choice is really between 3 or 4 dying (1 or 0
             dying).
   f) Law's may be set up that exceed what man can reach, but temptation should not be made an
        excuse. Not a hypocrite if you are acknowledging your own weakness.
3) Disposition
   a) Court passed sentence of death, but Crown commuted sentence to 6 months in jail.

Consequentialists (Utilitarians) v. Deontologists
  Consequentialists think of efficiency, and don't give credence to act/omission.
  Deontological intuition - if you are not acting, then you have committed no wrong. So, only commit
   wrong by acting.
     Think of this debate with 5:1 runaway train example, and with act/omission distinction.
     Consequentialists would think that acting to avoid kiling 5 is optimal.
     Deontologists might say that, by acting, you have killed 1 person. By not acting, 5 people get run
      over.




Perspectives on Punishment

Deterrence
1) Deter commission of future offenses.
   a) General. Threat of punishment deters potential offenders
   b) Specific. Infliction of punishment on convicted Ds leaves them less likely to engage in crime.
2) Bentham. Man calculates pain and pleasure proportionally in deciding whether to act.


                                                                                     Johannes de Silentio
Criminal (Katz)                                                                             Page 5 of 64
Spring 1999


3) Andenaes.
    a) Three general-preventative effects of punishment:
        i) Deterrence
        ii) Strengthens moral inhibitions (moralizing effect)
        iii) Stimulates law-abiding conduct
    b) Achieving inhibition and habit is beneficial in preventing crime.
Criticism
   Major flaw - disproportionate/ineffective punishments. Overly severe punishment, or punishing
    someone and it will never be herad of. So, may stop offender, but others may not be deterred.
   Results with punishment recommendations that don't square with (intuitive) notions of justice.
   Market analysis. Stop repeat offenders, but people may come in and take the new opportuntes in
    criminal profession. May not have proclivity to criminal, but 'gap' will be filled in this professional
    market. So, crime would not decrease that much.
   Retributivists may not like it.


Reform
Radzinowicz and Turner.
1) Three stages of penal policy
   a) Terror. Disproportionate punishment for offense.
   b) Retribution.
       i) Proportionality of punishment based on type of crime.
       ii) Recognized individual rights that could not be sacrificed for terror policy.
       iii) Problem was that it standardized punishment. Did not account for personality variations that
            may require more/less punishment. Thus, ineffective.
   c) Accounting for offender personality.
       i) Punishment based upon the type of offender (personality). That is, length of sentence may
            vary based on guilty party.
Hart.
1) Reform, as a vague objective, includes any strengthening of offender's disposition and capacity to
   keep within the law. Not accomplished by fear of punishment.
2) Reform is a remedial step that fits where criminal law has failed in its primary task of securing
   society from law breaking.
3) Reform should not be central aim of criminal law. Two types of people: those who have broken a law
   and those who have not yet but may. Reform as dominant objective would preclude goal of
   influencing latter group.
4) Current 'uneasy compromise' in law is between
Moore.
1) Two goals of reform as two different ways to render offenders nondangerous.
   a) Making criminals safe to return to streets. Punishment justified as cost-efficient means of
       shortening expensive, prolonged incarceration that would otherwise be necessary.
   b) Making criminals safe to return to streets and capable of leading successful lives. Punishment
       justified as for offender's sake, although against his will. Thus, paternalistic.
       I) NOT APPROPRIATE.
            (1) Misallocation of social resources to people who are not very deserving.
            (2) Paternalism inherently suspicious. Should be reserved for mentally disabled, children.
            (3) Moral blindness. Recasting punishment as treatment makes possible sentences that may
                do more good for ourselves than the offenders.




                                                                                     Johannes de Silentio
Criminal (Katz)                                                                           Page 6 of 64
Spring 1999


Incapacitation
Cohen.
1) Collective incapacitation.
    a) Uniform sentencing for crimes. Ineffective, explodes prison population.
2) Selective incapacitation.
    a) Individualized sentences based on predictions that particular offenders would commit serious
        offenses in the future if not incarcerated. Reduce crimes with little or no increase in prison
        population. Based on prediction of future criminality.
    b) Small number of offenders commits a disproportionately large number of crimes.
    c) Pros
        i) Prediction of future conduct enters into sentencing anyway. Why not be more accurate in
             assessing it?
    d) Cons
        i) Unequal punishment for same crime
        ii) Unjust to convict people for crimes they have not yet committed
        iii) Predictions about future are often wrong (60% false positives)
        iv) Variables in predicting future conduct are discriminatory - especially toward poor (juvenile
             records, employment, education).
        v) Variables are also tied to race, which may disparately impact minorities that have fewer
             opportunities.
3) Criminal Career incapacitation.
    a) At a specific offender type. E.g., robbery offenders. Have short careers, but repeat offenses
        many times in them. Longer, mandatory sentences (2 years as opposed to something less) could
        reduce robberies.
Criticism
   Retributivist. Might consider it too lenient.


Retribution
Kant
1) Power to punish as right of sovereign to inflict pain upon his subject for a crime he committed.
2) Absolute requirement that subject has committed a wrong (otherwise, he is treated as a means only,
    which is bad)
3) Penal law is a categorical imperative.
4) Right of retaliation (jus talionis) - a harm done to another is a harm done to you (you injure someone,
    so you should be injured). Principle by which court can definitely assign quality and quantity of just
    penalty. Thus, murderers must die (but should not be subjected to maltreatment b/f their death).
Stephen
1) Inflicting punishment expresses the hatred that the offense has excited. Criminal law holds that it is
    morally right to hate criminals. Relationship between criminal law and moral sentiment.
Moore
1) Retributivism is that punishment is justified by moral culpability of those who receive it. Distinct
    from rehabilitation and utilitarian (future prevention) views.
2) Retrib creates duty to punish. Emphasis on moral desert of offender: that it is necessary and
    sufficient to punish offender.
3) Distinct from Stephen, who said that hatred of citizenry must be satisfied. Retrib is independent of
    this.
Criticism
   Give them what they deserve. Squares with notions of justice. However, flawed.




                                                                                   Johannes de Silentio
Criminal (Katz)                                                                             Page 7 of 64
Spring 1999


    Major flaw - how do we know 'what they deserve'? Presupposes we know what just desserts are.
     Hard to tell in 'middle cases' (robbery, but might be easier with extreme case like murder.


Mixed Theory
    Moore (utility and retrib). Punishment is justified IFF it achieves a net social gain AND is given to
     offenders who deserve it.
    Mixed theory and pure utility theory both compete against retrib.


Note - Tort liablity won't do work of criminal law
  Poor are judgment prof. They can't pay damages, so no deterrent to disobey
  Counterpoint. What if damages were scaled to net worth? Pay 1/2 your savings, etc.
  No loss of freedom = keep calculating costs and paying them. Insufficient prevention.
  No centralized enforment in tort to determine who committed what crime. Private enforcement may
   not work.
  Tort won't work for: Abortion, Prostitution, Drug sales
       In these cases, think about who is damaged - who would enforce actions in tort? Unless 3rd party
        is harmed, there is no tort action. Bad, b/c something else wrong with conduct other than 3rd
        party effect that we want to deter. Private enforcement requires that there is a victim.



Actus Reus -- The Bad Act

P/f case of crime
   Actus reus - Bad act
   Mes rea - Bad mental state
   Causation

The actus reus consists of
       a voluntary act (or failure to perform a voluntary act that one has a legal duty to perform)
       that causes
       social harm.


VOLUNTARY ACT DOCTRINE
 Act/Omission      (Barber)
 Voluntary Act 1   (Martin)                               2.01(1)
 Voluntary Act 2   (Newton)                               2.01(2)
 Thoughts


Omissions
    General Rule. Subject to a few limited exceptions, a person has no duty to rescue or render aid to
     another person in peril.
    Law distinguishes between an act that affirmatively causes harm and the failure of a bystander to take
     measures to prevent harm.




                                                                                     Johannes de Silentio
Criminal (Katz)                                                                             Page 8 of 64
Spring 1999


BARBER V. SUPERIOR COURT
CB 197
       Rule
           "Murder is the unlawful killing of a human being…with malice aforethought..." Withdrawing
            treatment is not likely to improve a patient's condition is not murder (unlawful killing) - even
            when intentional and with the knowledge that the patient will die.
1) Patient underwent surgery by Ps. Afterwards, had complications and lapsed into persistent vegetative
   state. Ps told Herbert's family, and they request to take him off respirator. Two days later, IV
   food/water removed and Herbert later died. Ps petition reinstatment of murder complaint.
2) Reasoning
   a) Concede that - at termination of treatment - Herbert was not dead, b/c there was some brain
        activity (statutory test) and his heart/respiratory functions were still operating (historical test).
   b) Analysis of Ps' conduct as unlawful, as a matter of law.
        i) There is no criminal liability for failure to act unless there is a legal duty to act. A physician
            has no duty to continue treatment, once it has proved ineffective. So, no need to continue
            life-sustaining treatment once a qualified medical opinion says recovery is unlikely.
   c) Proportionate Treatment. If a treatment has more burdens than gains for a patient, it should not
        be continued.
   d) Wife acted properly as surrogate in deciding to withdraw life support. Children agreed, and there
        was no evidence malice.
   e) No legal requirement of prior judicial approval.
3) Reversed reinstatment of complaint.

Assume Away Test. Subtract away person who act from situation:
  Omission. Die anyway from underlying cause (not on hook)
  Act. Live w/o acting to pull plug (subtracted away for 2 seconds when plug is pulled)
  Two applications to Barber. Subtraacting doctoer away from situation of ceasing life support.
      Narrow. Prosecution - taking off life support is act, it is killing.
      Broad. Defense - not intervening in first palce, would die from underlying complication.


MODEL PENAL CODE, § 2.01. REQUIREMENT OF VOLUNTARY ACT
1. liability must be based on conduct which includes a voluntary act or the omission to perform a
   voluntary act of which person is physically capable of
2. following are not voluntary acts: (a) reflex or convulsion; (b) bodily movement during
   unconsciousness or sleep; (c) conduct during hypnosis or resulting from hypnotic suggestion; (d) a
   bodily movement that otherwise is not a product of the effort or determination of the actor, either
   conscious or habitual.
3. Person is liable for an omission “unaccompanied by action” only if: (a) the law states explicitly that
   is the case; (b) a duty to perform the omitted act is otherwise imposed by law.
4. possession is an act, if possessor had possession of thing in question for an adequate time such as to
   have been able to get rid of it


JONES V. UNITED STATES
CB 191
      Holding
         When a person is criminally charged with an omission to act, government must prove there
          was a legal duty to act.
      Rule



                                                                                     Johannes de Silentio
Criminal (Katz)                                                                            Page 9 of 64
Spring 1999


            The omission of a legal duty owed by one individual to another - where that omission results
             in death of the party to whom the duty is owed - makes the other party chargeable with
             manslaughter.
            This duty must be legal or contractual, and not only moral: moreover, the omission must be
             the immediate and direct cause of death.
  P lived with Green and Green's infant son. Child died from lack of care. P found guilty of
   involuntary manslaughter through failure to provide (food and medical care) for infant. Appeals
   based on failure of trial court to charge jury to find beyond reasonable doubt, as an element of crime,
   that P was under legal duty to care for infant.
1) Reasoning
   a) Where there is liability by omission:
        i) Where statute imposes duty of care
        ii) Where person stands in a certain status relationship to another
        iii) Where one has assumed a contractual duty to care for another
        iv) Where one has voluntarily assumed the care of another and has withdrawn the that person
             from others who could render aid
        v) Creating a risk. A person who wrongfully or even innocently harms/endangers another or
             another’s property or person has a common law duty to aid that party
   b) The jury instructions failed to suggest the need to find a legal duty of care: the only mention of a
        legal duty was the reading of the indictment to the jury. This is not enough
2) Reversed and remanded.


OMISSIONS: EXCEPTIONS TO THE NO-LIABILITY RULE
Elaboration on Jones
   statutory prohibition – a duty to act may be statutorily imposed. Examples include a statute that
    requires a person to pay taxes on earned income, or a statute that requires a driver of a motor vehicle
    involved in an accident to stop her car at the scene. Absent a valid defense, failure to satisfy a
    statutory duty constitutes an offense.
   Common law duties to act that result in “comission by omission” liability.
       Status relationship: A relationship which imposes a duty is usually founded on the dependence of
        one party on the other, or on their interdependence. Examples of such status relationships
        include: parents to their minor children; married couples to one another; and masters to their
        servants.
       Contractual obligation: A duty to act may be created by implied or express contract. For
        example, a person who breaches an agreement to house, feed, and provide medical care to an
        infirm stranger, or to care for a child.
       Omissions following an act: In some circumstances an act, followed by an omission, will result
        in criminal responsibility for the omission, even when there is no liability for the act. Voluntary
        assistance – one who voluntarily commences a rescue or assistance to another in jeopardy has a
        duty to continue to provide aid, at least if a subsequent omission would put the victim in a worse
        position than if the actor had not initiated help.

Good Samaritan Statutes
Certain places make it criminal to refuse to rescue a person in emergency situations (Minn., R.I.,
Vermont, Wisconsin). Statute likely imposes a fine for violation.

Moral Justification for Act/Omission Distinction
 Rachels. There is not a good reason to draw the act/omission distinction. He thinks he has eliminated
  the act/omission distinction by demonstrating two hypotheticals that seem equally criminal: pushing
  baby under water vs. failing to remove it from the water and wanting it to die.


                                                                                    Johannes de Silentio
Criminal (Katz)                                                                             Page 10 of 64
Spring 1999


    Foot. Disagrees. There is a difference between:
           Right not to be interfered with AND
           Right to be rescued from trouble
       Also, look at distinction between origination of harm v. failure to bring aid
    Analyze rights in the following scenarios according to Rachels and Foot:
     a) Island example. Save 5 kids or your 1 kid, each to the exclusion of the other.
     b) Utilitarian surgeon. Need 5 organs to save 5 people, 1 person has them, and 1 will die if organs
        harvested to save the others.
     c) Rachels would say no difference in either situation, Foot would disagree.


Positive Acts
    General Rule. Subject to the limited exceptions where liability may be predicated on an omission, a
     person is not guilty of a crime unless her conduct includes a voluntary act.


VOLUNTARY ACTS AND THE MODEL PENAL CODE
 Required for culpability: § 2.01(1) of the MPC states that “a person is not guilty of an offense unless
  his liability is based on conduct which includes a voluntary act or the omission to perform an act of
  which he is physically capable.”
      Act. A bodily movement - physical, although not necessarily visible, behavior. Excludes the
       internal mental processes of thinking about, or of intending to do, a physical act. Voluntary or
       involuntary. MPC 1.13
      Voluntary. Criminal responsibility should only attach to those who are accountable for their
       actions. Use of mind, not just brain.
          MPC 2.01(2) defines involuntary conduct. Groups reflexes, convulsions, and conduct during
           unconsciousness, sleep, or hypnosis in the “involuntary” category
          2.01(2)(d) says involuntary conduct is is not a product of the effort or determination of the
           actor, either conscious or habitual.


MARTIN V. STATE
CB 171
      Rule
           Criminal liability must be based on conduct which includes a voluntary act or omission to act
            which it was physically possible to have performed.
      Holding
           Accusation of drunkenness in public place cannot be established by proof that accused was
            forced to that place by a police officer.
  Police arrested P at home and took him on public highway, where he manifested a drunken condition
   (shouting profanities). P convicted of being drunk on highway.
  Reasoning. Statute under which P was convicted presupposes a voluntary appearance.
Note
  Prosecution will expand the time frame and counter that Martin’s voluntary act was whatever led up
   to his arrest (perhaps the beating of his wife) – in this sense, his involuntary acts (manifestation of his
   drunken condition in a public place) are necessarily related to his voluntary acts.

Time Frame for Voluntary Act
  If one identifies the D’s conduct broadly enough, it will always include a voluntary act.




                                                                                      Johannes de Silentio
Criminal (Katz)                                                                             Page 11 of 64
Spring 1999


    General Rule. Court should apply the fully stated rule of criminal responsibility to get the time
     frame correct. A person is not guilty of an offense unless her conduct, which must include a
     voluntary act, and which must be accompanied by a culpable state of mind (the mens rea of the
     offense), is the actual and proximate cause of the social harm, as proscribed by the offense.
    Broader time frame. People v. Decina. D, an epileptic, killed four children when the car he was
     driving went out of control during a seizure. Prosecutor alleged that D knew of his susceptibility to
     seizures and failed to take proper precautions. The actus reus of the offense was “the operation of a
     vehicle resulting in death.” It was perfectly appropriate, therefore, to focus on the acts constituting
     the arguably negligent operation of the car.
    Narrower time frame. Martin v. State revisited. A broad time frame might suggest that the D in
     Martin was guilty b/c he became drunk voluntarily, before the police arrived at his home. However,
     the court applied a narrower time frame, one that discounted these prior voluntary acts. A careful
     inspection of the statute shows that the Martin court was correct in its analysis.


PEOPLE V. NEWTON
CB 173
      Holding
           "Where evidence of involuntary unconsciousness has been produced in a homicide
            prosecution, refusal of requested instruction on the subject - and its effect as a complete
            defense if found to have existed - is prejudicial error."
      Rule
           Liability must be based on conduct that includes a voluntary act/omission that was physically
            possible to be performed. Where not self-induced, as by voluntary intoxication or the
            equivalent, unconsciousness is a complete defense to a charge of criminal homicide.
  Newton got into fight with two cops after being pulled over. One cop shot P in stomach. Newton
   then shot the officer at point blank. Newton testifies that there was a gap in his memory between
   being shot and arriving at the first hospital. At trial, a medical expert testified that gunshots to body
   cavities produce reflex shock reaction, which often causes wounded people to lose consciousness for
   up to a half-hour. Newton was convicted of voluntary manslaughter: he appeals.
  Reasoning. "Unconsciousness need not reach the physical dimensions commonly associated with the
   term." It may occur from shock, as described in the expert testimony: it can exist "where the subject
   physically acts in fact but is not, at the time, conscious of acting."


    The Weird Acts Problem. MPC 2.01(2) lists involuntary acts, which include “a bodily movement that
     otherwise is not a product of the effort or determination of the actor, either conscious or habitual.”

Question: How does drug addiction, alcoholism, and sickness fit into the “voluntary act” requirement?


