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					I. INTRODUCTION
a. Purpose
      i. Legislative-driven, gives them toolbox
     ii. Looks back at wrongful behavior
    iii. Focus on statutes rather than cases
b. Sources of Criminal Law
      i. Offense Definitions
         1. Definitions created by legislature and codified in statute
         2. Supplemented by general interpretive principles and rules, which may or may not be codified
     ii. Model Penal Code – divided into general provisions and offense definitions
         1. Less rigid than CL especially regarding defenses (defendant-friendly, typically)
c. Three main elements
      i. 1) Criminal Act – actus reus
     ii. 2) Criminal state of mind – mens rea
    iii. 3) Absence of defense of justification or excuse
d. Theories/Purpose of Punishment
      i. Deontological Theories
         1. Retribution: Actions against an offender in proportion to the crime he committed for the
               purpose of punishing/justice. Proportional to wrong done. Limits punishment to those who act
               wrongfully (1) responsible agent who 2) makes free choice).
         2. Whether to punish requires blame / moral wrong – responsible agent making free choice
              a.          Even if no social harm and no victim, still punish on moral grounds
         3. How much punishment is “just” depends on 1) harm caused and 2) mental state of the actor
     ii. Utilitarian or Instrumentalist theories
         1. Deterrence: Punishment such that a criminal and others similarly situated do not engage in
               criminal behavior out of fear of punishment or the example of others
         2. Rehabilitation: Punishing someone in a way such that they leave punishment as a capable, non-
               criminal, law-abiding citizen
         3. Incapacitation: The physical restraint of the criminal decreases crime because their ability to
               commit offenses is ended, provided that 1) some offenders are repeat, 2) offenders are not
               immediately replaced, and 3) prison doesn’t increase their criminal behavior more than it
               prevents.
e. Guidelines for criminal analysis
      i. Statute, then
     ii. Cases, then
    iii. Public Policy

II. THE ACT REQUIREMENT
a. Voluntary Act Requirement – MPC 2.01 and CL the same
       i. Each offense must include at least one voluntary act (or omission when duty to act)
      ii. Rationale for conditioning criminal liability on a voluntary act:
          1. Act provides objective verification/evidence of thought
              a.          Some proof of culpability (evidentiary)
              b.          Law cannot punish what it cannot know (Blackstone, p. 109) - retribution
          2. Autonomy, Freedom of Thought
          3. Privacy: freedom from gov’t monitoring:
          4. Resources/Impractical: too many people would be criminals if thoughts alone sufficient
          5. Equality: Reduces incentives to coerce confessions; harder to fabricate and stereotype
     iii. Courts will infer at least one voluntary act required for criminal liability
          1. Why does act have to be voluntary? Same as above, punishment not just without choice.
     iv.   Three theories on ways to distinguish voluntary from involuntary:
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          1.     Act must be deliberate
                a.          Problem: no part of the brain that controls the will explicitly (i.e. drug addiction
                     voluntary?)
          2. Must be some connection between conscious thought and bodily movement
                a.          Problem is multiple degrees of consciousness
          3. Identify what is involuntary
      v. NOT a voluntary act (MPC 2.01): automatism, sleep-walking, reflexes, hypnosis etc.
          1. Physically coerced movements, reflexes, or convulsion
          2. Stresses element conscious control
          3. Ex: Grant: During seizure, man attacked police officer in crossed parking lot outside bar. ∆
                 argues for insanity and fails. Insanity defense distinct from Automatism/Involuntariness.
                 Question for lower court is whether foreseeable based on past conduct that he would go into
                 seizure.
     vi.   If ∆’s involuntary act causing harm was a foreseeable consequence of a voluntary act, can be found
            liable
          1. Ex: People v. Decina (p. 139): An epileptic person drives. Court holds that having a seizure
                 was a foreseeable consequence.
    vii.   Ex: Martin: Man arrested at home and taken to highway. Not voluntarily in public when
            intoxicated. Court applied voluntary act requirement to “to be in” public place. Appellant was
            involuntarily and forcibly brought into public. Not guilty.
   viii. Ex: Sowry (Syllabus p. 13): ∆ had drugs in pocket, which he didn’t hand over when asked, and
            taken to jail. Statute forbids having drugs in jail.