ROBINSON V. CALIFORNIA
     Holding
          A state may not criminalize the mere status of being a drug addict.
     Rule
          The criminalization of a disease is cruel and unusual punishment, and thus is unconstitutional
           under Amendments 8 and 14.
 State statute makes it illegal for person to be addicted to use of narcotics. D had typical indications of
  frequent narcotics use. At trial, judge told jury they convict if they agreed D either was of the status




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Criminal (Katz)                                                                          Page 12 of 64
Spring 1999


     or had committed the act denounced by the statute. That he used such drugs in the county or was
     addicted to them while in the county. Jury found D guilty.
    Reasoning. Addiction to drugs is a disease like leprosy or an STD. Like any disease, it may be dealt
     with by compulsory treatment. Also, like any disease, drug addiction may be involuntary. To
     criminalize such an ailment is clearly cruel and unusual.
    Reversed conviction.


POWELL V. TEXAS
     Holding
         A person may be criminally liable for being in a public place while suffering from a disease.
 D was arrested and charged with being intoxicated in a public place, which violated state law
  (maximum penalty was $100 fine). Trial court ruled as matter of law that chronic alcoholism was not
  a defense, fined D.
 Reasoning
     Chronic alcoholics in general do not suffer from such an irresistible compulsion to drink and to
      get drunk in public. Nothing suggest that they are utterly unable to control their performance of
      either or both of these acts, and thus cannot be deterred at all from public intoxication.
     Criminal punishments have fixed time periods, civil commitment does not. Thus, to overrule the
      lower court's ruling would subject alcoholics to indefinite incarceration.
     Present case is distiguishable from Robinson. D was convicted for being drunk in public (actus
      reus), not for being a chronic alcoholic. Texas was not punishing status like CA did in Robinson.
      D was punished for criminal act that may create health and safety hazards to public.


Current Law For Status Crimes.
  Powell did not overrule Robinson
  Bottom Line: A state may not dispense with actus reus requirement. Some conduct by the defendant
   is required, at least of an involuntary nature.


The Thought Doctrine
1) From a utilitarian standpoint, a society that would punish thoughts would be an intolerable place to
   live. From a retributive standpoint, a society should not punish people for mere thoughts.
2) In 'thinking about killing president' case, it is inconsistent with thought doctrine to convict. Only
   thought, not moving forward through acting (which is then sufficient for criminal liability).
3) Any time thought makes the difference between innocence and guilt, we are punishing for thought -
   this is bad.
   a) Can not be 'but for' thought we would not punish, b/c then we would have a lot of innocently
        minded killings.
   b) Thoughts are not sufficient per se, but are a necesssary requirement for criminal liability.
   c) Thoughts must line up with acts to be guilty.
4) Where actors are morally culpable despite an apparent lack of actus reus, and punishment may not
   conflict with voluntary act doctrine.
   a) Innocent external behavior accompanied by criminal disposition. A soldier kills an enemy
        soldier believing that his victim is his own sergeant. A man has sexual intercourse with a woman
        over the age of consent, though he believes that she is underage. Does the voluntary act principle
        or any other principle preclude punishment in these cases?
   b) No external behavior but distinct criminal disposition. An example of this situation occurs
        where a person conceives a criminal plot, but takes no action to further it.



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Criminal (Katz)                                                                            Page 13 of 64
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Mens Rea

Generally, a X is guilty of an offense if X:
  performs a voluntary act (or omits an act that is his legal duty to perform),
  that causes social harm (the actus reus), AND
  with a mens rea (guitly mind).

Mens rea has two meanings:
1) Mens Rea - General Sense
   a) "An unwarrantable act without a vicious will is no crime at all."
   b) Vicious will as blameworthiness entailed in choosing to commit a criminal wrong.
   c) Mens rea requirement satisfied by view that blame and punishment are unjust in absence of
       choice.
2) Mens Rea - Special Sense
   a) Mental state required by defnintion of offense to accompany act that produces/threatens harm.
   b) Real concern is not mental state per se (regret, eagerness, etc.) but with the level of intentionality
       with which D acted: what D knew or should have known when he acted.
   c) Defense to criminal liabilty are often mens reas defenses:

Malice
  Although the term has a more complicated meaning in the context of murder, in most circumstances a
   person acts with “malice” if he intentionally or recklessly causes the social harm prohibited by the
   offense. Term is rarely employed in its non-legal sense, as meaning “ill-will” or spite.

Criminal Negligence
  This is a flagrant and reckless disregard for the safety of others. Reasonable person test applies. The
   test applied, whether it is an act of omission or comission, is what a reasonable person would do
   under like circumstances.


REGINA V. CUNNINGHAM
CB 205
      Rule
          In any statutory definition of a crime, malice requires either:
               An actual intention to do the particular kind of harm that was in fact done; OR
               Recklessness as to whether such harm should occur or not (foreseeing harm might occur
                yet continue and take on that risk of harm).
1) Couple lived next to home appellant was to occupy upon his marriage. Two houses were once one:
   basement divided by loose stone wall. Appellant removed/stole the meter from the gas pipes in his
   basement. He removed the meter for the money inside it. There was a stop tap, but he did not pull it,
   and gas escape into the other home (endangering lives).
2) Reasoning
   a) The word 'maliciously' in a statutory crime postulates foresight of consequence.
   b) At trial, the judge mistakenly instructed jury that 'malicious' meant 'wicked'.




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Criminal (Katz)                                                                           Page 14 of 64
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          Judge effectively told jury that IF they believed appellant acted wickedly - and he clearly did
          i)
          by stealing the meter - THEN they ought to find he acted maliciously in casuing the couple to
          take in the gas (endangering her life).
      ii) Court finds that it should have been left to jury to decide - EVEN IF he did not intend to
          injure Wade - whether appellant foresaw that removal of meter might injure another, and
          removed it in spite of that recognition.
3) Quashed conviction.


REGINA V. FAULKNER
CB 207
      Holding
           A person cannot be found guilty of a felony when he had no intent to commit that felony.
      Rule
           To be a felony, the act must be in fact intentional and willful: intention and will may be
            proven by a showing that accused knew the injury was a probable result of his act and that he
            acted in spite of that knowledge.
1) D was sailor on ship. When to hold to steal rum, lit match in order to see better, lit the rum and
   caught ship on fire (also injured self). Convicted under for arson (maliciously setting ship on fire),
   upon instruction that if jury found he was stealing rum and that fire took place as stated - even though
   he had no intenton of setting ship on fire - he ought to be found guilty of arson.
2) Reasoning. Jury was improperly instructed: they were told to convict D for the accidental
   (unintended) consequence incidental to another felonious act. A person can not be held criminally
   liable for an unprobable consequence of his act, as he could reasonably foresee.
3) Quashed conviciton for arson.


SANTILLANES V. NEW MEXICO
CB 209
       Holding
           Felony punishment requires criminal negligence, and not ordinary civil negligence.
       Rule
           When a criminal statute is silent on whether mens rea element is required, criminal intent is
            presumed as an essential element.
1) Facts. D cut his 7 year-old nephew's neck with a knife during a fight. Defense requested jury
   instruction based on MPC definition of criminal negligence. Trial court refused instruction, and
   instructed jury on civil negligence standard.
2) Reasoning
   a) Implying a civil negligence standard in this case takes the child abuse statute beyond its intended
        scope and criminalizes conduct that is not morally contemptible. Court construes statute as
        aiming to punish conduct that is morally culpable, not merely inadvertent. Thus, the mens rea
        element in the statutue requires showing of criminal - and not ordniary civil - negligence.
3) Court affirmed conviction despite erroneous instruction, b/c the error was harmless.


Distinguishing Civil from Criminal Negligence
   A person who breaches his duty of care to another has acted negligently, as defined by the Hand
    formula above. However, not every breach constitutes a crime. “Criminal negligence” is conduct
    that represents a gross deviation from the standard of reasonable care, i.e., a person is criminally




                                                                                    Johannes de Silentio
Criminal (Katz)                                                                              Page 15 of 64
Spring 1999


     negligent if he takes a substantial and unjustifiable risk of causing the social harm that constitutes the
     offense charged. In other words, criminal negligence exists where the “PL” far outweighs the “B.”


UNITED STATES V. JEWELL
CB 221
      Rule
          Deliberate ignorance and positive knowledge are equally culpable.
          To act knowingly is not necessarily to act only w/ positive knowledge, but also to act with an
           awareness of the high probability of the existence of the fact in question. When this
           awareness of is present, positive knowledge is not required.
1) D was convicted of knowingly transporting marijuana in his car from Mexico to US.
2) Held that D deliberately avoided positive knowledge of the weed in his car.
3) § 2.02(7)
   a) "When knowledge of the extistece of a particular fact is an element of an offense, such
       knowledge is established if a person is aware of a high probability of its existence, UNLESS he
       actually believes that is does not exist."
4) Conscious purpose to disregard. Departure of actual knowledge existed only so far as to encompass
   a calculated effort to avoid the sentence of the statute.



MPC -- Requirements of Culpability

General Requirements of Culpability
   a) "Unless some element of mental culpability is proved with respect to each material element of the
      offense, no valid criminal conviction may be obtained…"
   b) Four levels of culpability (arrranged by degree of culpability, most to least)
      i) Purpose
      ii) Knowledge
      iii) Recklessness
      iv) Negligence
   c) Material Elements
      i) Nature of forbidden conduct
      ii) Attendant cirucmstances                               age in statutory rape law
      iii) Result of conduct                                    death
   d) One level of culpability must be proven with respect to each material element of an offense.
      i) Default Rule. When no mental state is provided in statute, use recklessness (§2.02(3)).



PURPOSELY
 The term “purposely” has two definitions, depending upon whether the material element of the
  offense pertains to a result or conduct, on the one hand, or to an attendant circumstance on the other.
 § 2.02(2)(a)(i): In the context of a result or conduct, a person acts “purposely” if it is his “conscious
  object to engage in conduct of that nature or to cause such a result.” So defined, “purposely” is a
  mental state comparable to one of two common law definitions of “intentional.”
 § 2.02(a)(ii): A person acts “purposely” with respect to attendant circumstances if he “is aware of the
  existence of such circumstances or he believes or hopes that they exist.” For example, if D enters an




                                                                                       Johannes de Silentio
Criminal (Katz)                                                                            Page 16 of 64
Spring 1999


     occupied structure in order to commit a felony in side, he has acted “purposely” with respect to the
     attendant circumstance that the structure was occupied.

KNOWINGLY
 The Code provides two definitions of the term “knowingly,” one that applies to results, and the
  second that pertains to conduct and attendant circumstances.
 § 2.02(2)(b)(ii): A result is “knowingly” caused if the actor “is aware that it is practically certain that
  his conduct will cause such a result. For example, an airplane bomber “knowingly” kills his intended
  victim’s fellow passengers, unless he is so deranged that he is not aware that their deaths are
  practically certain to result.
 § 2.02(2)(b)(i): With “attendant circumstances” and “conduct” elements, one acts “knowingly” if he
  is aware that his conduct is of that nature or that such attendant circumstances exist. For example, if
  D purchased stolen property and was prosecuted for “knowingly receiving stolen property,” D would
  be guilty of the offense if he was aware that it had been stolen.
 “Willful blindness.” § 2.02(7) is a special provision which states that knowledge is established if “a
  person is aware of the high probability of ... the attendant circumstance’s existence, unless he actually
  believes that it does not exist.” Application: United States v. Jewell (9th Cir. 1976). Jewell entered
  the US driving a car in which marijuana had been concealed in a secret compartment. He claimed he
  did not have positive knowledge that the marijuana was present. Held: Willful ignorance is
  equivalent to knowledge in criminal law. To act “knowingly” is not necessarily to act with positive
  knowledge, but also to act with an awareness of the high probability of the existence of the fact in
  question.
 Acting “purposely” versus acting “knowingly.” Part I Hypo: D destroys a hotel to obtain insurance
  money, and the death of guests result. Can the prosecution prove that the death of the guests is a
  means and not a byproduct? If so, then this is an intentional killing done “purposely” and not merely
  “knowingly.” Otherwise it is merely a “knowing” act.
 Acting “purposely” versus acting “knowingly.” Part II. There are cases of intentional killings that do
  not meet the “knowingly” standard. Someone shoots a gun at a victim when there is only one bullet
  in the cylinder, and the victim dies – the killer has acted “purposely” but not “knowingly.”

RECKLESSLY
 Under § 2.02(2)(c), a person acts “recklessly” if he consciously disregards a substantial and
  unjustified risk that the material element exists or will result from his conduct. A risk is “substantial
  and unjustifiable” if considering the nature and purpose of the actor’s conduct and the circumstances
  known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding
  person would observe in the actor’s situation.

NEGLIGENTLY
 Whereas the reckless actor “consciously disregards” the risk, the negligent actor’s risk-taking is
  inadvertent. Under 2.02(2)(d), a person’s conduct is negligent if the actor “should be aware of a
  substantial and unjustifiable risk that the material element exists or will result from his conduct.” The
  definition of “substantial and unjustifiable” is the same as that for “recklessness,” except that the
  term “reasonable person” is substituted for “law-abiding person.”
 Negligence versus recklessness. What if someone knows of a one-in-four risk, but truly believes it is
  an insignificant risk? Katz said that the drafters of the MPC would say that this person is reckless...
  but if this is true, what is the difference between negligence and recklessness? Katz: we are willing
  to dispense with a certain kind of awareness in favor of another.




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Criminal (Katz)                                                                            Page 17 of 64
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MPC 2.02(6) -- CONDITIONAL INTENT
    MPC 2.02(6). When a particular purpose is an element of an offense, the element is established
     although such purpose is conditional, UNLESS the condition negatives the harm or evil sought to be
     prevented by the law defining the offense.
    Witch hypo. Suppose X creates a potion to kill witches, believing they are not people. X then
     administers this potion to four people and one dies (she is a witch). Is he guilty of homicide? That is,
     does X's belief that a witch is not a human being matter?
        Katz: reasonableness of belief is relevant to recklessness or negligence cases only, not
         intentional killings.
        No - he had purpose to kill a witch, a witch is human being. Homicide is killilng a human being.
         Since it was a purposeful killing, X's belief that witches are not people is immaterial.
        So, under 2.02(6), purpose to kill is part of homicide statute, and the condition - the belief that
         witches are not human - does not negative the harm sought to be prevented by the statute.


STATUTORY INTERPRETATION
What elements does a mens rea term modify?
  Identify the material elements of each crime (nature of the conduct, attendant circumstances, and
   result), and determine the mens rea that would be required if the MPC’s general principles of
   interpretation were applicable; e.g., § 2.02(2)-(4).
  First step: § 2.03(3): This provides for instances “when the culpability sufficient to establish a
   material element of an offense is not prescribed by law.” In such cases, the proper mens rea element
   “is established if a person acts purposely, knowingly, or recklessly with respect to each material
   element of the offense.”
  Second step: § 2.02(4): This states “when the law defining an offense prescribes the kind of
   culpability that is sufficient for the commission of an offense, with out distinguishing among the
   material elements thereof, such provision shall apply to all the material elements of the offense,
   unless a contrary purpose plainly appears.”

    Ex: NY burglary statute (CB 213). Statute reads: “a person is guilty of burglary in the second degree
     when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein,
     and when ... the building is a dwelling and the entering or remaining occurs at night.” What is the
     requisite mens rea with respect to entering the building at night? What is the requisite mens rea with
     respect to the dwelling status of the building?
        Step 1: 2.02(3) does not apply b/c the statute states that “knowingly” entering a building with
         “intent” to commit a crime suffices to establish a material element of the offense.
        Step 2: 2.02(4) dictates that we generalize the kind of culpability that is sufficient for the
         commission of an offense to all the material elements of the offense, unless a contrary purpose
         plainly appears. In this case, the statute mentions both “knowledge” and “intent” as requisite
         mens rea. Which term – if any – do we generalize?
        Extra step: Katz said to look at “purposely” as defined in MPC 2.02(2)(a). It seems that the
         MPC “defines away” the distinction between “knowledge” and “intent,” at least with respect to
         attendant circumstances.
        So, in this example, knowledge - prescribe by this statute - must apply to all elements of cimre
         (building, dwelling, nighttime). Must be knowledge of all three.


GENERAL/SPECIFIC INTENT AND MPC
1) Specific Intent. Identifies those actions that must be done with some specified further purpose in
   mind (a purpose to some objective, like burglary or assault w/ intent to kill).


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Criminal (Katz)                                                                            Page 18 of 64
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2) General Intent. Identifies those crimes where it is sufficient to convict when D did what in ordinary
    speech would simply be called an intentional action (like trespass, so long as actor knew that the
    nature of his acts would make him guilty; or simple battery).
3) Lining up examples
                 Specific Intent                 General Intent
                 Burglary                        Trespass
                 Assualt w/ intent to kill       Simple Battery
4) Another usage of specific intent refers to crimes that require actual knowledge (subjective
    awareness). If no actual knowledge requirement, then it would be a general intent crime.
    a) Ex. Statutory rape as general intent crime. To convict, must not prove dirty old man knew girl
        was only 17.
So general intent crime, under MPC, is a crime that makes negligence or recklessness sufficient.



Mistake of Fact

    Witchcraft                  2.02(6)          See "Conditional Intent"
    Prince                      2.04(2)
    Olsen                       213.6(1)
    Feola                       1.13(10)

Mistake of Fact -- MPC § 2.04(1)-(2). Ignorance or Mistake.
1) Ignorance or mistake is a defense when it :
   a) negatives the existence of a state of mind that is essential to the commission of an offense; OR
   b) establishes a state of mind that constitutes a defense under a rule of law relating to defense.
2) Comments
   a) "It is impossible to assert that a crime requiring intention or recklessness can be committed
       although the accused labored under a mistake negativing the requisite intention or recklessness."
       (Glanville Williams)
   b) If negligence is the culpability level for an element of a crime, then mistake is only an excuse if it
       is a reasonable mistake. Reasonableness requirement is not present for elements of crime that
       have culpability levels of purposefully or knowingly.
   c) The question of whether ignorance or mistake are excuse is best focused on specific elements of
       the crime and their attendant culpability levels.

SL Crimes
  A mistake of fact never negates criminal responsibility for violating a SL offense. By definition, a
   SL offense is one that does not require proof of mens rea. So, the absence of any mens rea to negate
   necessarily precludes the use of this defense.


MORAL WRONG DOCTRINE -- PRINCE
 General Rule
    a person who knowingly performs a morally wrong act assumes the risk thereby that the factual
     circumstances are not as they reasonably appear to be and that, therefore, his conduct is not only
     immoral but also illegal.
 Analysis
  a) Was the actor’s mistake of fact reasonable or unreasonable? If it was the latter, the usual mistake
     rule applies, and he may be convicted.