          1. Courts divided on this issue – would be prosecuted for having drugs if he admitted to having
                 them, but now prosecuted for bringing to jail (not at jail voluntarily).
     ix. Practice problem examples: Snoring neighbor. Snoring during sleep, sleep is necessity, not guilty of
            noise violation.
b. Omission as basis for Liability
       i. General Rule: There can be NO liability for an omission unless there was a legal (not moral) duty to
            act
          1. Same under MPC 2.01(3) and CL approach: OMISSION + DUTY TO ACT
      ii. Determining when there is a legal duty
          1. First, look to offense definition. Does it specify an omission as part of the offense?
                a.          Ex: Definitions #s 4, 27, and 30
          2. Second, look to other statutes that create legal duties (within civil and criminal codes of state)
                a.          Ex: CLCS p. 66: Texas Family Code (1984), 12.04(3): duty of parent to provide for
                     child
          3. Third, look to civil case law that creates legal duties:
                a.          Duty arising from contract (e.g., babysitter)
                      i.    Must be legally enforceable contract
                b.          Duty arising from relationship (e.g., spouse, landlord/tenant, prison official/inmate,
                     teacher/student)
                      i.    In most states, no duty to rescue in intimate relationships except when legally
                              married
                              1. Ex: Beardsley: Man “carousing” with woman (not wife) and witnessed taking
                                   pills/alcohol, leaves with neighbor; woman dies. Trial court convicts but Ct. of
                                   App. reverses; holds not close enough relationship. Line drawn at legally
                                   recognized marital relationship.
                              2. Note: Difference between criminal guilt and tort liability, where guest status
                                   creates a legal duty in most states
                c.          Duty from assumption of care + isolation

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                      i.   Isolation requires that you are actually blocking others from the individual. Not just a
                             child that wouldn’t have visitors…requires affirmative steps to avoid other’s from
                             helping victim (not telling anyone or lying may be enough)
                    ii.    Ex: Billingslea (p. 62-68): Son lived with his mom who became bedridden. Did not
                             care for her as her health deteriorated (bedsores, etc.). Court held not guilty because
                             TX statute said there must be a statutory requirement to act before an omission can
                             count as voluntary act. (Not notice).
                    iii.   Ex: Jones: ∆ failed to feed kid he was caring for. Remanded for whether or not ∆ had
                             legal duty. Could make argument regarding contract (but not being paid) or
                             Assumption of Care+Isolation, but no evidence of keeping others away)
               d.          Duty because of creation of peril
                      i.   Majority rule: Duty only if ∆ culpably creates the peril
                             1. Ex: Beardsley: (facts above) did not create peril, so no duty
                    ii.    Minority rule: Duty even if ∆ reasonably creates the peril
                             1. Ex: Kuntz (syllabus p 17): woman stabs boyfriend in self-defense, but does
                                   not all for help; he eventually dies. She is criminally liable.
    iii.  Examples
         1. Offense definitions with duties to act: pg. 20 (#4), pg. 23 (#27, 30), Good Samaritan Statues pg.
               15, Sex offender registration statutes
         2. Statutes (not offense defs): Texas family Code 12.04(3), pg. 66 CLCS
         3. Ex: David Cash: D’s friend abuses and kills girl, ∆ does nothing (p.14 in syllabus): Not liable
               because no duty to report.
    iv.   Rationale for limiting liability for omission: costs, autonomy, incentivize people to take care of self
     v. Expanding the duty to rescue
         1. Sample “Good Samaritan” statute: Anyone who fails to provide reasonable assistance to
               another person, knowing that person is exposed to bodily harm, with the intent that the person
               suffers bodily harm, shall be guilty of a felony.
c. Possession (MPC 2.01(4))
      i. Knowledge requirement???
     ii. Actual Possession: actual physical control over item
    iii. Constructive Possession: ability to exercise CONTROL over item + INTENT to do so
         1. Factors suggesting ability to exercise control over item
              a.          Recognized authority to exercise control over something not in one’s actual
                    possession
                     i.   Ex: Maldonado (facts below)
                    ii.   Ex: Baggage claim ticket
              b.          Mere proximity, presence on property, or association with person in actual
                    possession is not sufficient (Jenkins)
              c.          Ability to destroy is definitive evidence of control (Tucker)
              d.          Peer to peer network accessible to others (Schaffer)
              e.          Showing, manipulating, and deleting images is evidence of control (Tucker)
         2. Risks (similar to omissions): too easy to prove, too hard to dismiss, no corroborating act
               required, etc.
         3. Intent can be implied or express
    iv.   Now one of the most often prosecuted crimes and one of the more powerful tools available to law
           enforcement
     v. Ex: United States v. Maldonado: Federal agent gave drugs to ∆, when he got to hotel, placed bag in
           hotel room. The two men left in anticipation for 3rd party to arrive. Once ∆ left room, power of
           control shifted to room holder—guilty of possession and intent to distribute.
    vi.   Ex: US v. Nevils: man passed out drunk, carried into neighboring apartment. Woken by police with
           two firearms in apt, bags of drugs. Conviction reversed because “possession --whether labeled
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           actual or constructive --requires knowledge of the object possessed and intent to control that object.
           Knowledge and intent obviously require consciousness, at some point.”
    vii.   Ex: Jenkins: ∆’s conviction reversed for possession of cocaine when found in apartment of
           acquaintance w/drugs on coffee table; no indication of actual possession (fingerprints, etc);
           dominion/control cannot be established by mere proximity
   viii.   Ex: Schaffer: ∆ convicted with distributing child pornography when downloaded images from peer-
           to-peer network; open access of software distribution of the files (compares to self-serve gas
           station)
    ix.    Ex: Tucker: ∆ convicted of possession of child pornography; manipulated, shared and controlled
           pictures on his computer

III. MENS REA
a. In General
       i. Terms and Meanings – proof of greater is sufficient to establish lesser
          1. Negligence: ∆ should have realized/been aware he was engaged in conduct, that the fact
               existed, or that the result would occur, but did not.
              a.           A reasonable person standard (objective)
          2. Recklessness: ∆ is aware of the risk that he is engaged in conduct that a fact exists, or that
               result will occur, but acted anyway
              a.           Ex: Rypinski: Recklessness = subjective awareness + substantial risk
              b.           Fleeting awareness that risk exists
          3. Knowledge: ∆ knows or believes he is engaged in conduct/will cause result/that fact exists
              a.           Subjective awareness
          4. Willful/Deliberate: ∆ hopes or wants to engage in conduct/ to cause result/the fact to exist
              a.           Look to statements, circumstances, reasons, and motives
          5. Intent = Knowledge or Willfulness under CL; Purposeful under MPC
b. Default Rule
       i. Common Law approach: Default rule is Negligence
          1. Mens rea is required for each material element, even if not included expressly in offense
               definition (default rule)
              a.           Ex: Regina v. Faulkner: ∆ set fire to ship when stealing rum. Offense definition says
                    cause/set, fire, to ship. Court held that ∆ must have mens rea of negligence for each
                    element, but did not have it for the fire (even though committing other crime)
          2. When offense definition is ambiguous about mens rea for a particular element, default rule is at
               least criminal negligence.
      ii. Model Penal Code approach (2.02(3)): Default rule is Recklessness
          1. Same terms as above – Negligently (2.02(2d)), Recklessly (2.02(2c)), Knowingly
               (2.02(2b),(7),(8)), Purposely (2.02(2a), (6))
          2. Default for ambiguity or missing mens rea term in an offense definition is recklessness (not
               negligence as in CL) (MPC 2.02(3))
              a.           Rationale: Avoid people being convicted for crimes for which they did not have the
                    mental culpability
              b.           Can still have negligence requirement under MPC, but, when ambiguous (not clear
                    what legislature intended), default is recklessness
                     i.    Note: “should know” triggers negligence mens rea
          3. Intentionally defined to mean purposefully (not just knowingly)
          4. MPC 2.02(5), like CL = proof of “higher” MR level will satisfy requirement of “lower”
          5. MPC 2.02(4): When offense definition prescribes culpability sufficient for the commission of
               an offense without distinguishing among elements, that level of culpability applies to all
               elements unless contrary purpose appears. (Trumps default rule of negligence)

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c. Mistake of Fact
      i. Really the same as not having the required mental state, but we call it mistake of fact because, in
           practice, it often comes out as a defense
     ii. Common Law & MPC same approach
          1. MPC 2.04 – Mistake is a defense if it “negatives” the culpability required
          2. Honest + Reasonable mistake (D didn’t realize and neither would a reasonable person)
               precludes liability when at least negligence for that element is required
          3. Honest + Unreasonable mistake (D didn’t realize though a reasonable person would have)
               precludes liability when at least recklessness for that element is required (would be liable under
               negligence)
          4. Ex: People v. Ryan: “A person is guilty of criminal possession of a controlled substance in the
               second degree when he knowingly and unlawfully possess: … 5. Six hundred twenty-five
               milligrams of a hallucinogen.” ∆ said he did not know the weight regarding how much
               hallucinogen was in his mushrooms. Issue over whether “knowing” applied to the weight
               element. Court holds it does, because otherwise would be strict liability. Pure weight was what
               mattered. (Note: flaw in court’s reasoning because negligence and recklessness are below
               knowledge but above SL)
          5. Ex: State v. Guest: Statutory rape. Court applied CL negligence mens rea to the age
               requirement, allowing for mistake of fact of victim’s age (Note: this is a MINORITY opinion –
               age element would be Strict Liability in most states)