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Criminal (Katz)                                                                           Page 19 of 64
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   b) If mistake was reasonable, look at the facts from the actor’s perspective.
   c) Court must evaluate the morality of the actor’s conduct, based on the facts as the actor believed
       them to be.
Application -- Regina v. Prince                      CB 226                     Bramwell's Concurrence
      D was convicted for taking unmarried girl under 16 out of possession and against will of her
       father, which violated a statute. Jury found that: 1) girl - 14 - told D she was 18, 2) D honestly
       believed her; AND 3) D's belief was reasonable.
      Held that where the crime is per se wrongful act, a reasonable but mistaken belief in a particular
       fact is not a defense.
      Rule. Where a person commits an act that is in itself wrongful, and does not know that his act
       violates a statute, that person is still liable under that statute for (his wrongful act).
      Where a person takes a girl out of her father's possession, not knowing whether she is or is not
       under 16, that he is guilty of a wrong. When be believes, but erroneously, that she is old enough
       for him to do a wrong act with safety, he is also guity.
      Affirmed.


LEGAL WRONG DOCTRINE -- OLSEN
  D is guilty of the more serious criminal offense X, despite a reasonable mistake of fact, if he would be
   guilty of the different, less seroius crime Y, if the situation were as he supposed.
  Ex. Looking at the facts from Olsen’s perspective, he engaged in sex with a minor under 18 years of
   age. Under the legal-wrong doctrine, however, he was convicted of the more serious offense of sex
   with a minor under 14 years of age.
  Criticism. The legal wrong doctrine authorizes punishment based on the harm that an actor caused –
   the actus reus of the greater offense – while it ignores the fact that the actor’s mens rea was at the
   level of the lesser crime.
Application -- People v. Olsen                     CB 230
      Shawn was under 14. D asked to enter trailer, and Shawn refused. Later, entered and D had sex
       with Shawn. Other eivdence suggested that Shawn willingly had sex. Trial court found D guilty
       of statutory rape with someone under 14. D had argued that he thought Shawn was under 18 but
       above 14 (a less serious offense).
      Held that a reasonable mistake as to the victim's age is not a defense to a charge of statutory rape.
      Rule. Where there is strict liability for criminal punishment, a defense of reasonable mistake is
       not available.
      "Mistake of fact relating only to the gravity of an offense will not shield a deliberate offender
       from the full consequences of the wrong actually committed."
      Affirmed conviction.
  Majority view. Mistake as to age, even if reasonable, is not a defense to statutory rape.
  Minority view. Substantial minority of states now allow mistake as a defense.


Material v. Jurisdictional Elements of a Crime
  Culpable mental states need only be proved as to material elements of crime, which does not include
   jurisdiction or venue. However, controversies arise over whether an element that serves jurisdictional
   purposes also serves purposes that require it to be treated as a material element.
  Sometimes issues arise when elements that serve jurisdictional purposes also come into play with
   “material” elements of a crime.
  US v. Feola. Ds attempted to rob several men who presented themselves as drug buyers (they were
   actually federal agents). Ds were charged with assaulting federal officers. Sup Ct held that the
   “federal officer” element of the offense was jurisdictional only and therefore mistake of fact was no
   defense.


                                                                                    Johannes de Silentio
Criminal (Katz)                                                                          Page 20 of 64
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Ignorance of Law

    Generally, Ignorance of the law is no excuse.
    That is - unlke mistake of fact - an actor’s ignorance or mistake of law does not negate the mens rea
     of an offense, b/c neither knowledge nor recklessness or negligence as to whether conduct constitutes
     an offense, or as to the meaning of an offense, is ordinarily an element of that offense.

Exceptions to the general rule
1) Collateral Law                                                    2.04(1)
        i) Smith
2) Express Negation                                                  ???
        i) Taaffe Cheek Liparota Ratzlaf
3) Reasonable Reliance (Official Statement)                          2.04(3)
        i) Marrero Cox Albertini
4) Fair Notice
        i) Lambert
  Reasonable Reliance and Fair Notice are true defenses. That is, D may be excused for violating an
   offense.
  In general, acquitting someone for mistake of law does not mean his subjective interpretation is right -
   that the law means whatever he thinks it does. An acquittal would not contradict conclusion that he
   violated law, just that it is unfair to punish a person for violating law if an ordinary law-abiding
   person would have misunderstood the law in question.

1) Mistake of Law and MPC
   a) MPC § 2.04(1). "Ignorance or mistake as to a matter of fact or law is a defense if it negatives the
      purpose, belief, recklessness or negligence required to establish a material element of the
      offense."
   b) MPC § 2.02(9). "Neither knowledge nor recklessness or negligence as to whether conduct
      constitutes an offense or as to the existence, meaning or application of the law determining the
      elements of an offense is an element of the offense, UNLESS the definition of the offense or the
      Code so provides (that it is an element)."
   c) The principle that ignorance/mistake of law is no excuse has no application when circumstances
      made material by the definition of the offense include a legal element. The principle applies to
      the particular law that sets for the definition of the crime in question. Knowledge of this law is
      not part of the crime, and so ignorance/mistake of that law is not a defense (under Code and
      common law).

Parsing 2.02(9)
   a) Neither knowledge nor recklessness or negligence (collectively, 'awareness') as to whether
       conduct constitutes an offense OR
       i) whether you know what you are doing is wrong
   b) Awareness as to the existence, meaning or application of the law determining the elements of an
       offense
       i) whether you know the law that defines what you are doing as wrong
   c) is an element of such offense,
   d) UNLESS the definition of the offense or the Code so provides.




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Criminal (Katz)                                                                           Page 21 of 64
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COLLATERAL LAW EXCEPTION
 Ignorance of law is an excuse when circumstances made material by definition of offense
  include a legal element.
 The principle applies to the particular law that sets for the definition of the crime in question.
  Knowledge of this law is not part of the crime, and so ignorance/mistake of that law is not a defense
  under MPC or at common law.

Regina v. Smith
CB 262
   a) Guy put panels on floor and walls in his apt. Later, ripped them out. Law makes any fixtures
       installed by T property of L. Statute says guilty if you 'intend to destroy property of another'. He
       did not intend to destroy another's property, he intended to destroy what he believed was his
       property.
   b) Held that b/c he thought he was destroying his own property, he cannot be guilty of destroying
       another's property.
   c) Rule. Ignorance of a civl law collateral to the criminal law under which X is convicted is an
       exculse.


EXPRESS NEGATION EXCEPTION

Regina v. Taaffe
CB 264
  D thought he was carrying money. D though carry money was illegal. It was not. In fact, he was
   carrying drugs. He did not know this. Innocent.
  The mens rea is knowingly importing prohibited goods. D is to be judged on the facts as he
   believed them to be, and under them (carrying money) no offense was committed.
  Note: D would be guilty under Prince for his guilty mind.

Cheek v. United States
CB 265
  Facts
   a) D was convicted for felony and misdemeanor related to his failure to pay taxes. Both the statutes
       had a willfulness requirement. At trial, D argued as a defense that, based on information he
       received from an anti-tax group, he believed that: 1) wages were not income, 2) he was not a
       taxpayer within meaning of code, and 3) he believed tax laws were unconstitutional. D was
       convicted.
  Held:
   a) Neither a good-faith misunderstanding of the law nor a good-faith belief that one is not violating
       the law must be objectively reasonable to negate a statutory willfulness requirement.
   b) D's view about the validity of a statute is not relevant to the issue of willfulness.
  Reasoning
   a) The standard for the statutory willfulness requirement in tax cases is the "voluntary, intentional
       violation of a known legal duty."
   b) To prove willfulness, government must prove that law imposed a duty on D, that D knew of the
       duty, and that he voluntarily and intentionally violated that duty. This showing is necessary b/c
       one cannot be aware of a legal duty and also be ignorant of it, misunderstand the law, or believe
       that the duty does not exist.
   c) D's claim that a good-faith belief that income tax law is unconstitutional and thus could not
       legally impose any duty upon him of which he should have been aware is unsound. Awareness


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Criminal (Katz)                                                                            Page 22 of 64
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         of unconstitutionality indicates full knowledge of the provisions at issue and a subsequent
         conclusion that those provisions are invalid and unenforceable.
    Dicta. The more unreasonable the belief, the more likely the jury will find that D merely disagreed
     with known legal duties and will thus find government has carried burden of proving knowledge.
    Remanded

Liparota v. U.S.
CB 268
  Ruling on food stamp fraud statute. Users subject to find for knowingly using stamps in stores that
   are not in the program or charge higher than "prevailing prices."
  Held that fed must prove that D knew of the regulation that his conduct violated. To interpret the
   statute otherwise would criminalize a broad range of otherwise innocent conduct; e.g., purchasing
   from a store that charged higher than "prevailing prices."

U.S. v. Ratzlaff
CB 270
  D structured a transaction to pay a casino debt without triggering bank reporting requirement. D knew
   there was a statute, but did not know that structuring violated it. Statute said that it was a crime to
   structure transactions to avoid the statute. Held that prosecution must prove both knowledge of
   bank’s reporting requirement and knowledge that structuring was a criminal offense.


REASONABLE RELIANCE EXCEPTION
 MPC 2.04(3)(b). A belief that conduct does not legally constitute an offense is a defense to a
  prosecution for that offense…when person acts in reasonable reliance upon an official statement of
  the law, afterward determined to be invalid or erroneous contained in:
          (1) A statute or other enactment
          (2) A judicial decision, opinion, or judgment
          (3) An administrative order or grant of permission
          (4) An official interpretation or the public officer or body charged by law with responsibility
               for interpretation, administration or enforcement of the law defining the offense.
 Comment. Defense afforded by this section would normally be available to D only once. After a
  warning he does not have a reasonable basis for belief that what he did is legal.

People v. Marrero
CB 257
  Held that D's personal misunderstanding of the statue does not excuse his criminal conduct.
  Rule. The "official statement" mistake of law defense does not include people's misinterpretation of
   statutes: this defense only covers reliance on a statute that in fact authorized the conduct in question.
  D, a federal corrections officer, was arrested for unlicensed possession of a loaded pistol, in violation
   of NY penal law. Statute exempted peace officers, but meant to apply only to state officers. D was
   tried and convicted, court rejected argument that he reasonably believed exemption applied to him.
  Reasoning
       People's erroneous interpretations of statutes are outside the mistake of law defense, and are not a
        defense to criminal liability. Policy: if this were accepted, the "official statement" exception to
        the mistake of law rule would swallow the rule itself. It would allow people to escape criminal
        liability b/c their subjective understanding of law was wrong. It would then work for both good-
        faith mistaken Ds and for wrong-minded individuals looking for a defense.
       Decision based on MPC § 2.04 approach to mistake of law.
  Affirmed (denial of instruction as D argued)



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Criminal (Katz)                                                                              Page 23 of 64
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Cox v. Louisiana
     b) Rule. If a statute has a vague meaning, then a public official may interpret to have a certain
        meaning for the concerned party. That party may not be later punished for reliance on that
        determination.
     c) In this case, a sheriff told civil rights protestors that 'near' (the vague or imprecise term) meant
        across the street from the courthouse. Later conviction under the statute defining near was
        invalidated on due process grounds.

United States v. Albertini
CB 270
1) Fact Timeline
   a) Albertini 1. D was convicted of violating a bar order commanding him not to protest on a naval
       base. Convicted under a federal statute, but CCA reversed on FA grounds.
   b) Albertini 2. D protested a lot again on the base, which violated another bar order. Prosecuted
       again. This is b/f Sup Ct granted cert on Albertini 1.
   c) Sup Ct reversed CCA in Albertini I - FA did not preclude conviction.
   d) D prosecuted for Albertin 2, and obtained conviction.
   e) D appealed conviction for second set of protests, arguing that due process precluded retroactive
       application of Sup Ct's decision in Albertini I.
2) Held that the reasonable reliance exception to the mistake of law doctrine applies to court decisions.
3) Reasoning
   a) D effectively obtained a declaratory judgment from this court that the actions in which he
       engaged were lawful. DP means that a person who holds the latest, controlling court opinion
       declaring his activities constitutionally protected should be able to depend on that ruling until it is
       reversed, OR at least until cert is granted.
   b) D acted during a windows of time when he reasonably believed his acts were protected under
       Albertini I. Otherwise, a kind of 'entrapment' by government would be sanctioned - conviction
       for acts that government has told D are protected by FA against prosecution.
4) Note that Court did not discuss whether D would have been justified in relying upon Albertini I in
   period between granting of cert and b/f it was reversed.
5) Reversed conviction


FAIR NOTICE EXCEPTION
  MPC 2.04(3)(a)
     A belief that conduct does not legally constitute an offense is a defense to a prosecution for that
      offense based upon such conduct when:
         Subsection A. The statute or other enactment defining the offense: 1) is not know to the actor
          AND 2) has not been published or otherwise reasonably made available prior to the conduct
          alleged.
         Subsection B. (Reasonable Reliance Exception)
     Comment. Defense afforded by this section would normally be available to D only once. After a
      warning he does not have a reasonable basis for belief that what he did is legal.

Lambert v. California
CB 274
1) Appellant convicted under CA statute requiring registration of convicts who have been convicted of
   felonies in state, or of crimes in other states that would be felonies if committed in CA.
2) Held that where a person did not know of the duty to register and where there was no proof of the
   probability of such knowledge, he may not be convicted consistently with due process.



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Criminal (Katz)                                                                          Page 24 of 64
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3) Rule. Actual knowledge of the duty to register or proof of the probability of such knowledge and
   subsequent failure to comply are necessary b/f a conviction under the ordinance can stand.
4) Reasoning
   a) The statute is problematic b/c people are convicted b/c of their failure to do something of which
       they have no notice (passivity). The severity lies in the absence of an opportunity either to avoid
       the consequences of the law or to defend any prosecution brought under it.
   b) Notice is a requirement of DP, which gives citizen the chance to defend against charges. On first
       becoming aware of her duty register, she was given no opportunity to register. She could only
       suffer consequences of failure to register - conviction and punishment.
5) Reversed conviction
  Note. Lambert would apply to a situation in which the statute was published, but the prohibited
   conduct itself would not alert an actor to the need to investigate whether there was a relevant
   statute on the books.
  Three concerns to prevent exception from swallowing up the rule:
   a) statute punished an omission;
   b) duty was imposed based on status, not activity
   c) offense was wrong only because it was prohibited (malum prohibitum)
   d) Notice is part of DP and is appropriate where person, wholly unaware of wrongdoing, is brought
       b/f court in criminal case.



Strict Liability
    Actus reus, no mens rea.

SL at Common Law
      Mistake of age is not a defense in sex offenses with minors
      Law of homicide - felony-murder and misdemeanor-manslaughter rules

EARLY CASES
United States v. Balint                          CB 235
  Ds demurred on ground that indicment did not charge that they knew they were selling prohibited
   drugs. Held that such knowledge was not required by the statute.
  In prohibition or punishment of particular acts, state may - for public policy - provide that people
   commit those acts at their peril and may not plea in defense good faith or ignorance. Statutte
   emphasizes social betterment rather than punishment of crimes as wrong.
United States v. Dotter weich                    CB 236
  D's company repackaged other companies' drugs for resale. Twice the drugs were improperly
   labeled. D convicted under Food and Drugs Act, Court affirmed.
  Act is intended to protect people from dangerous food and drugs: in an idustrial age they cannot
   protect themselves.
  D's prosecution is based upon legislation that uses penalties as a means of regulation: this type of
   legislation dispenses with requirement of criminal conduct (awareness of wrongdoing). Places
   burden on people like D in interest of larger good. This is a hardship for D, but compared to the
   hardship to public if there were no such statute, it is preferable that D bear the hardship.


PEOPLE V. CEBALLOS
CB 846




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Criminal (Katz)                                                                            Page 25 of 64
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1) D lived in a garage, and to prevent another robbery, he set up a trap gun to fire at the door when
   anyone came in. Two unarmed kids entered, and one was shot in the face. Kid who was shot testified
   that he was uncertain whether, upon gaining entry, he would steal anything. D was convicted of
   assault with a deadly weapon.
2) Held that a person may not use a trap gun to protect his property while he is away.
3) Rule. Deadly force is never permitted in defense of property, even if it is the only means available to
   prevent the loss. X cannot do automatically (thru setting up a spring gun) what X cannot do himself.
4) Reasoning
   a) The shooting is not justified under state law b/c they are only justified when one is protecting his
        property from someone who manifestly intended to commit a felony." Kid said he was not sure if
        he was going to steal anything.
   b) Also, felonies that "do not reasonably create a fear of great bodily harm" provide no cause for
        such shootings.
5) Affirmed conviction.

MPC - you can never use a trap gun that is intended or known to cause death or serious bodily injury.
Common Law - if the intrusion is, in fact, such that a person - were he present - would be justified in
taking life or infiicting bodily harm with his own hands.


MORRISSETTE V. UNITED STATES
CB 237
  D is junk dealer who entered bombing range, took spent bomb casings, flattened them, and sold them
   to junkyard. Convicted of violating a SL federal statute that made it a crime to knowingly convert
   government property.
  Held that a person cannot be held criminally responsible on a strict liability basis for a codified crime
   that at common law required proof of guilty mind.
  Rule. Crimes - like stealing and larceny - that required a guilty mind at common law still require a
   guilty mind when codified in federal statutes.
  Reasoning
       Congress ommitted an express intent requirement in the statute presented in this case b/c it knew
        of the unbroken judicial practice of holding intent inherent in this class of offense.
       Balint is good precedent on SL for regulatory crimes, but is not acceptable authority for
        eliminating intent from offenses incorporated from common law.
       The government's position - that intent is not a required element for this type of offense - would
        have the following detrimental effects:
            Easing prosecutorial burden for getting conviction
            Strip D of enjoyed protections at common law from innocnece of evil purpose
            Circumscribe freedom of juries.
       When the statute does not mention a mental state, a mens rea requirement will be imputed.
  Reversed conviction.

    Recklessness is default mental position when a statute does not mention a mental state requirement.


STATE V. GUMINGA
CB 244
  D, owner of restaurant, was charged under statute statute imposing vicarious criminal liability for
   serving alcohol to a minor - waitress had served minor involved in an undercover police operation.




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Criminal (Katz)                                                                              Page 26 of 64
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   A conviction under this statute would also subjected him to a harsher punishment if he were later
   convicted of a felony.
  Held that the state statute, on its face, violates D's right to due process of law under 14th and
   analgous state provisions. Only civil penalties would be constitutional.
  Rule.
      Where an offense is a true crime - where it involves moral delinquency or is punishable by
       imprisionment or serious penalty - vicarious liability must be repudiated as a foundation for
       criminal liability.
      No one can be convicted of a crime punishable by imprisionment for an act he did not commit,
       did not have knowledge of, or give express/implied consent to the commission thereof.
  Reasoning
      Due process analysis requires balancing public interest against private interest. In this case,
       private outweighs public. While is provides additional detereence to violation of liquor laws,
       affects personal liberty, damages his reputation, and gives rise to other future disabilities arising
       from criminal prosecution for an act that D did either commit or ratify. Fines or license
       suspension has these benefits without the negative ramifications.
Note on Vicarious SL
  At least one state - NH - has held that strict liability in the parent/child relationship is unconstitutional
   (State v. Akers, CB 247). Many states now have statutes that provide jail sentences for parents whose
   childern are persistently truant.