          6. Note: Not a defense if ∆’s actions would constitute offense even if mistaken belief were true.
d. Strict Liability
      i. A crime that includes at least one element for which the prosecutor need not establish even
           negligence (no culpability requirement)
     ii. Rationale
          1. Deterrence – giving government greater authority/ability to control dangerous activity
          2. Grew out of the emergence of the regulatory state and expansion of what conduct amounts to
               criminal activity
    iii. Common Law Approach (majority of states): Court is likely to find that element carries SL when:
          1. Offense definition expressly provides no mental state required for the element
              a.            Ex: MPC 213.6(1): “It is no defense that the defendant reasonably believed the child
                     to be older than 10.” – Definition expressly states that reasonableness is not a defense.
              b.            Reasonable mistake is not an offense
          2. Element is part of a “public welfare offense” (PWO)
              a.            What constitutes a PWO is a balancing test – hard to define; courts have a lot of
                     discretion.
              b.            Common characteristics:
                      i.    New crimes, not a crime at common law in past
                     ii.    Have relatively low penalties
                    iii. Involve omissions rather than affirmative acts
                    iv.     Punish conduct that carries little “stigma”
                      v.    Other elements of offense constitute activity/conduct that would give notice to ∆ of
                              likely regulation (highly regulated activity) – dispensing pharmaceuticals
                    vi.     Involve activity that carries risk of widespread harm to public health or safety
              c.            Ex: Balint (violation of Fed. Statute regarding who is allowed to sell drugs)
              d.            Ex: People v. Dillard: Court holds that knowledge is not an element of the offense of
                     carrying a loaded firearm in a public place. Looks to legislative intent and public safety.
                     Knowledge not required that firearm be loaded.
              e.            Ex: Felonious Practice of Medicine without a License: Court held SL for “having
                     valid license.” Balanced new crime, widespread harm, sort of like an omission v. high
                     stigma.
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          3.  Element is a jurisdictional element: fact established SMJ for court
             a.           Ex: “Murder occurred in Davidson County”: Typically do not have to prove that ∆
                   knew or should have known that he was in Davidson County. Unanimous in every state.
         4. Element is the age or status of the victim for sex offense (“moral wrongs”): conduct would
              have been immoral even without the element – I don’t really understand this?
             a.           Ex: Regina v. Prince: Man convicted of taking girl from lawful possession of father,
                   even if he reasonably believed her to be over 16
             b.           See n.7, p. 219: if doing something immoral and unintentionally commit crime, not a
                   defense to say ignorant of existence of circumstances that constituted the crime.
         5. Element is “grading element”: element distinguishes more serious crime from less serious;
              conduct would have been a lesser offense without the element, but does not distinguish
              innocence from culpability
             a.           Ex: Delivery of 50g cocaine punishable by 10 years, delivery of 1 kilo cocaine 30
                   years. Likely SL for amount of cocaine (Contrast with Ryan case)
             b.           Ex: US v. Cox: transporting person in interstate commerce for the purpose of
                   prostitution is punishable by up to 10 years; when that person is under 18, the punishment
                   is 10 years to life. SL regarding age.
    iv.   MPC Approach – minority of states follow this approach
         1. SL only if legislative purpose to impose absolutely liability plainly appears (cannot read it in)
         2. MPC 2.05(2)(a): “unless a subsequent statute otherwise provides”
         3. NO strict liability in any other circumstances (grading, PWO, etc.)
         4. Violation results in fine not criminal punishment
e. Mistake of Criminal Law
      i. General rule: A mistake in law or ignorance of criminal law is no excuse (CL and MPC)
         1. “Mistake of law, however reasonable, is no defense to criminal liability” –MPC 2.02(9), Baker,
              Hopkins
         2. Compare with Regina v. Smith: rents apt in CL jx. Damaged floor before moving out. Statute
              was destroy damage property of another. Honestly believed he owned property. Mistake of
              property law/fact, not crim law. Reasonable to believe owned floorboards since he put them
              in.