STATE V. BAKER
CB 247
  D appeals conviction for speeding: he argues that his cruise control got stuck in accelerate, which
   caused his speeding.
  Held that malfunctioning of cruise control, which led to violation of the statute, is not a defense to SL
   crime of speeding. Engaging the cruise control was a voluntary act by D.
  Rule. An unforeseen occurrence or circumstnace that is not caused by the person and that he could
   not prevent is a valid defense to a SL crime.
  Malfunctioning brakes or throttle would be a defense to an SL crime. However, engaging the cruise
   control requires a voluntary act by D. Thus, D was an agent in causing the act of speeding.
  Affirmed conviction.
Note - Related Area
  State v. Miller (CB 250). Court affirmed DWI conviction of D who was not permitted to present
   eivdnece that he did not know someone laced his drink with alcohol. Court said that statute created
   SL with respect to presence of alcohol in the body.


THE SL DEBATE
Regina v. City of Sault Ste. Marie                        CB 250
1) Arguments for absolute liability
   a) Absolute liability is the most efificient and effective way of ensuring complaincee with minor
       regulatory legistaltion. The social ends to be achieved are important enough to overrid
       unfortunate consequence of punishing people who are not morally blameworthy. Justifications
       for absolute liability in public welfare offenses:
       i) Incentive to comply with the law and provide higher standard of care.
       ii) Administrative Effiency. Proof of faulth is too great a burden in time/money.
2) Arguments against absolute liability
   a) It violates fundamental principles of penal liability.



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Criminal (Katz)                                                                               Page 27 of 64
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   b) There is no evidence that a higher standard of care results from absolute liability. Why do more
        than required if you know that - no matter how much you do - you will be liable no matter what?
   c) People convic People convicted suffered the 'opprobrium of conviction'.
3) The problem is a false dilema between full mens rea and absolute liability. There is new authority
   that suggests that where an offense does not require full mens rea, it is a good defense for D to prove
   he was not negligent.
   a) This rests on assumption that D oculd have avoided prima facie offense through exercise of
        reasonable care, and is given a chance to establish that he did exercise such care.
   b) Prosecution must prove beyond reasonable doubt D committed the act, and D must only show "on
        the balance of probabilities" that he has a defense of reasonable care.
  Suggests three categories of offenses
       Mens rea required and must be proven by prosecution (by inference or evidence)
           Criminal offenses - "wilfully, with intent, knowingly, intentionally
       No mens reas required, act is prima facie offense, D has burden to prove reasonable care as an
        excuse
       Absolute liability
           To determine if a crime fits here, look to:
               Overall regulatory pattern of legislature
               Subject matter of legistlation
               Importance of penalty
               Precision of statutory language
  Canada has declared absolute liability uncons.


ZR-4 HYPO
  Statute read: “ZR-4 levels shall not exceed level X... violation is a felony.” ZR-4 is supposed to be a
   chemical that poses only slight risk if it exceeds level X. One day, the level exceeds X. Is this a SL
   offense? No mental state is mentioned, but this does not always mean we are dealing with a SL
   statute. Look to Morissette and said ask three questions to determine if this should be an SL crime:
   a) Does it resemble a common law offense?
       i) If no, this is strong evidence that it is a SL offense. In this case, there is little reason to believe
            that this resembles a common law offense.
   b) What is the severity of punishment? If the punishment isn’t that severe, this is evidence that it is a
       SL offense.
   c) What is the ease of compliance? If it’s fairly easy to comply with the statute then this is evidence
       that it is a SL offense.

The Porn/FA Exception to SL?
  United States v. United State District Court. D's prosecuted D for making a porno featuring 16-year
   old Traci Lords. Charged with violating a federal statute that explicitly prohibited underage porn.
  Held that Ds had affirmative defense if they establish by clear and convincing evidence that they did
   not know - and could not reasonably have learned, that Traci was under 18.
  Otherwise, FA guarantee of free expression would be impaired - there would be no safe way to
   engage even in lawful expression.


MPC 2.05
 Attack on SL in penal law, whenever the offense carries possiblity of criminal conviction, for which a
  sentence of probation or imprisonment may be imposed.




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Criminal (Katz)                                                                            Page 28 of 64
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    When conviction rests upon SL basis, the grade of the offense is reudced to a violation, which is not a
     crime and under §§ 1.04(5) and 6.02(4) may result in no sentence other than a fine, or fine and
     forefeiture, or other civil penalty.
    Applies to all regulatory crimes and all crimes defined in penal code itself. This is necessary to
     effectuate principle of no criminality, probation or imprisionment for SL offenses.
    Crime does and should mean condmenation - no court should have to pass that judgment unless it can
     declare that D's act was culpable.




The Mens Rea of Homicide

Introduction
General definitions - Common Law and MPC
  Murder. Unlawful killing with malice aforethought (English definition, some states definition)
MPC § 210.1 Criminal Homicide
  Guilt if purposely, knowingly, recklessly or negligently causes the death of another human being.
  Categories are murder, manslaughter, or negligent homicide
      § 210.2 Murder                                   (felony in first degree, permits death sentence)
      § 210.3 Manslaughter                             (felony in second degree)
      § 210.4 Negligent Homicide                       (felony in third degree)


Premeditation-Deliberation Formula

1) The Legislation Grading of Intended Killings
   a) The first division of murder into degree was in this statute:
      i) "All murder…by willful, deliberate and premeditated killing, or murder-felony shall be
           deemed m1. All other kinds are m2."
      ii) On its face, the statute may suggest a difference between premed/delib and intent - where m1
           is premed and m2 is only intent. This is actually a false distinction: premed/delib is
           intentional.
      iii) This is the statute in Carrol.
2) Three views on "wilful, delib, premed":
   a) Most jurisdix understand "wilful, delib, premed" to mean the division of murder into degress is
      meant to separate the most heinous form of murder, which deserve the most severe penalties,
      from those which although intentional lack the gravity associated with m1.
   b) Some states treat "wilful, delib, premed"as independent elements of m1. Thus, a line is drawn
      between spur-of-moment intention killing and cold-blooded killing (careful reflection).
   c) A few courts expressly treat the terms with little import - it is a single mental state amounting to
      the intent to kill.
3) "Deliberate"
   a) This term bring to m1 idea that most heinous killings are those that are cold-blooded.
   b) It is possible to premeditate without deliberating. Premed is generally quantity, but delib is the
      quality of the thought.




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Criminal (Katz)                                                                          Page 29 of 64
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COMMONWEALTH V. CARROL
CB 394
  Facts
      D was found guilty of first degree muder and sentenced to life for killing his wife after a
       prolonged argument. His wife was mentally deranged and abused their children and yelled at him
       alot. They argued b/f going to bed and he shot her. D said he felt like was not acting to shot her.
       Convicted of m1.
  Held that evidence does not support D's argument that his conviction be reduced to second degree
   murder because the homicide was not premeditated or intentional.
  Reasoning
      Considers premed/delib the same as forming a specific intent to kill. Whether the premeditation
       and the fatal act were within a brief or long space of time is immaterial if the killing was in fact
       intentional, willful, deliberate, and premeditated.
      The evidence shows that D - extremely provoked by his wife - deliberately, willfully and in a
       premediated fashion grabbed the gun off the headboard and shot her.
      If D's conviction were change to second degree murder, then emotional impulse would become an
       excuse for first degree murder. Every homicide involves emotional impulse.
  Affirmed m1 conviction.


PEOPLE V. ANDERSON
CB 399
  Facts
      D convicted of m1 and sentenced to death for stabbing 10-year old girl 60 times while under the
       influence (would have failed driving sobriety test).
  Held that evidence was insufficient to support m1 conviction based on premed/delib theory.
  Reasoning
      There was no evidence to support that D intended to kill girl, and the manner of killing did not
       show that the wounds were deliberately calculated to result in death.
      Departure from Carrol. M1/m2 distinction means nothing if the required reflection was no
       more than forming a specific intent.
      M1 verdict under premed/delib theory is proper ONLY IF the slayer killed as a result of careful
       thought - like he made plan and carried it out coolly.
  Court reduced conviction from m1 to m2, and so modified, affirmed.


Juxtaposition of Carrol and Anderson
      Carrol                  affirmed M1
      Anderson                reversed M1, changed to M2
  Anderson intuitively seems like a more heinous crime. Why difference in disposition?
      Carrol                  premed is irrelevant to culpability
      Anderson                premed is relevant to culpability
  MPC discounts premeditation - the above juxtaposition shows why.
  Premed v. Spontaneous but intentional
      Which is worse depends the nature of each specific case.
          Premed              uncertainty      or      deliberate planning
          Spontaneity         passion          or      clearly formed intent
  Counter to premed doctrine is mercy killing example.




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Criminal (Katz)                                                                         Page 30 of 64
Spring 1999


Notes
  Majority View. Courts adopt Carrol instead of Anderson and say premed is basically formation of a
   specific intent to kill, but reject notion that "no time is too short." There must be "some degree of
   preexisting reflection."
      Premed/delib can take place in time it takes to pull trigger. (Young v. State)
  In Commonwealth v. O'Searo, the court made the following observations:
      Distinction between m1 and m2 is the presence of a specific intent to kill. This distinction does
       not depend upon the degree of reflection.
      Requirement of premed/delib is met whenver there is a conscoius purpose to bring about death.
  So, there is really no differnce between premed/delib and specific intent to kill. (State v.
   Schrader)
  Courts that follow Anderson insist that having chance to deliberate is not evidence that D did
   deliberate. Showing of deliberation is necessary for premed (b/c you can premed w/o delib).
   Otherwise, any form of killing taking more than a moment would result in finding of premed and thus
   lead to m1. (State v. Bingham)


Provocation


THE NATURE OF THE REQUIRED PROVOCATION

    Excuse - understand why X killed Y, but Y did not deserve to die.
    Justification - Y deserved to die b/c of the provoking behavior.
     a) Provocation Definitions.
         i) PA Statute on Vol Man (common law). CB 390
              (1) Partial justification, partial excuse.
     b) MPC § 210.3
         i) Partial excuse, no justification.
     c) Two different ways to get a slight reduction in guilt (vol man instead of murder). Provocation is
         not a full justification - that is self-defense, which is exculpatory.

Common Law
 Traditional categories in which provocation is recognized to mitigate murder to manslaughter:
    extreme assault or battery upon D
    mutual combat
    illegal arrest
    injury or serious abuse of a close relative
    sudden discovery of spouse's adultery
 Common Law Defense of provocation contains four elements:
    actor must have acted in heat of passion (not necessarily just anger);
    the passion must have been the result of adequate provocation;
    the actor must not have had a reasonable opportunity to cool off; AND
    there must be a causal link between the provoaction, the passion, and the homicide.

Modern View
 What constitutes adequate provocation should be left to the jury to decide.




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Criminal (Katz)                                                                         Page 31 of 64
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GIROUARD V. STATE
CB 411
1) Held that mere words were not sufficient provocation to cause a reasonable man to stab another and
   thus permit mitigation to manslaughter. Majority View.
2) Facts
   a) D had bad relationship with wife - in one argument she graphically insulted his sexual ability and
       said she did not love him. D stabbed her 19 times and then slit his own wrists, but not enough to
       kill himself. Cops at scene said he was unconcerned about his health and was regretting what he
       did. Convicted of m2.
3) Previous cases in many jurisdix have held that words alone are not adequate provocation to incite
   reasonable person to use deadly force.


Cooling Time
  Generally, too long a lapse of time between provocation and the act of killing will render provocation
   inadequate, and will deprive D of right to instruction on voluntary manslaughter. However, this is not
   a hard and fast rule.
  Majority View. Adequcacy of provocation (for mitigation to manslaugher) is an evidentiary
   consideration to be evaluated by jury under all circumstances.
      Example - People v . Berry. D waited for victim 20 hours b/f killing her. D was entitled to man
       instruction, b/c jury could find D's heat of passion resulted from prior course of provocative
       conduct by victim: thus, the wait aggravated rather than cooled the D's agitation.
  Rekindling is the minority view. That an act right b/f killing reignites provocation of earlier act.
      Example of majority view. State v. Gounagias. D was sodomized two weeks b/f killing his rapist,
       but was repeatedly mocked during that time. Murder conviction affirmed on appeal - no
       rekindling.

Victims other than provoker
   Majority View. Where someone has been provoked and mistakenly kills someone he thought was the
    provoker, a vol man instruction is required (State v. Mauricio).
   There is no provocation defense to charges of murdering nonprovoking relatives or bystanders

    Indeterminate area. Defendants who elicit provocative conduct and then act upon the provocation.
     They may or may not be entitled vol man instruction.


MAHER V. PEOPLE
CB 416
1) Held that Jury should be permitted to consider manslaughter issue whenver evidence shows any
   circumstances - whether conduct or words alone - that might cause a reasonable person to lose self-
   control. Minority View.
2) Facts
   a) D killed man who believed had adulterous affair with wife that on morning of murder. He saw
       them go into woods together and was told that they had sex by another person.
3) Dissent Majority View.
   a) Evidence of provocation should only be considered when the cause of the provocation occurred in
       presence of D. Should not allow provocation where the person only heard of the conduct or
       conceived of the conduct, as in this case.
4) Disposition.




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     a) Changed conviction from murder to manslaughter (evidence of provoation, if allowed trial, would
        have permitted reasonable jury to conclude it was manslaughter).



THE OBJECTIVITY OF THE STANDARD
    Common Law and MPC require that D's response to the disturbing circumstances be reasonable.


DIRECTOR OF PUBLIC PROSECUTIONS V. CAMPLIN
CB 427
Defines the "reasonable person" to whom the provoked D is compared
   Reasonable man standard should be explained to jury as a person:
       having power of self-control expected of an ordinary person of the sex and age of the accused,
        AND
       sharing the relevant characteristics of the accused (those that the jury thinks would affect the
        gravity of the provocation);
   Explain that question is not merely whether the reasonable man would be provoked in similar
    circumstances, but whether reasonable man would react to external provocation as the accused did.
   An outcome of this decision is that words alone might be sufficient for mitigation. The gravity of
    verbal provocation may depend on characteristics of person to whom insult is addressed (race,
    physical handicap, shameful incident).

Notes
  Camplin incorporates the view expressed in MPC § 210.3(1)(b) (Manslaughter):
     "A criminal homicide is manslaughter when a homicide which would otherwise be murder is
      committed under the influence of extreme mental or emotional disturbance for which there is
      reasonble explanation or excuse.
     The reasonableness of such explanation or excuse shall be determined from the viewpoint of a
      person in the actor's situation under the circumstances as he believes them to be."
     Commentary. "Situation" includes emotional state, physical handicap, etc.; but not idiosynchratic
      moral values. "Situation" also encompasses a gray area that permits differentiation from case to
      case to determine whether aspects of an actor's situation are material for grading the offense.
     The question is whether the actor's loss of self-control can be understood in terms that arouse
      sympathy in the ordinary citizen. This question is left to jury in each separate case.


DIMINISHED RESPONSIBILITY
  Entirely subjective - mental disorder or emotional instability as a basis for partially excusing conduct.
   This achieves closer relation between criminal liability and moral guilt.
  However, DR - in achiveing the closer relation - has costs.
      By judging person on his own terms, decreases incentive to behave as if he were normal.
      Blurs message of law that there a minimum standard of conduct that all members of society must
       follow.
      Undercuts social purpose of condemnation by affixing condemnation in relativist fashion.
  MPC rejects DR as a defense. However, it may fall under "emotional disturbance" of the
   manslaughter section, which is distinct from external provoking events.
  There are certain mental conditions that do not preclude moral depravity necessary to convict a
   homicide. These are not part of the actor's "situation" (e.g., temper). Whether the condition is
   material to grading the offense is determined case-by-case.


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Criminal (Katz)                                                                             Page 33 of 64
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Felony-Murder Rule

    Mens rea of underlying felony resulting in death provides basis for murder conviction without proof
     of malice.
    Authorizies strict liability for a death that results from a felony that is intentionally committed. Mens
     rea requirement is met by the requirement for the underlying felony.
    Causation Requirement. Act must be proximate cause and cause-in-fact.
        Proximate causation means harm was natrual and probable consequence, or foreseeable
         consequence, of criminal act. However, proximate cause can exist even though harm was
         unforeseeable (Stamp).

    REJECTED BY MPC. Instead, MPC replaces fel-mur by creating a presumption of recklessness and
     indifference findings necessary for murder charge.
        § 210.2(b). "Criminal homicide constitutes murder when it is committed recklessly under
         circumstances manifesting extreme indifference to the value of human life. Such
         reklcessnesss and indifference are presumed if: the actor is engaged in or is an accomplice of, or
         an attempt to commit, or flight after committing or attempting to commit robbery, rape, deviate
         sexual intercouse, arson, burglary, kidnapping, and felonious ecape."
        MPC insistence on finding of recklessness and indifference is a rejection of SL inherent in fel-
         mur rule. The presumption of those findings has the same pragmatic result as the fel-mur rule, so
         the ALI was making a principled distinction in rejecting fel-mur.

    Despite MPC, fel-mur exists in all states except NH.
    States that have categories of felonies have modified fel-mur so that it applies only to certain
     felonies. Done three principal ways:
        Dangerous felonies (arson rape burglary kidnapping robbery) are the only ones on which m1fel-
         mur conviction can be obtained. Nondesignated felonies still trigger fel-mur, but offense will
         only be m2.
        Dangerous felonies are only felonies on which fel-mur conviction can be obtained.
         Nondesignated felonies are only basis for manslaughter conviction OR cannot be basis for
         homicide conviction.
        Killing in course of felony that is otherwise culpable b/f it may constitute murder (e.g, D
         recklessly caused death of victim).

Effect on prosecution. In each case, ask if D could be convicted of homicide w/o fel-mur.
    a) Does not generate a different outome in:
        i) Serne               468
        ii) Pickepocket hypo 473
    b) Generates different outcome in
        i) Stamp               471
        ii) Phillips           481


REGINA V. SERNE
CB 468
  D set fire to house and shop (arson), which killed his own son. D indicted for murder.




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Criminal (Katz)                                                                             Page 34 of 64
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    Court held that any act known to be dangerous to life and likely in itself to cause death, done for the
     purpose of committing a felony that causes death, should be murder.


PEOPLE V. STAMP
CB 471
  D robbed a man, was traumatized by incident. Man collapsed and died of heart attack. Man was fat,
   under pressure from work, and did not lead a healthy life.
  Rule
      The robber takes the victim as he finds him: fel-mur is not limited to those deaths that are
       foreseeable. Rather a felon is held SL for all killing commited by him or his accomplices in
       course of the felony.
      As long as the homicide is the direct causal result of the felony, fel-mur applies wh1ether or not
       death was a natural/probable consequence of felony. This is true so long as victim's condition
       was not the only substantial factor in hastening his death.

Justifications for Fel-Mur?
   Differences in result must be taken into account as part of actus reus if classfication and grading are
    to be rational. Fel-mur reflects a societal judgment that an intentionally committed robbery that
    causes death is qualitatively more serious than an identical robbery that does not.
   Fel-mur is a simple, enforceable, and widely known principle that is likely to result in deterrence.
   Counterpoint. Data that suggets only .14% of felonies that qualify under fel-mur have deaths
    associated with them. So what are you deterring?
   Macaulay’s Criticism.
       No man can so conduct himself as to make it absolutely certain that he shall not be so unfortunate
        as to cause the death of a fellow creature.
       Pick pocketers. You pick a pocket, and a fat man dies from a heart attack. You picket a pocket,
        and a fat man lives. To treat these cases differently is as capricious as rolling the dice.
   Retributivist
       Fel-mur is hard to justify on this view. Procuding death w/o accompanying culpability of
        murderer does not seem to require punishment deserved by a murderer.
       However, intuition for fel-mur is on this view. Divide what happened in conduct that occurred
        AND the result. From this, fel-mur is good b/c the outcome is the same regardless of the conduct
        that occurred. Punishing for outcome.
            Katz says this is faulty b/c of accidental or incidiental killing cases.
            Even if you try to parse the death into these two parts, the mental outcome is different.


STATUTORY REFORM OF FELONY-MURDER RULE

    Minority view. So killing that was related to arson can not become murder without a showing of
     malice. People v. Aaron, and decisions like it, abolish fel-mur as a way to establish malice.
    Majority view. Subsequent re-enactments of homicide statute demonstrated an intent to codify fel-
     mur rule. Fel-mur cannot be abolished by common law interp.

People v. Aaron                            (MI Sup Ct 1980)         CB 479
  Fel-mur does not estabilsh malice. It is no longer acceptable to equate intent to commit a felony with
   an intent to kill or to do great bodily harm, or to disregard willfully the likelihood of behavior is to
   cause death or great bodily harm.




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Criminal (Katz)                                                                             Page 35 of 64
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    Held that in order to convict a D of murder, it must be shown that D acted with intent to kill or to
     inflict great bodily harm, OR with a reckless disregard of likelihood that his behavior has a natural
     tendency to cause death or great bodily harm.


LIMITATIONS ON FELONY MURDER RULE
    Inherently Dangerous Felony
    Merger (felonies independent of the homicide)


THE INHERENTLY DANGEROUS-FELONY LIMITATION

People v. Phillips
CB 481
  Deceased had cancer in eye. Medical doctors said only chance to save/prolong life was removal of
   eye. D, chiropractor, said that he could cure deceased w/o surgery. Decease died six months after D's
   treatment. D convicted of m2 under fel-mur rule. The jury instruction on fel-mur reflected
   prosecution's theory that D's conduct amounted to grand theft by false pretenses. Jury convicted
   based on finding that D committed felony of grand theft.
  Court held that jury instruction on fel-mur b/c the underlying felony of grand theft is not - in the
   abstract - inherenly dangerous to life, which is a necessary condition for application of fel-mur.
  Rule
      Only such felonies as are in themselves 'inherently dangerous to human life' can support the
       application of the felony-murder rule. When assessing peril to human life inherent in any felony,
       look to elements of that felony in the abstract, not in the particular facts of the case.
  Reasoning
   a) Three instructions to jury
       i) Proximiate cause was reckless act
       ii) Circumstances of proximate cause show an abandoned and malignant heart
       iii) Grand Theft
   b) Argument by prosecution was that:
       i) Instruction 3 presumes a finding of 1 and 2, so IF jury decide to convict based on both
            instructions 1 and 2, THEN jury did not need to convict on 3 for fel-mur conviction.
   c) Response by court is that, asssuming jury convicted by 3, you cannot assume 1 and 2 were also
       found by jury. Grand theft does not mean recklessness.
       i) So he was guilty of grand theft - he knew that the treatment was bogus - but kid was was
            doomed to die anyway: he though his treatment was no worse than the opportunity forgone
            (medical treatment) by paying for his services. He did not think he was doing any harm
            (anything worse than medical treatment), thus no recklessnesss, no homicide.
       ii) So convicting on instruction 3 does not mean intsructions 1 and 2 were necessarily believed
            by jury when they conviction. 3 is indepednet of them and does not embody them. Can
            convict for grand theft w/o recklessness necessasry for homicide conviction: in fact, record
            does not show that grand teft necessarly means malice required for murder existed.
  Reversed conviction for m2 under fel-mur rule.


Majority View. Other cases have supported the conclusion that the underlying felony should be
considered in the abstract to determine if it is inherently dangerous.
       Thus, abstract appropach encompasses crime in facts malicious and expands it to crimes
        theorhetically malicious.



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        After Phillips, there is a reconfiguration of debate on how to apply the abstract approach. Look to
         supercategory or subcategory of crime in the abstract. Defense will want former, Proseuction will
         want latter. This debate mirrors specific/abstract debate.
    People v. Satchell. Possession of shotgun by ex-felon was not inherently dangerous, so underlying
     statute could not ground felony-murder.


MERGER (LIMITATION TO FELONIES INDEPENDENT OF THE HOMICIDE
 Merger is majority view, but a significant minority of states do not have merger.
    Why merger? Without merger, felony murder rule would be in conflict with the homicide statute.
     In close cases (i.e., where the crime approaches homicide), where there would already be a
     homicide prosecution, do not want fel-mur. In these situations, fel-mur would interfere with
     order of homicide statutes.

People v. Smith
CB 488
  D beat her kid severely as a form of punishment and it died. D convicted of m2 and felony child
   abuse: m2 arose from child abuse conviction under fel-mur.
  Rule
      A second-degree felony-murder instruction may not properly be given when it is based upon a
       felony that is an integral part of the homicide and which the evidence produced by the
       prosecution shows to be an offense included in fact within the offense charged. (Ireland)
      If the felony was included within the facts of the homicide and was integral thereto, a further
       inquiry is required to determine if the homicide resulted from conduct for an independent
       felonious purpose as opposed to a single course of conduct with a single purpose. (Burton)
  Reasoning
      Application of fel-mur rule is barred where the purpose of the conduct was the very assault that
       resulted in death.
      In this case, the purpose of the child abuse was the very assualt that resulted in death. Thus, the
       underlying felony - child abuse - was an integral part of and included in fact in the homicide.

Notes on Smith
  Under merger, turning a felony conviction into a murder conviction, where the death resulting from
   the underlying felony is integral to that felony, is bootstrapping.
      Wilson. An instruction that intent to assault makes the entry burglary AND that the burlgarly
       rasies the homicide resulting from the assault to first degree murder without proof of malice is
       bootstrapping.
  An odd application - Sears (in Smith)
      There would be merger for man who intends to assault both and kills one or both. Therefore,
       court uses merger for man who inadvertantly kills another while intended to assault another.
      This is anomaly from application of fel-mur in Wilson (the standard case). Usual effect of fel-
       mur is that more heinous crime is merged and less heinous crime is not. Here, court is saying b/c
       more heinous crime is merged, the less heious crime should be as well.

Paradox of Felony-Murder
  If act is too close (in its nature) to homicide, merger kicks in and no fel-mur.
  If act is further away (in its nature) from homicide, fel-mur applies and no merger.
  So, less serious felonies become murder chargers and more serious felonies do not become murder
   charges. The more the underlying felony approaches murder, the more likely the resulting homicide
   merges into it: thus, conviction for homicide is less likely



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    Ex. Parents who beat their kids to kill them only get convicted of felony abuse. Parents who beat
     their kids to discipline them, and then the kid dies, get convicted of murder. So, the real killers are
     convicted of a lesser crime under merger.




Causation
    See MPC § 2.03

Cause-in-Fact
  In order to make this determination, courts traditionally apply the “but-for” test: “But for D’s
   voluntary acts, would the social harm have occurred when it did?” If the answer is no, i.e., the social
   harm would not have occurred when it did but for D’s conduct, then D is a cause-in-fact of the result.

Problems with the But-For Test
  Wrongful Procreation Problem. Suppose a man, knowing he has AIDS, impregnates a woman, thus
   infecting both mother and child. Did the man murder the woman? Did he murder the child? “But-
   for” the man’s act, the woman and child would not have died. Katz noted, however, that “but-for” the
   man’s act, the child would not be alive either. So, while the father meets the cause-in-fact
   requirement, we must question the “but-for” test’s usefulness here.
  Pre-emption Problem. The desert victim. Henri plans a trek through the desert. Alphonse, intending
   to kill Henri, puts poison into his canteen. Gaston also intends to kill Henri, but has no idea what
   Alphonse has been up to. He punctures Henri’s canteen. Henri (the desert victim) dies b/c the
   poisoned water drains out – thus he dies of thirst. Is Alphonse (the poisoner) morally culpable? It
   seems like his act doesn’t meet the “but-for” test. As for Gaston (the driller), didn’t he actually
   prolong Henri’s life?
       Dilemma (still a doctrinal puzzle)
           Alphonse. He got rid of poision, so he saved Henri from death by posion.
           Gaston. He did not drink it b/c it drained out.
           If neither had done anything, Henri would still be alive.
       Argument. Driller did not drikll hole to save man, but to kill him.
  Over-determination Problem. Imagine two independent assailants simultaneously administer a fatal
   blow to the victim. Under the traditional “but-for” test, the two assailants may be convicted of
   murder, but no more. An alternative formulation of the “but-for” test may seem to offer a way out. It
   requries not only that “but-for” D’s act the victim’s injury would not have happened, but it requires
   that “but-for” his act the victim’s injury would not have happened as it did. This test also helps in
   the (similar) preemption problem above. Applying this version of the but-for test, both assailants
   satisfy the causation requirement.
       Criticism. Makes a lot of people liable we don't want to. E.g., a nurse turns off lights, guy dies.
        She change circumtances o his death and is thus liable (but for turning of light, he would not have
        died in dark).
  Statistical Effects Problem. A corporation is looking for a site on which to build a nuclear power
   plant. Let us suppose building the power plant in location X is negligent, b/c it produces 20 “extra”
   cancer cases. In other words, suppose 100 deaths would have occurred if the executive had prudently
   located the site, but his decision results in 120 deaths. Is the executive liable for murder? Doesn’t he
   meet the but-for test? In this situation, the but-for test is not enough, b/c it doesn’t do an adequate job
   of sorting, or holding the executive liable for only the extra deaths.

Proximate Cause



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    The sole point of the but-for test of cause-in-fact is to identify candidates for responsibility for an
     event. The analysis for “proximate causation” is to determine who among these candidates should be
     held causally accountable for the harm.
    Directness. According to Dressler, the closest thing to a bright line rule in the realm of proximate
     cause is this: an act that is the direct cause of social harm is also a proximate cause of it.
    Foreseeability. In general, if an act is not foreseeable, it is probably not the proximate cause.
    Katz does not think proximity is a good proxy for mens rea.

Omissions as Causes
 Law is settled that omissions can be legal causes of results – courts have found a person’s failure to
  act (in the presence of a duty and an ability to act) to be legal cause of a prohibited result - like death.



Causation -- Foreseeability and Coincidence

Why is foreseeability used in intentional homicides?
 A way of establishing whether mens rea is met.
Why is foreseeability use for reckless (unitentional) homicides?
 If risk that materializes is not w/in risk of behavior that may have caused death, then behavior fails
  proximate causation.


PEOPLE V. ACOSTA
CB 548
  Two police helicopters chasing D ran into each other. D convicted of m2 for deaths of pilots.
  Held that D's conviction was proper: the collision was a foreseeable result of the conduct.
  Rule. Only highly extraordinary results are outside proximate causation necessary for criminal
   liability.
  Reasoning. There is an appreciable probability that one of the pursuers, in the heat of the chase, may
   act negligently to catch the quarry.
  Dicta. Proximate cause is more common sense than pure logic
  Reversed conviction.


PEOPLE V. ARZON
CB 551
1) D was indicted for two counts of m2. Set fire to a couch that caught a building on fire. Another
   independent fire started in the building. The smoke from both fires killed a fireman. D moves to
   dismiss the indictment for m2.
2) Held that there was a causal link between undelrying crime and the death.
3) Rule - Kibbe Doctrine.
   a) X's conduct need not be the sole and exclusive factor in the victim's death.
   b) X is criminally liable if his ocnduct was a sufficiently direct cause of death, AND the ultimate
       harm is something that sholuld have been foreseen as being reasonably related to the acts of the
       accused.
4) Reasoning
   a) Irrelevant that second fire contributed to death: it was foreseeable that firemen would respond,
       which would expose them to life-threatening danger. The fire set by D was an indispensible link
       the chain of events that lead to the victim's death.


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Criminal (Katz)                                                                          Page 39 of 64
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   b) At the very least, D's act placed the deceased in a position where they were vulnerable to the
      separate and independent force of the second fire.
5) Motion to dismiss denied.

Hypo variation of Kibbe
  A man is left beside road after mugging w/o glasses (legally blind). A plane lands on him. Muggers
   want him to die from exposure. However, not liable for his death b/c he did not die in way the
   envisioned. Is no liablity the correct conclusion? Yes - outcome they desisred as intended (death by
   exposure) did not happen (death by plane), which means they did not intend death that happened.


PEOPLE V. WARNER-LAMBERT CO.
CB 552
  Court subscribes to the requirement that D's actions must be a sufficiently direct cause of the
   ensuing death before there can be any imposition of criminal liability. This standard is greater than
   that required as a basis for tort liability.

Notes
1) Generally, D takes the victim as he finds him.
2) Wounds and Medical Maltreatment
   a) Hale notes the year and day rule. D can be held liable for wound untreated, speeding up
      impending death, etc.
   b) If a death results from an unusual disease unforeseeably contracted by victim after assault, D is
      presumably relieved of liability. True even when victim would not have contracted disease, but
      for situation created by injuries.
   c) However, if the disease produucing the death was contracted before D's assaults, D is still liable
      for death.
   d) Hall v. State (IN 1927)
      i) It is not indispensible to a conviction that a wound be necessarily fatal and the direct cause of
           death. If the wound caused the death indirectly through a chain of natural effects and causes
           unchanged by human action, the person who inflicted the wound or injury is responsible.
      ii) A person who inflicts a serious wound upon another, calculated to destroy or endanger his
           life, will not be relieved of responsibility, even though unskilled or improper medical
           treatment aggravates the wound and contributes to the death.
   e) Regina v. Cheshire (UK 1991) - Medical Maltreatment
      i) Act or omissions of a doctor treating the victim may be so extraordinary that they are acts
           independent of theconduct of the accused, but it this is most unlikely. ONLY IF the original
           wound is merely the setting in which another cause operates can it be said that the death does
           not result from the wound.
3) Dan-Cohen Article. CB 559. Retribution is the intuitive justification for the causation requirement.

Transferred Intent
  D shoots at X intending to kill him. D missed X and hits Y. All jurisdictions hold that D is guilty of
   murdering Y.
  MPC reachs this conclusion w/o fiction of transferred intent. § 2.03(2)(a) provides that where crime
   requires that D intentionally cause a particular result, that elelment of the crime will be satisfied
   where D accidentally causes that result to one person while trying to cause it to another.




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Criminal (Katz)                                                                           Page 40 of 64
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MPC ON CAUSATION -- 2.03
Cause-in-Fact
   The MPC applies the but-for rule. To be guilty of an offense, a person’s conduct must cause the
    prohibited result. MPC § 2.03(1)(a) defines “cause” as “antecedent but for which the result in
    question would not have occurred.” The common law principles that clarify the meaning of this test
    also apply in Code jurisdictions.
Proximate Cause
   Unlike common law, the Code treats but-for causation as the exclusive meaning of “causation” in the
    criminal law. The Code treats matters that the common law would consider in terms of “proximate
    causation” as issues relating to the actor’s culpability.
MPC 2.03(2)(a) & (b) and 2.03(3)(a) & (b)
   These sections deal with situations in which the actual result of D’s conduct (considering both the
    precise harm caused and the manner in which it occurred) diverges from that which was designed,
    contemplated, or (in the case of a crime of recklessness or negligence) risked.
   In such circumstances, the issue in a Code jurisdiction is not whether, in light of the divergences, the
    D was a “proximate cause” of the resulting harm, but rather whether it may still be said that he caused
    the prohibited result with the level of culpability – purpose, knowledge, recklessness, or negligence –
    required by the definition of the offense.
Application
   According to the Code, D has not acted with the requisite culpability (which, in this context, is the
    same as saying that the common law proximity standard is not satisfied), unless the actual result,
    including the way in which it occurred, was not “too remote or accidental in its occurrence to have a
    [just] bearing on the actor’s liability or on the gravity of the offense.” Thus, under the Code, the
    varying and sometimes inconsistent proximate-causation doctrines developed by the common law are
    replaced with a single standard, which invited the jury to reach a result based on common sense and
    fairness.
Felony Murder Rule
   In the rare circumstances of an offense containing no culpability element, MPC § 2.03(4) provides
    that causation is “not established unless the actual result is a probable consequence of the actor’s
    conduct.” Basically, this rule permits a person to be convicted of murder for an accidental killing that
    occurs during the commission of a felony. In a jurisdiction that recognizes the common law felony-
    murder rule, but which applies MPC causation principles, a D may not be convicted of felony-murder
    if the death was not a probable consequence of his felonious conduct


Causation -- Subsequent Human Actions (Intervening Acts)

PEOPLE V. CAMPBELL
CB 581
1) D was drinking with deceased. D suggests that deceased kill himself. Deceased said he had no
   weapon: D gave his gun to deceased and left. Deceased then shot himself.
2) Held that giving someone a gun who subsequently uses it to commit suicide is not murder.
3) Rule. Incitement to suicide is not a crime.
4) Reasoning
   a) Homicide is the killing one person by aonther. Suicide, by definition, excludes homicide. D has
       not killed another person.
   b) D had no present intention to kill. He provided the weaopn and departed. D hoped deceased
       would kill himself, but hope alone is not the degree of intention requisite to a charge of murder.
       Morally reprehensible, but not criminal.
5) Overturned conviction.


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Notes
1) Majority View. One who successfully urges or assists another to commit suicide is not guilty of
   murder or manslaughter so onlg as the deceased was mentally responsible and was not forced or
   deceived.
2) Minority View. It is criminal to assist in suicide. Many state statutes modeled after MPC § 210.5,
   which makes it criminal for a person to purposely aid or solicit another to commit suicide. If the
   person solicited or aided commits or attempts suicide, the crim is punishable as a felony. Otherwise,
   it is a misdemeanor.

Intervening Human Actions
    a) Foreseeability is not applicable in cases like Campbell. Law regards person's acts as product of
       his own choice and not as having been caused. Nothing causes another person to act - he chooses
       by free will.
    b) Novus actus interveniens. A new action by another party that becomes the new foundation of
       causal responsiblility. This is a general principle and not hard rule. Voluntary acts are treated as
       outside any causal chain.
       i) Exceptions include: acting without full knowledge, compuslion of duty, excitement, duress.
    c) Involuntary acts are treated as caused by something else.
    d) In general, subsequent human actions tend to be view as chosen rather than caused in the
       following two ways:
       i) Subsequent actions intended to produce the result
       ii) Subsequent actoins that recklessly risk the result
    e) Novus actus applied less strictly here to subesequent human actions.



SUBSEQUENT ACTIONS INTENDED TO PRODUCE THE RESULT

STEPHENSON V. STATE
CB 564
1) D abducted deceased. Raped and beat here over two days. When out at a store, deceased bought
   some poison and later took it. Deceased requested a doctor, which D denied. Instead, D drove her to
   his home. Deceased parents took custody and got her medical attention. All deceased's wounds
   healed except one, and she later died. The medical cause of death named several factors - none of
   which was sufficient by itself to kill her. D convicted of m2.
   a) D argued that deceased committed suicide: her taking the poision was an intervening act that
       broke the causal connection between his acts and the death. Her taking the poison was the
       proximate cause of her death.
2) Held that D rendered the deceased mentally irresponsible, which was the natural and probable
   consequence of such unlawufl and criminal treatment. Thus, D is guily of m2.
3) Rule. When suicide follows a wound inflicted by D, his act is homicidal - provided that deceased
   was rendered irresponsible by the wound and as a natural result of it.
4) Reasoning
   a) D had complete domination over the deceased, from time she was entrapped until she returned
       home. The same forces that would impel her to shoot hersef during the actual attack or throw
       herself out of a car after the attack were active when she took the poison.
5) Affirmed conviction

Notes



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     a) An insane intervening actor will not break the causal conncetion between D's act and the death
        (including suicide).
     b) The intervening actor' responsibility for the death will be destroyed if he acts innocently in
        ignorance of fact, or in necessary self-defense, or instinctively as a result of fear, or in pursuance
        of public duty. Because the action is natural and instinctive, the law holds for homicide the
        previous actor who unlawfully created the situation.



SUBSEQUENT ACTIONS THAT RECKLESSLY RISK THE RESULT

COMMONWEALTH V. ROOT
CB 573
1) D found guilty of manslaughter for death of his competitor in a highway drag race.
2) Held that D's reckless conduct was not a sufficiently direct cause of the competing dirver's death to
   make him criminally liable.
3) Rule. Proximate causation for criminal liable requires a sufficiently direct causal relation.
4) Reasoning. The deceased was aware of the dangerous condition created by D's reckless conduct.
   Despite this knowledge, he choose to swerve his care into the path of the oncoming truck that caused
   his death.


PEOPLE V. KERN
CB 574
1) Ds convicted of second-degree manslaughter for chasing a man onto the highway where he was
   fatally hit by a car. Ds appeal, arguing that there was insufficient evidence of causation, and that
   driver who hit deceased had been negligent: thus, his actions constituted an intervening act that broke
   causal chain
2) Held that Ds actions were a "sufficiently direct cause" of victim's death so as to warrant the
   imposition of criminal liability.
3) Reasoning
   a) It is no argument to say victim cause his own death by choosing the wrong escape route.
   b) Argument that car driver was independent intervening act fails b/c there was nothing in
       circumstances of death to relieve D from directly foreseeable consequence of their actions. Even
       assuming driver who hit victim was less than cautious in driving, facts show his actions were not
       sole cause of victim's death. Ds forced him onto highway.


STATE V. MCFADDEN               --       REJECTS ROOT
  D was racing his friend, who ran into another vehicle. Both the friend and a passenger in the other
   car were killed. D convicted and appeals, arguing that proof of causation was lacking.
  Holding
      Friend's voluntary and reckless participation in the drag race does not itself bar D from being
       convicted of involuntary mansalughter for his friend's death.
      The coviction was propely founded upon the more exapnsive doctrine of proximate cause that
       does not require a "direct causal connection."
  Rule
      The acts and omissions of two or more persons may work concurrently as the efficient cause of
       an injury and in such case each of the participating acts or omissions is regarded in law as a
       proximate cause


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         The tort doctrine of proximate causation, coupled with a required finding of recklessnesss, applies
          to causation for criminal liabilty.


PEOPLE V. ATENCIO
CB 577
  Ds convicted for manslaughter. They participated in russian roulette game with deceased. Ds argue
   that court should have ruled, as a matter of law, that there were three solo games of russian roulette
   instead of one group game.
  Held that Ds could properly be found guilty of manslaughter: their conduct in helping bring about the
   victim's death was reckless.
  Reasoning. It is an oversimplification to contend that each partiicpatged in somehting that only one
   could do at a time. Mutual encouragement in a joint enterprize could be found. There was a duty on
   their part not to cooperate or join with deceased in the game.
  Affirmed conviction for manslaughter.




Four Ways of Liability -- Comparison

Principal
Innocent Agent
Accomplice
Conspiracy


PRINCIPAL
     a) Causation. In fact and Proximate.

INNOCENT AGENT DOCTINE (PERPETRATION BY MEANS)
     a) X causes Y to do the crime. X must also have the mental state required for the commission of the
        crime.
     b) IA not needed where actus reus is causation. SO you need it when the crimes require more than
        causation for acuts reus (burglary, etc.).

ACCOMPLICE LIABILITY
     a) MPC
        i) Purpose to commit substantive offense.
        ii) Conduct constituting a substantial step toward commission of that offense.
        iii) NOT ANY foreseeable crime
        iv) Reckless/negligent mens rea. On hook for result crimes IF:
             (1) Accomplice in conduct that caused the result
             (2) Acted with mental state regarding result sufficient for commission of offense.
        v) Gray area between an attendant circumstance and a result is not clarified by MPC.
     b) Common Law
        i) Purpose to assist principal in conduct that forms basis of offense.
        ii) Has mental mental state required for commission of offense, as provided by definition of
             substantive crime.



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               (1) This may be inferred from the first intent
          iii) ANY foreseeable crime.
          iv) Reckless/negligent mens rea. On hook for result crimes.
          v) As long as X acts with purpose of assisting principal in coudct that constitutes the offense, X
               is an accmplice if his culpability to the attendant circumstances would be sufficient to
               convict him as a principal.
               (1) The mens rea regarding the substantive offense should control the accomplice's situation.

CONSPIRACY
     a) MPC Rejects Pinkerton on conspiracy
     b) Conspiracy is a much broader basis for liability. All a conspirator need do is agree, which may
        serve as encouragement. He need not particiapte in planning/commission of offense.
     c) See notes 4/06.


Effective difference between Conspiracy and Accomplice liablity
   For far ranging conspiracy, conspiracy liablity puts more people on the hook (liable for those offenses
    that are foreseeable part of conspiracy) than accomplice liablity (liabile only for foreseeable
    consequences of those offense in which S has intentionally assisted). Example - prostitution ring.




Complicity

Complicity has a purposeful requirement.

Common Law Terms
 Principal                        first degree = actor, second degree = aiding and abetting
 Accessory                        not chief actor, not present
 Accessory b/f the fact           procure, counsel, command another to do crime
 Accessroy after the fact         assists the felon
 Modern Law. There are principals and accessories (after the fact)

    Apart from accessroy after the fact, who is still generally subject to lesser punishment, the
     punishment is the same for the three main modes of complicity
    Accessoreis to crime may be convicted b/f principal is convicted
    In most states, D need not be charged with a particular form of complicity. D may be charge w/
     substantive crime commited by person D aided.
    Many states hold that reckless and intentional intervening behavior both break the causal chain.

Complicity by Omission
 A person can be an accomplice if he has a legal duty to prevent the offense and fails to do so with the
  purpose of promoting or facilitating the crime.

Derivative Nature
  Accomplice can not be guilty unless primary committed a crime.
  P's acquittal does not preclude convicting S as accomplice. This varies per case - if P's acquittal
   proves there was no offense, then there can be no accomplice.
       If P's actions were justified and he is acquitted, then S is not guilty.


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        If P is acquittted on basis of excuse (insanity, duress), his acquittal does not bar a prosecuting S to
         who excuse does not extend. P'a acts are still wrongful, he is just not accountable.
    Since the accomplice's liability is derivative, he may be convicted of any offense committed by the
     principal in which the accomplice intentionally assisted the principal. This is true for crimes
     committed or attempted.
    Common Law. IF you have the required mens rea for the offense and use a non-capable human to
     commit the crime, THEN you are liable as a principal. MPC adopts stronger form of this.
    Accomplice Liability -- Assistance
        By physical conduct
        By psychological influence                  incite, solicit, enourage principal
        By omission (assuming a duty to act)

MPC 2.06(6) -- Abandonment.
 Permissilbe only if accomplice terminates his complicity b/f commission of offense and
     Deprives it of effectivemness in commission of the offense, OR
     Gives timely warning to law enforcemnt or otherwise makes effort to prevent commission of the
      offense.

Exceptions to Complicity                MPC 2.06(6)(a), (b)
  A person is not an accomplice in an offense committed by another either if he is a victim or if the
   offense is so defined that his conduct is invetiably incident to is commission.

Common Law/ MPC distinction
 Common Law Disctinction
     I shot encouragement at Stand Row, who has already decided to kill. Complicity.
     I shout encouragement at deaf perpetrator, it is an attempt to aid. No complicity.
     MPC says there is complicity if one actually aids or attempts to aid.
 Logic behind Common Law View
     Is it a situation of redundancy (overdetermination) or ineffectiveness? Subtract away each person
      in group of actors until you get to the one, and see if he has an effect (encouragement) on the
      actor. If so, overdetermination and therefore complicity - on hook. If ineffectiveness - off hook.
     Problem with common law. Hypo based on Tally. Tally prevented the warning telegram from
      reaching Ross, but the telegram would not have helped Ross b/c he was stuck. The Skeltons kill
      him. So, was Tally redundant or ineffective? This distinction easily disappears.
 MPC says the common law distinction (redundancy/ineffectiveness) is pointless. Instead, anyone
  who aids or attempts to aid is liable as an accomplice. So in the hypo - Tally is on the hook
 Katz says the problem of the common law was not eliminated by MPC. If you know you are
  ineffective, then you may or may not be on hook. That is, still an acknowledged difference between
  yelling encouragement in a group and yelling encouragement at a TV.



Mens Rea


MENS REA AS TO ACTIONS OF THE PRINCIPAL

Hicks v. United States                        CB 644
  Rowe shot Colvard, Hicks laughed and said "take your hat off and die like a man." The nearest
   witnesses were some distance away.



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    Held that the mere use of words does not suffice to warrant jury in finding D guilty, regardless of the
     inetntion with which they were used.
    Reasoning. The record shows no facts from which the jury could have prorperly found that encounter
     was the result of any previous conspiracy. Undclear why Hicks sopke the words. Perhaps he was
     trying to aoid being shot by Rowe.
    Bottom Line: These words are not proxmiate cause. This case demonstrates why we need complicity
     to put accomplice on hook

Departures from the common scheme
  Where two persons embarks on a joint enterprise, each is laibe for the acts done in pursuance of that
   jiont enterprise, but if one of the adventurers goes beyond wha has been tacitly agreed as part of the
   common enterprise, his co-adventuere is not liable for the conseequences of that unauthorized act.
  MPC § 2.06(3) agrees and clarifies
  The precise means used in the crime must not have been decided b/f the crime began. If it was, then
   it is not limited to that.
  The liabilty of an accomplice ought not to be extended beyond the purposes that he shares.

Wilson v. People                                 CB 649
  S and P got into an argument over S’s assertion that P had stolen his watch. The two men agreed to
   steal property from V’s drugstore. S assisted P in entering V’s store. While P was inside, S called
   the police – police arrested both S and P for burglary and larceny. S’s conviction was overturned
   because he lacked the second mens rea of an accomplice, namely, the mental states required for
   commission of the offenses of larceny and burglary.
  A detective (agent provacteur) entering apparently into a criminal conspiracy already formed for the
   purpose of exploding it is not an accessory b/f the fact.

State v. Gladstone                                 CB 650
   D convicted for aiding and abetting another man in the unlawful sale of marijuana. No
    communication between D (first approached by cop) and the man who eventually sold it. Gave cop
    other man's name,address, and drew a map to his house.
   Rule. There is no aiding and abetting unless one in some sort asociate himself with the venture, that
    he particiapte in it as in something that he wsihes to bring about, that he seek by his action to make it
    succeed.

Notes
  Knowledge of success won't do it - must have purpose of helping the other person succeed.
  D could not be convicted for helping the undercover cop b/c the undercover cop was not committing a
   crime in purchasing the marijuana.
  MPC requires that actor have purpose of promoting or facilitating the commission of crime.
  NY has "criminal facilitation," which requires only that the aider believes it "probable" that the
   person aided will commit a crime.

People v. Luparello                              CB 655
  Guy wants to find his ex-lover. He asked his friends to help, saying to do whatever it takes to find
   her. They found a friend of the ex-lover's husband and killed him, without D present.
  Rule
      Only the the perpetrator can and must manifest the mens rea of the crime committed.
       Accomplice liability is premised on an equivalent mens rea, which comes from intentionally
       encouraging or influencing the act.
      To be a principal to a crime the aider and abettor must intend to commit the offense or to
       encourage or faciliate its commission.


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    Liability is extended to reach the actual crime committed rather than the planned or intended crime,
     based on policy that aiders and abettors should be responsible for criminal harms they have naturally,
     probably, and foreseeably put in motion.
    Notes
        This reasonable foreseeability test is opposed to MPC, which requires that the secondary actor
         help or encourage the crime the principal actually committed. MPC is minority view on this
         issue.
        Dressler says the effect of this rule is to permit conviction and punishment of an accompolice
         whose culpablity is lees than s required to prove the guilt of the primary party. (Convict for
         intent crime where S was only negligent)


MENS REA AS TO ATTENDANT CIRCUMSTANCES

    As long as S acts with purpose of assisting the principal in the conduct that constitutes the offense, S
     is an accopmlice if his culpability as to the attendant circumstances would be sufficient to convict him
     as a principal. The mens rea regarding the substantive offense should control the accomplice's
     situation.

Johnson v. Youden                        CB 659
  Before a person can be convicted of aiding and abetting the commision of an offense, he must at least
   know the essential matters that constitute the offense.
  This means you must know the matter which in fact constituted the offense, b/c he can only be guilty
   if he wants the entire offense to occur (purposeful). In contrast, MPC 2.06(3)(a) is intentionally
   ambigious on this issue - expalined

    Willful blindness is treated as equivalent to knowledge, but neither negligence nor recklessness is
     sufficient. (Giorgianni)


MENS REA AS TO RESULT -- THE MCVAY EXCEPTION UNDER MPC

State v. McVay                            CB 661
   Kelly was alleged an accessory b/f the fact, for hiring the the captian and engineer of a steamship.
    The ship's boiler exploded and killed some passengers. The two men were convicted of manslaughter
    - reckless in causing deaths of others.
   Held that D may be indicted and convicted of being an accessory b/f the fact to the crim of
    manslaughter arising through criminal negligence.
   Reasoning. Kelly pariticapted in procuring Ds to act in a grossly negligent manner. He - with full
    knowledge of the possible danger to human life - recklessly and willfully adivsed the two men to do
    what resulted in their mansluaghter conviction.

The McVay Exception
  MPC 2.06(4) puts Kelly on hook as an accomlice in the conduct of causing the result - a result crime.
   Only mens rea required here is that of prncipals. So, MPC 2.06(4) is an exception to 2.06(3) -
   attendant circumstances. There is no liability for attendant circumstances. So there is a gray area:
   what is a result and what is an attendant circumstance?
      So, under 2.06(4) - don to need to intend the result, just to "intend the recklessness."

The MPC Text



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    MPC 2.06(3). One who aids or solicits another person to commit an offense is an accomplice of that
     person only if he or she acts “with the purpose of promoting or facilitating the commission of the
     offense.”
    MPC 2.06(4). When causing a particular result is an element of an offense, 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, if any, with respect to that result that is sufficient for the commission of the
     offense.

Common Law
 A person is an accomplice in a commission of an offense if he intentionally aids the primary party to
  commit the offense charged. The two intents:
    The intent to assist P to engage in the conduct that forms the basis of the offense; and
    The mental state required for commission of the offense, as provided in the definition of the
     substantive crime.
         This may be inferred from the first intent.
 Permits accomplice liability for negligent and reckless crimes.

People v. Abbott                                  CB 662
  Drag racing case. Abbott ran into another car and killed the occupants. Moon was his competitor in
   the race. Moon convicted.
  Rule. Accessorial lability may attach for criminally nelgigent homicide provided that the accessory
   shares the requisite culpable mental state for the crime and intentionally aids in its commission.
  Reasoning. Without Moon's aid Abbott could not have engaged in the race that caused the deaths.



Actus Reus

Wilcox v. Jefferey       (CB 666)
  The Jazz case. American jazz musician came over and performed, which violated a law about
   foreigners needing a license to perform. D, a beat writer, was charged with aiding the man's violation
   of the law.
  Held that there was evidence on which the lower court could find that D aided and abetted.
  Rule. Where the presenece may be entirely accidental, it is not even evience of a/a. Where presenece
   is prima facie not accidental, it is evidence of a/a.
  Reasoning. D paid to go to conecert and went there b/c he wanted to report it. He was there on
   purpose, and knew it was illegal for the jazz man to play in the concert. D's presence was
   encouragement.

Causation and Actus Reus
  For a/a, the assistance need not be a but for cause of the criminal result. It is sufficient if it
   facilitated a result that would have transpired w/o it.
  It is quite enough if the aid merely renders it easier for the pricnicpal actor to accmplish the end
   intended by principal and the a/a. (Tally)
       Ex. If he who facilitates murder, even by so much as destroying a single chance of life the
        assailed might have otherwise had, has acted as a/a the perpetrator.
  Even if the same result might have occurred w/o D's contribution, he can liabile as an accomplice if
   he acted w/ the required mens rea.

MPC 2.06(3)



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    Remember, one who aids - or attempts to aid - is liable ONLY IF the prinicipal actor actually
     commits an offense.
    Where prinicipal actor commits neither the completed offense nor an attempt, the purported
     accompliace is not liable.
        This conduct may be crimimnal as an attempt or as criminal conspiracy (other sections of MPC).
    A person acting with the required mens rea is an accomplice whether the person aids or "attempts to
     aid" another person in planning or committing the offense.

Solicitation
   Solicitation is a basis for accomplice liability.
   It is established even if the actor fails to communicate with the person he solicits to commit the crime.



Relationship between Liability of the Parties

    B/c of its derivative nature, accomplice liability does not result from the relationship between the
     parties. Liability requires conduct by seoncd actor - intentional conduct designed to persuade or help
     - to blame him for what primary actor has done.
         D charged with a/a the commission of a crim by another cannot be ocnvicted in absence of proof
          that crime was actually committed.


THE FEIGNING PRIMARY PARTY
 The Innocent-Instrumentality doctrine does not apply. Acts of feigned accomplice may not be
  imputed to the targeted D for purpose of obtaining a conviction. Applied in Hayes, but not in Vaden
  (b/c of public auhtority justification).

State v. Hayes                    (CB 671)
   D wanted to rob a general store and asked Hill to help. Hill was related to the store owners, but
    agreed to help in order to catch D. D helped Hayes break in, and was convicted for burglary
   Held that to put D on hook, the intent and act must combine, and all the leemnts of the act must exist
    and be imputable to D.
   Reasoning
       Some act essential to the crime charged was in fact done by the detective (Hill), and not by D,
        and this act not being imputable to D, the latter's guilt was not made out.
       To make D resopnsible for acts of Hill, they must have had a common motive and common
        design. Here, the design and motives of the two were antagonistic.
       If Hill entered the rooom with no design to steal, but simply to catch D in commission of crime,
        and D did not enter room himself, then he is not guilty of burglary.

Vaden v. State                  (CB 673)
  Vaden was local guide suspected of letting hunters violate hunting laws. Snell was an governemnt
   agent who went to see if he could catch Vaden in the act. Vaden took him in a plane, gave Snell a
   shotgun, and flew the plane so Snell could shoot 4 foxes (illegal to shoot from plane and fox was out
   of season.
  Court upheld Vaden's concviction b/c of need for law enforcemnt - public authority justification
   defense. No criminal conduct occurred for which Vaden could be convicted w/o an accomplice.
   Also, no entrapment had been shown b/c Snell's actions - while illegal - did not amount to denial of
   due process.



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INNOCENT AGENT DOCTRINE -- MPC 2.06(2)(A) (PERPETRATION BY MEANS)
  One is no less guilty of committing a crime b/c he uses the overt conduct of an innocent or
   irresponsible agent. He is accountable in such cases as if the conduct were his own.
  Limits.
       Where statute definse crime so that it can only be committed by designated classes of persons.
           Ex. Law porobhits officer of bank from entering false records. One who is officer cannot
            commit offense. If X get innocent officer to do so, the absence of guilty principle precludes
            accomplice liability for X. The doctrine does not apply b.c of how the statute is worded.
       Nonproxyable actions
           Ex. D causes married person to marry another by making the married person thinkg his prior
            marriage was terminated. D cannot be held liabilty for bigamy simply b/c he caused the other
            person to marry.
       Perjury (not applied)
  Ex. Does not apply to Hayes, but wuld if Hill were holding Hayes at gunpoint.
  MPC 2.06(5). If X is legally incapable of commiting the offense, X may be guilty if commited by
   conduct of another for which X is liable.
           Ex. Husband soliciting rape on hook (although legally impossible for husband to rape wife).


CULPABLE-BUT-UNCONVICTABLE DOCTRINE
 Where principle would be guilty except for a policy-based defense that makes him unconvictable
  (diplomatic immunity or entrapment acquittal). In these cases, the accompliace is guilty b/c the
  policy reasons do not apply to him.

Notes
  Where the principal has been acquitted, the accomplice who is subsequently tried may not raise that
   acqiuttal as a defense.
  The secondary party may be convicted of a crime more serious or less seroius than the one committed
   by the prinicpal actor.
      Offense of instigator need not be of same grade as that of perpetraror. Instigator may act in hot
       blood (manslaughter), while perpetrator acts in cold blood (murder). Vice-versa.



Conspiracy

    An agreement between two or more persons to do an unlawful act or to do a lawful act in an unlawful
     manner.
    Common law. Conspiracy was a misdemeanor, and if substantive crime was actaully committed, then
     the misdemeanor merged into the actula crime committed.
    Modern law. Conspiracy is punishable as a separate and distinct crime.
    D may be prosecuted for both the conspiracy and the complete crime and the sentences added
     together on conviction.

    Conspiracy is a much broader basis for liability. All a conspirator need do is agree, which may serve
     as encouragement. He need not particiapte in planning/commission of offense.




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    Conspiracy liablity puts more people on the hook (liable for those offenses that are foreseeable part of
     conspiracy) than accomplice liablity (liabile only for foreseeable consequences of those offense in
     which S has intentionally assisted). Example - prostitution ring.

Retroactivity
  With regard to liability for conspiracy, a D may be legally responsible for acts of co-conspirates prior
   to that D's entry into the conspiracy. That is, the prior acts may be used as evidence against him in
   prosecution for the crime of conspiracy. With regard to substantive offenses, a D cannot be
   retroactively liable for offense committed prior to his joining the conspiracy.


CO-CONSPIRATOR EXCEPTION TO HEARSAY RULE
  Krulewitch affirms general doctrine permitting intorduction against one co-conspirator of out-of-court
   statemnts made by another. Doctrine applies whetehr or not the parties have been formally indictmed
   or convicted of conspiracy, provided that the statement is in furtherance of conpiracy (agreement)
   between them.
  Justification: hearsay statements by party being tried should be admissable. He has an opportunity to
   defend himself.
Perjury
  If X causes Y to commit perjury. Perjury is intentionally lying under oath.
       Y is not held liable as a principle for perjury
       Innocent agent doctrine does not apply - X did not casue Y to lie under oath (Y thought he was
        telling truth - he did not intend to lie).

Krulewitch v. United States               CB 720
  D and woman allegedly conspired to persuade another women to travel from NY to FL to commit
   prostituition, which is iillegal. After D was arrested, complaining witness told prosectuion of an
   alleged conversation she had with woman D. Conversation occurred after witness had returned to
   NY and involved a suggestion not to implicate D. The conversation was admitted against D.
  Held that conspirator's statements against a co-conspirator may not be admitted into evidence if the
   statements were not made in furtehrance of the crime charged.
  Reasoning
       The cenral aim of the alleged conspiracy (interstate transport of the witness to D) had either
        never existed or had long since eneded when and if the alleged co-conspirator made the statement
        the witness attributes to her. The testimiony is unsworn, out-of-court declaration about guilt: it is
        hearsay.
       However, it was not made in furtherance of the objectives of the conspiracy charged in the
        indictment, so it is not admissiable as an exception to the hearsay rule. The statement does not go
        to the nature of the conspiracy, so it remains heasay not subject to the exception. That is,
        conspiracies do not necessarily have a plan to cover it up as a part of it.

Katz on Krulewitch
  Hearsay. "Out of court statement offered to prove the truth of the matter asserted."
      Y tells court that X - on trial for murder of Z - told him "I, X, killed Z." This is hearsay.
  So, is the statement in Krulewitch hearsay?
      The statement is tantamount to asserting K's guilt - it implies guilt. But that is not the same as
       hearsay. However, Court says it is hearsay. Yet it is not admissable under the co-conspirator
       exception to the hearsay rule (statements in furtherance of conspriacy are let in).

Duration of a conspiracy



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Criminal (Katz)                                                                            Page 52 of 64
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    Once formed, a conspiracy remains in effect until its objectives have either been achieved or
     abandoned. The statute of limitations runs from when the conspiracy terminates.
        So, a conspiracy often can remian subject to prosecution long after the initial agreemetnwas made
         an dlong after some of its members have ceased any active participation.
    Most court have refused to infer that an implicit agreement to cover up the crime is inherent in every
     conspiracy. So, agreements to coverups do not get into court under the co-conspirator exception to
     the hearsay rule.
        A particular conspiracy cannot be treated as including a coverup agreement UNLESS there is
         "direct evidence of an express original agreement among conspirators to continue to act in order
         cover up traces of the crime." (Grunewald)

Abandonment
  A conspiracy is gnereally considered to be abaondoned when none of the conspiraftors is engaging in
   any action to further the conspiratorial objectives. If such inactivity contunes for a period equla to the
   statue of limiations, prosecution is barred.
  For a particular D to abandon, court have rquied that he take affirmative action to announce his
   withdrawal to all other conspirators (in a away to reasonably calculated to reach them).

Renunciation                          MPC 5.03(6)
  Allows renunciation of conspiracy ONLY IF the circumstances manifest renunciation of the actor's
   criminal purpose AND the actor succeeds in preventin commision of the criminal objectives.

Punishment.
  Majority view. Punishment for conspiracy fiexed at some term less than provided for the object
   crime.
  Minority view (33% states) (MPC). Make punishemnt for conspriacy same as that authorized for the
   object crime, except for the most serious felonies. MPC 5.05(1).
  Traditional view permits separate punishments, with consecutive sentences, for the object crime and
   to conspiracy to commit it. Crime and conspiracy as separate offfenses.
  Grading. Traditional approach is to treate conpspiracy as a generic offense and to prescribe a
   punishment range unrelated to those authorized for the object crimes. Modern law specifes that when
   object of crime is a misdemeanor, punishment for the conspiracy shall not exceed that authorized for
   the misdemeanor.



MPC 5.03
 When a conspiracy is declared criminal b/c its object is crime. Cumulative sentences for conspiracy
  and substantive offenses not permissible.
 Conspiracy have criminal objecitve beyond an crimes committed. Cumulative sentences for
  conspiracy and substantive offenses permissible.


CONSPIRACY AS A FORM OF ACCESSORIAL LIABILITY
    Rule. Each conspiractor is held accountable for any and all crimes that result from the furtherance of
     the conspiracy. So long as the offense is reasonably foreseeable consequence of the conspiracy, it is
     no defense to say the offense was not part of the original plan.
    MPC rejects the Pinkerton doctrine. A person is not accountable for conduct of another solely b/c he
     conspired with that person to commit an offense. MPC views conspiracy as an extension of attempt
     doctrine, not complicity.



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Criminal (Katz)                                                                             Page 53 of 64
Spring 1999




PINKERTON V. UNITED STATES
CB 734
  Pinkertons, Daniel and Walter, were prosecuted for conspiracy to commit violations of the Internal
   Revenue Code and for substantive violations. Only Walter committed the actual violations, but both
   were convicted of conspiracy and certain of the substantive violations. Daniel appeals.
  Held that a conspirator may be convicted of committing the offense intended by the conspiracy
   although he had not direct participation in the actual commission.
  Reasoning.
      The criminal intent to do the act is establish by the formation of the conspiracy. The act was done
       in the execution of the enterprise. The overt act of one partner in crime is attributable to all.

The Pinkerton Doctrine
  A party to a conspiracy is reponsible for any criminal act committed by an associate if it:
       Falls within the scope of the conspiracy; OR
       Is a foreseeable consequence of the unlawful agreement.
  Notes. Creates second route to liablity for substantive crimes for people with a tenuous connection to
   that crime. Luparello generates a similar outcome.



Felony-murder and Complicity


KILLING BY A NON-FELON -- FACT PATTERN
  F1 and F2 enter store to rob it. F1 points gun at X (store employee), threatens to kill her and fires
   warning shots. X fires a weaopn at F1 to prevent the robbery. F1 and V (customer) are killed by the
   shots from X. May F2 be convicted of felony murder of F1 and V?
  Question. Literally, killing occurred "during the attempted commission of the felony," but they did
   not occur in furtherance of it. So does fel-mur apply?


THEORIES OF FELONY-MURDER
 Agency - Majority View. Rule does not apply if an adversary to the crime, rather than a felon,
  personally commits the homicidal act.
     However, in the ordinary felony-murder situation - in which felon kills innocent person - co-
      felons are responsible for the shooting.
     Justifications. 1) Killing was not within res gestae of the offense, since killing was in resistance
      to the crime and not in furtherance of it. 2) The rule has no deterrent effect on felons when
      shooter is a non-felon.
 Proximate Causation - Minority View. Felon is liable for any homicide that occurs during
  commission of the offense, wether shooter is a felon or a third party, if the killing was the proximate
  result of the felonious activity. The result of this result is fact-specific (so not automatically on hook).
     Limited Version. No fel mur conviction of F2 for killing of F1 by X, but on hook for killing of V
      by X.
 Identity of Victim Doctrine. No fel mur if killing was done by the victim.

State v. Canola



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Criminal (Katz)                                                                             Page 54 of 64
Spring 1999


    D and 3 others were robbing a store. Owner shot and killed 1 robber, and the owner was killed by
     another robber. D convicted for both murders. Conviction for murder of other felon was appealed.
    Held that a felon may not be held guilty of murder for the killing of co-felon by victim of felony.
    Applied agency theory.

Katz. Consider accomplice liability - McVay exception.
  MPC 2.06(4). Cannnot be an accomplie to felony murder unless you have an intent to the results -
   the underlying felony and the death. No intent as to the death of the co-felon. No mens rea as to the
   outcome.




Attempts
    From preparation to perpetration
    Completed attempts (Y fires gun at X and misses) and Incomplete attempts (police stops X from
     firing at Y).
    Most jurisdix provide that a fialed attempt to commit the target offense is not an essential elelment of
     a criminal attempt. Meaning:
         In prosecution for crime of intent, jury may properly return a guilty verdict for lesser offense of
          attempt; AND
         In every case where attempt is charged, proof of its actual commission establishes the attempt
    If a person commits the target offense, she may not be convicted of both it and the criminal attempt.
    Rejected view. "Attempt is nothing more than fragmnet of complete offense."

Utilitarian justification for punishing attempts (Hart)
   "Individual who has tried but failed to carry out planned crime may need just as much punishment to
    keep him straight in the future as the successful criminal. He may be as much disposed to repeat the
    crime."
   Criticism. Possible little deterrent effect for attempt punishment. No one thinks they are going to fail
    b/f they act, so they would not worry about punishments for failure b/f acting. Punishments for
    success seem to provide the deterrence.


COMMON LAW
    Attempt is an intent-specific crime, EVEN IF the substantive crime is a general-intent offense.
    Attempt to commit a felony is punished less severely than the substantive offense.
    Mens Rea
        Result Crimes.                          Defined in terms of prohibited result
           A person is not guilty of attempt UNLESS her actions in futherance of the prohibited result
            are committed with the specific purpose of causing the result.

         Conduct Crimes.                           Actus reus defined as harmful conduct rather than result
            Person must possess the specific intent to engage in the conduct that - if performed -
             constitutes the substantive offense.
            Ex. Reckless driving. Guilty IF:
                Intentionally committed actus reus of attempt by purposefully blindfolding self and turing
                 on ignition; AND
                Has specific intent to drive car in a reckless manner




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Criminal (Katz)                                                                           Page 55 of 64
Spring 1999


         Attendant Circumstances.                Facts necessary to constitute crime
             Ordinary specific-intent rqeuirement of attempt should not apply to attendant circumstances.

    Actus Reus                            how much remains to be done / how much has already occurred
       Last Proximate Act Test
           Attempt does not arise unless an actor has it within her power to complete the crime almost
            immediately. Offense would result, if not extrinsically hindered by outside circumstances.
       Dangerous Proximity Test
           Used in Peaslee and Rizzo
           Guilty of attempt when her conduct is in "dangerous proximity to success," or is "so near to
            the result that the danger of success is very great." To determine point of proximit, consider:
               Nearness of danger,
               Greatness of the harm, AND
               Degress of apprehension felt.
       Unequivocality Test (RIL)
           Used in King v. Barker
           Attempt occurs when a person's conduct by itself unambigously manifests her criminal intent
            (ceases to be equivocal).

    Defenses
       At common law, legal impossibility is a defense, factual impossibility is not.
       Factual Impossibility
           Exists where a person's intended end constitutes a crime, but she fails to consummate the
            offense b/c of an attendant circumstance known to her or beyond her control.
       Pure Legal Impossiblity
           Arises when law does not proscribe the goal that D sought to achieve.
       Abandonment
           Applies ONLY IF D voluntarily and completely renounces her criminal purpose.
           Voluntary means "repentance or a genuine change of heart."
           Not voluntary IF:
               actor is motivated by unexpected resistance,
               absence of an instrumentality essential to completing crime, OR
               some other circumstance that increases likelihood of arrest or unsuccessful
                consummation of the offense.
           Not complete IF:
               Actor merely postpones her criminal endeavor until a better opportunity presents itself.
           No abandonment once she has performed last act necessary to commit the offense, OR has
            already caused serious harm to the victim. Relevenat to sentecning, not conviction.




MPC -- MAJORITY VIEW
    Recognizes abandonment defense and grades incohate offense at same level as completed offense.
    Attempt to commit a felony is punished the same as the substantive offense.
    Exception. For first degree felonies (life prison max), attempt is punished as second degree felony
     (10 years).
    Elements of the Offense
        Purpose to commit the substantive offense
        Conduct constituting a susbstantial step toward commission of the substantive offense.



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Criminal (Katz)                                                                           Page 56 of 64
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    5.01(1). A person is guilty of attempt to commit crime if, acting with the kind of culpablity otherwise
     required for commission of the crime, he:
            (A) purposely engages in conduct that would constittute the crime if the attendant
             circumstances were as he believes them to be, or
            (B) when causing a particular result is an element, does or omits anything with pupose of
             causing or w/ belief (knowledge) it will cause such result w/o futher conduct on his part, or
            (C) purposely does or omits to do anything that, under the circumstances as he believes them
             to be, is an act or omission constituting a substantial step in a course of conduct planned to
             culminate in his commission of the crime.
        A and B pertain to completed attempts. A applies when target offense of completed attempt is a
         conduct crime. B applies to result offenses.
        C applies to incomplete attempts - 5.01(2) elaborates meanng of substantial step.

    Mens Rea - Generally, purpose. Two exceptions:
      1(b) and 1(c) say that a person is guilty if she believes that the result will occur, EVEN IF it were
       not her conscious object to cause it.
      5.01 phrase - "acting with the kind of culpablity otherwise required for commission of the crime."
       This means that mens rea of purpose or belief does not necessarily encompass attendant
       circumstances of the crime. For these elements, it is sufficient that actor possesses degree of
       culpability required to commit the substantive offense.
          Ex. If D could be convicted of statutory repae on proof that he was reckless as to age, then he
           could be convicted of attempted statutory rape if he were reckless - but not if negligent or
           innocent - as to girl's age.
          SL crimes. D may be convicted even if he lacks a culpable mental state as to attendant
           circumstance for which there is SL (e.g., age in statutory rape).

    Actus Reus
       Shifts acts focus of attempt law from what remains to be done to what already has been done.
       5.02. Substantial step. Conduct that strongly corroborates D's criminal intent. Need not by itself
        manifest criminality. However, must add significatnly to other proof of crminal intent such as
        confession or other incriminating evidence.
       One who engages in purposeful conduct is sufficiently dangerous to justify interent, EVEN IF she
        is not yet close consumation of the offense.
       5.01(3). Person may be convicted of a criminal attempt although a crime was neither committed
        nor attempted by another, IF:
           conduct is intended to aid another in commission of offense, AND
           such assistance would have made her an accomplice in the commission of the crime under
            MPC 2.06 (complicity), if the offense had been committed or attempted.

Defenses
  Abandonment (Renunciation) MPC 5.01(4)
      A person is not guilty of attempt IF:
         She abandons her effort to commit the crime OR prevents it from being committed, AND
         Her conduct manifests a complete and voluntary renunciation of her criminal purpose.
      Adds part 1 to common law
      No renunciation IF:
         Not complete if wholly or paritally motivated by decision to postpone criminal conduct until
          more advantageous time, or to transfer criminal effort to another but similar objective/victim.
         Not volunatry if partially or wholly motivated by circumstances that increase the probability
          of detection or apprehension.


                                                                                    Johannes de Silentio
Criminal (Katz)                                                                          Page 57 of 64
Spring 1999


    MPC implicitly acknowledges pure legal impossibility - "the result intended or desired must actually
     constitute a crime."
    No factual impossibility. Eliminated by 5.01(1)(a)
    Notes on Abandonment
       Abandonment is proposition that is conscience moves you to stop, then you are off hook.
        Otherwise, on hook.
       If you shot at someone, missed, and then stopped b/c of conscience. You get abandonment
        defense.
       However, once you commit the act, on hook.

Attempts - draw the line early or late?
   Utilitarian                   Indeterminate on early/late issue.
   Deterrence                    Draw the line late.
       Punish them for the fullest wrong. Last Proximate Act.
       However, not sure if it last proximate act . May be earlier.
   So, both utilitarian and deterrence advocates may converge on MPC test.



Mens Rea of Attempts

    Common Law                    Purpose
    MPC                           Purpose or Knowledge
    Katz. Logic behind common law position distinguishing beteween intent and knowledge? It gives
     each party credit for their desired outcome.

    There can be not attempted involuntary manslaughter.
    Bottom Line. Under MPC, Recklessness will not serve as a basis for attempt liability.

People v. Kraft                   CB 585
  D prevented a coupule from passing him on road. D pulled over and so did the couple. He shot at
   their car. Charged with attempted murder, defended himself by saying he never inteneded to kill
   anyone was just trying to scare the couple away. Convicted of attempted murder on jury instruction
   saying the was guilty if he "knows that act creates strong probability of death to an individual."
   Appeals.
  Rule. A person may not be convicted of attempted murder in absence of evidence of an intent to kill
   the victim. Knowlegde othat consequence of one's act may result in death does not satisfy the
   specific intent requirement for attempted murdere.
  Reasoning. All mental states for murder will not do (knowledge, recklessness). Attempted murder
   requires a specific intent to kill someone.
  Reversed conviction and remanded.
Notes
  Given instruction, not guilty under common law. To convict, must show purpose to cause the result.
   However, could be guilty under MPC 5.01(1)(b). Could show purpose or belief (knowledge) as to
   result.
  However, the man is most likely reckless in his shooting. If this is case, not guilty under MPC or
   common law.

Spring Gun hypo




                                                                                   Johannes de Silentio
Criminal (Katz)                                                                            Page 58 of 64
Spring 1999


Guy intends to kill burglars with it. Conditional purpose - wants to kill them only if they enter his house.
Conditional purposes MPC 2.02(6) and combined with 5.01(1)(b) - yes, he is guilty of attempted murder.

Statutory rape hypo
   If victim is negligently thought to be a minor (she is in fact 20), then he is off hook. No purpose or
    belief (knowledge).
   If man believed she was 17 or had puropse of doing it with a minor, THEN:
        Situation 1. The act is committed
            Liable under 5.01(1)(a). He thinks it is a crime…
        Situation 2. The act is intended but prevented.
            5.01(1)(c). Did he commit a substantial step? If so, on the hook.



Actus Reus of attempts

    Common Law                  Last Proximate Act, Unequivocality (RIL),
                                 Dangerous Proximity to Success
    Glanville Williams          Mens Rea, any act toward crime itself is bad
    MPC                         Substantial Step

Commonwealth v. Peaslee                          CB 593
 D was arretsted for arranging combustibles in a house, soliciting someone to start the fire who
  refused, and driving toward bldg with intent to light the materials. When D was within 1/4 mile of
  destination, he changed his mind and drove away. D convicted of attempted arson and appeals
 Held it is not necessary that accused carry through with last act of his criminal purpose to be held
  liable for attempt.
 Dangerous Proximity. Some preparation may amount to an attempt - it is a question of degree. If
  preparation comes very near to accomplishment of the act, the intent to complete it renders the crime
  so probable that act will be an attempt, although there is need for further exertion of will to complete
  the crime. Degree of proxmity held sufficient may vary with circumstances.

King v. Barber                           CB 594, 606
  RIL Test. A man's unfulfilled criminal purposes should be punishable they must be manifested not by
   his words merely, or by acts in themselves innocent or ambiguous, but by overt acts that are sufficient
   in themselves to declare the guilty purpose with which they are done.

US v. Jackson                               CB 610
  D and Allen were contacted by Hodges to help rob a bank. They armed themselves and drove to
   bank, but did not rob it b/c they arrived late. They came back later, but decided to wait until next
   week. Came back, drove by and were detected by gov't agents. All convicted of attempted robbery.
  Held that D may be convicted of attempt when he did not commit last proximate act necessry to
   effect a particular result that is an element of the offense.
  Reasoning
      Last proximate act is sufficient, but not necessary to constitute attempt.
      Uses MPC.
           Must act with culpability otherwise requied for conviction of crime. 5.01(1)
           Must take a substantial step toward commission of crime. 5.01(1)(c)
      Sub step itself can be an omission or a possession.
  Affirmed conviction.



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Criminal (Katz)                                                                          Page 59 of 64
Spring 1999




Solicitation

Common Law. Misdemeanor to counsel to counsel, incite, or induce another to commit or to join in
commission of any offense (either felony or misdemeanor).
  Mens Rea. Requires shwoing that D acted volitionally and with purpose of causing purpose to
   commit crime.
  Actus Reus. Must actually counsel, incite, or induce another to commit the offense.

Modern Statutes. Generally, crime limited to solicitation of serious offense (murder, rape, robber, etc.).
A lesser penalty is imposed for solicitation than for commission, conspiracy, or attempt to commit the
crime.

State v. Davis                     CB 617
   D was convicted of attempted murder for paying an undercover police officer to kill the husband of
    his lover. D had given officer map to house and photos man.
   Held that solicitation does not amount to perpetration of an overt act in a criminal attempt.
   Solicitation is a separate crime. Therefore, more neeeds to be shown than mere solicitation in order to
    establish an overt act necessary for attempt conviction. Intent was clearly established, but an overt
    act going to essence of murder attempt is required.




                                                                                   Johannes de Silentio
Criminal (Katz)                                                                            Page 60 of 64
Spring 1999




Defenses


Abandonment -- See Attempts
    If you shoot the president, and then meet MPC requirements (voluntary, etc.) and president lives, then
     you get abandonment defense.
    If you feel bad about the criminal act, abandonment



Impossibility

Three types:
  Pseudo
  Inherent
  Legal


PSEUDO
    People v. Jaffe
       A person may not be convicted of an attempt to receive stolen goods if the goods were not in fact
        stolen goods.
       Facts. D made an offer to buy goods that he thought were stolen, but before he purchased them,
        they had been returned to their rightful owner. Goods were no longer stolen property but D was
        under impression that they were. D convicted of attempting to receive stolen property.
       If D had completed the crime, he would not have received stolen property. Objectively, his
        behavior is not offensive - the property was not in fact stolen.

    US v. Oviedo
         D agreed to hell heroin to an undercover agent. D was prosecuted for distribution of heroin.
          However, the powder was discovered to be non-narcotic. Held that it was insufficient to show
          that D peform acts that are objectively criminal in nature. No conviction merely b/c D believed
          he was committing a crime. Against MPC.
    Note. If Jaffe were decided on under MPC 5.01(1)(a), D is guilty b/c he purposely engage in conduct
     that would be a crime if attendant circumstances were as he beileves them to be.
    Jaffe Variation. What if the fact that the goods were stolen was important to D? To not convict D,
     they sort of modify MPC 5.01(1)(a) - D must puropsely engage in conduct that …. as he intends
     them to be. Not mere belief. So, D off hook if only believes the goods are stolen.

    People v. Dlugash
       A person may be guilty of an attempt if completion of the crime was impossible.
       Bush shot Geller 3 times in chest, one shot piercing his heart. 2 - 5 minutes later, Dlugash fired 5
        shots into Geller's head. D convicted of murder.
       If a person intends to commit a crime and takes actoin that tends to effect a commission of the
        crime, he is guilty. Falls in line with MPC 5.01(1)(a).
       Bottom line. If there is mistake of fact, you are on the hook.



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Criminal (Katz)                                                                              Page 61 of 64
Spring 1999




    US v. Berrigan
       Under federal law, a person may not commit a criminal attempt when it is legally impossible to
        commit a crime.
       D was convicted of sending letters out from prison w/o permission of warden. Prison officials
        intercepted first letter and knew of other letters that got out. D was convicted for violating prison
        regulation.
       Warden knew and consent to carrying out the letters. Even though such consent was not
        communicated to D, there was legal impossiblity of D's actions being criminal.


INHERENT
    Mens rea is there, but actus reus requirement is not there (voodoo). No conviction



LEGAL
    If the conduct is not a crime by law, then there is no wrong committed. Legality of what you are
     doing is not judged through eyes of actor.

    Revisiting the David Smith case. The law of fixtures / tenant case. Apply 5.01(1)(a). Did he commit
     a crime?
         Imagine facts the way D thinks they are, but do not imagine the law the way D thinks it is. In this
          manner, MPC tracks law/fact disctinction.
         Mistakes of law as to collateral civil laws are exculpatory (just like mistake of fact). Mistakes
          about criminal law are no exculptaroy.



Necessity
    General Rule. Criminal acts, done out of necessity, may be excused:
         If the accused can show that they were done to avoid otherwise unavoidable consequences to
          himself to others he is bound to protect, the results of which would have been irreparable;
         That no more was done that was absolutely necessary; AND
         That the evil inflicted was not out of proportion to the evil that was threatened.
    Vast majority of courts hold that taking another's life are never justified.
    MPC 3.02 (minority view)
    (1) Conduct the actor believes to be necessary to avoid an evil to himself or another is justifiable,
     provided:
              (a) Evil sought to be avoided by such conduct is greater than that sought to be prevent by the
               law defining the crime;
              (b) The law does not specifically provide for such a situation; AND
              (c) A legislative purose to exclude the justification claimed does not otherwise plainly appear.
    (2) Reckless/Negligent in bringing about choice of evils or in appraising necessity for his conduct,
     justification afforded by his action is unaviliable in a prosecution for any offense for which
     rekclessness or negilgence suffices to establish culpability.

People v. Unger                       CB 860
  D was convictd of escaping prison. Showed evidence that crime was justiifed by aff defense of
   necessity. Had been had been assaulted and threatened with rape and death. Claimed he was unable


                                                                                       Johannes de Silentio
Criminal (Katz)                                                                           Page 62 of 64
Spring 1999


     to defend himself and intneded to return upon gaining legal advice. Court denied necessity
     instruction.
    Held that defense of necessity may be used for escape
    Reasoning. D was not compelled to escape, but evidence shows the escape cuold be considered
     necessary.

Borough of Southwark v. Williams               CB 865
  Homeless fimalies, starving, housing shortage. Squatted, arrested for tresspass. Raised necessity
   defense.
  Held that circumstances did not make there entry in to the homes (squatting) neceesary.
  Reasoning. Choice of evils - if homelessness were a defense for tresspass, no one's property would
   be safe.

Commonwealth v. Leno                             CB 865
 MA prohibits distribution of hypo needles w/o prescription. Ds operated needle exchange program to
  combat spread AIDS. Convicted, denied necessity instruction.
 Held that Ds did not show that danger they sought to avoid was clear and imminent, rather than
  debatable or speculative.
 Public policy - defer to legislature on the law. If the instruction had been given, it would allow juries
  to nullify law, which they have no right to do.

Commonwealth v. Hutchins                       CB 866
 D charged w/ illegal possession/cultivation of weed. D offered proof that he had systemic sclerosis,
  which has no cure, and that the weed has lead to a remission. Court denied this proof b/c it would not
  support necessity defense.
 Affirmed conclusion that proof would not support the defense.
 Alleviation of D's conditoin would not clearly/significantly outweigh potential harm to public were
  court to declare medical use of weed is not punishable. Cannot ignore gov'ts insterest in regulating
  such substances.

Analysis of 3.02(2).
  "D needs no justification defense when charged with crime base on recklessness or negligence, b/c it
   is implicit in charge itself that D's conduct was not justified. Unjustifiability of conduct become an
   element of charge itself and must be proved by state."


Three part analysis of necessity defense
      3.02(1) and (1)(a)                Choice of Evils
      3.02(1)(b) (c)
      3.02(2)
  Problems under 3.02(1)(a)
      Utter Utility. Compare choice of evil decisions in these cases to the utilitarian surgeon, where we
       allow him to slice up 1 patient to save 5.
      Collateral effects. Everyone will grow weed, perjure themselves, etc.
      What is the choice? Nazi euthanasia of people who wanted to live. Some doctors wanted to stop
       the program, so they misdiagnosed people to save them. However, to avoid being caught, they
       had to kill some people. Are they off hook under MPC? They saved more than they killed. But,
       no. However, isn't real choice between participating or not participating (just walk away)? So
       MPC will not excuse there killings as necessary.
      How necessary? MPC seems to contemplate proximity and timeliness issues in deciding whether
       D's choice of evils is justified.


                                                                                    Johannes de Silentio
Criminal (Katz)                                                                             Page 63 of 64
Spring 1999




SELF-DEFENSE

Problems
1. Imminence and Probability
  What if threat is coming, but not imminently?
  Probability? Roulette example (X rolls 30, X shoots Y. X has not rolled. Must Y wait until X has
   rolled to defend himself?)
  They are not strictly necessary, they are not even sufficient for self-defense. The statutes do not be
   quite right
2. Retreat
           Property rights…
3. Provocation
               X creates predicament of self-defense, so that X contrives the need for self-defense, does
        X get to retain that right to self defense? (X loses this right under necessity)
               MPC does not settle this very well. What about cop who joins force just so he can defend
            himself someday? The man who walks through Central Park at night, hoping he can defend
            himself? Unclear is MPC covers this



Insanity

The Tests
   M'Naghten. An accused must show that, as a resuot of his mental illnes, he either:
      Did not know the nature and quality of his act; OR
      Did not know that the act was wrong.
  MPC. A person is not responsile for criminal conduct, if at the time of such conduct as a reulst of
   mental disease or defect, he lacks substantial capacty either:
          To appreciate the criminality (wrongfulness) of his conduct; OR
          To conform his conduct to the requirements of law.
  "Mental disease or defect" do not include an abnormality manifested only by repeated criminal or
   otherwise anti-social conduct.

    Deterrence is not justification for this defense (may be inimical to it). The justification is a sense of
     just deserts.
    Discussion of Various Tests
         Durham Test. Get insanity defense if crime was product (caused result) of mental disease. Pretty
          weak - causation covered too much.
         Irresistable Impulse (substantial incapacity). Do not really need insanity defense - this doctrine
          situation would be covered by volunatry act docrtine (if it''s not voluntary, no liablity). Already
          handled by ordinary notions of responsibility.
         M'Naghten Rule. Does it undo Ignorance of Law doctrine? It is generally construed as meaning
          inability to appreicatie wrongfulness on legal level. ???
         MPC. Lack of substantial of capacity to aprreicate criminality or wronfulness of own actions.

M'Naghten                 The Tories were plotting to kill me
Crenshaw                  My religion tells me to kill my wife for being being unfaithful - I think
                          she was



                                                                                      Johannes de Silentio
Criminal (Katz)                                                                         Page 64 of 64
Spring 1999


Cameron                 Deific decree exception. I killed my stepmother because she had an evil
                        sprit in her (she was not a human) and God told me to do it.



Legality

    Bottom Line. State may not punish X unless there is a law under which X can be punished.
       Unlike torts or contracts, cannot create law along the way.

Keeler v. Superior Court
1970                     CB 298
  Held that a person may not be guilty of mruder for killing an unborn fetus when law has not
   determined whether an unborn fetus is a "human being."
  Reasoning
      In adopting the defnintion in the penal code, the legislature intended to exclude the killing of
       unborn fetuses (divined from common law - for murder, "human being" must be "born alive").
      Cannot hold D to answer for murder for an unborn - even though viable - fetus.
          Cruel and Unusual Punishment. Power to defines crimes and fix penatlies is vested
           exclusively in legislature: courts cannot create an offense by 1) enlarging a statute, 2)
           inserting/deleting words, or 3) giving terms used false/unsual meanings.
          Due Process of Law. Assuming court could expand the law, it could only apply such
           expansion prospectively. This case asks for retro application, which is impermissible
           insofar as it is unforeseeable. Such application would deprive D of due process of law b/c
           there is no notice (fair warning) that his contemplated conduct constituted a crime.
              So is it unforeseeable? Yes.
  Dissent
      Penal Code provides that is not subject to strict interpretation of common law. It should be more
       loosely construed, in order to promot justice.
      Accordingly, argues for an expansion of human existence beyond birth and phsycial death.
       Courts do it on one end - what once was a corpse is now a "human being" - so courts should be
       allowed to do it on the other end (a viable fetus should be a "human being").
      Notice argument.
          Absurd to think D read Blackstone and relied on the "born alive" requirement to be a "human
           being" b/f kicking his ex-wife's womb.
          DP only precludes prosecution:
              under new status insufficiently expliecit regardin the specific conduct proscribed, OR
              under a preexisting statuts by means of an unforeseeable judicial enlargement.
                   In this case, homicide statute on book since 1850. Just b/c courts have not yet
                    determine the present question does not render unforeseeable a decision determining
                    that a viable fetus is a "human being" under those statutes.


Dissent Hypo
   In 1850, a drowned child would be dead by statute (brain death). Today, the child would be revivable
    - he is not dead under the statute. So in 1850 stabbing the kid would not be murder, but today it is.
    As much as this analysis to death, it applies to birth.




                                                                                  Johannes de Silentio

								
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