         3. Negligence as to illegality is not an element that prosecutors have to prove
         4. Even if reasonable people would not have imagined what were doing was illegal or even if
              reasonable people interpreting the offense definition would think it does not reach what they
              were doing, still no excuse/defense.
     ii. Common situations:
         1. Did not know action was illegal
             a.           Ex: U.S. v. Baker: ∆ didn’t know trafficking in counterfeit goods was a criminal
                   offense. Conviction affirmed.
         2. Did not know statute applied because of mistake about meaning or application of one or more
              elements of the offense, when the meaning of those elements are defined in the criminal code
             a.           Ex: CLCS pg. 41
             b.           Often comes up with ∆ claims didn’t’ realize X was a controlled substance
   iii. Rationale:
         1. Otherwise law would unenforceable because too many claims that ∆ did not know of law, and
              difficult and expensive to prove/disprove
         2. Incentive to learn the criminal law (and prevents people from actively avoiding learning)
         3. Consistency – Differences in reasonableness would create differences in protection for
              victims/weak
         4. Fairness – Equal treatment for all defendants
         5. Deterrence / Criminal law is normative not descriptive
         6. Avoids corruption/collusion between criminal and advisors
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     iv.  Exceptions to the Rule
         1. Common Law Exceptions
              a.           1) Offense definition specifically requires understanding of illegality (ex: some tax
                     crimes), or
              b.           2) ∆ acted in reasonable reliance on an official interpretation of criminal law by:
                      i.   Appellate courts
                     ii.   Attorney General opinion (carries force of law in many states, similar to court
                            opinion)
                            1. Twitchell: ∆s relied on AG opinion for spiritual exception when not seeking
                                  medical care for child because of their religious beliefs
                            2. Note: not all states following CL approach will allow reliance on AG opinion
                    iii. NOT: attorneys, cops, prosecutors, lower courts
                            1. Ex: Hopkins: State’s attorney did not rise to the level of exception
                    iv.    Rationale: incentive to ensure advice is correct; curtails corruption by limiting # of
                            people who can declare law; don’t want counsel to be paramount to the law
         2. Model Penal Code (2.04) Exceptions – Federal courts tend to follow MPC
              a.           1) Offense definitions specifically requires mens rea as to existence or meaning of
                     offense, or
              b.           2) ∆ reasonably relied on official interpretation by:
                      i.   Judicial decision, administrative order, or officer charged with responsibility for
                            interpretation, administration, or enforcement of the law (DA would arguably
                            count) (much broader exception than CL)
     v. Distinguishing mistakes of criminal law v. mistakes of fact
         1. Mistake of fact involves legal concepts defined outside criminal code
         2. When an offense includes as an element that a person own or not own property, or be married
               or not married, or be a legal guardian of another, and ∆ claims mistake about ownership,
               marital status, custody, etc. treat as mistake of fact. Those legal concepts are defined OUTSIDE
               the criminal code in property and family law.
f. Intoxication
      i. General Rule: Voluntary intoxication can negate knowledge and purpose but not negligence or
           recklessness
         1. CL and MPC 2.08(1)-(3) basically the same
         2. Ex: State v. Cameron: Woman was drunk on wine, and hit a man in the head with a broken beer
               bottle. NJ SC says no jury instrux on intoxication. Self-induced intoxication is not a defense
               unless it negatives an element of the offense; ∆ must show “such a great prostration of the
               faculties that the requisite mental state was totally lacking;” more than conclusory labels of
               being drunk, but must show impairment of faculties
     ii. Voluntary intoxication is:
         1. Never a defense to crime requiring negligence or recklessness -- will not be considered as a
               basis for negating mens rea
         2. Can be raised to negate mens rea if crime requires knowledge or purpose
    iii. Effect on Rule of Practice
         1. Evidentiary Rulings: Evidence of intoxication may be excluded as irrelevant to whether ∆
               didn’t realize (was negligent) or was not aware (reckless)
         2. Attorney argument: In cases of negligence/recklessness, defense attorney may be barred from
               arguing that ∆ was too drunk to have recognized or consciously disregarded a fact or risk
         3. Jury Instructions: In cases where prosecutor must prove knowledge or purpose, jury
               instructions on intoxication will be required only if there is sufficient evidence from which a
               jury could find ∆ was too intoxicated to form requisite intent (see Cameron)
    iv.   State minority rule
         1. Voluntary intoxication is not a defense for any level of mens rea
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               a.         Montana v. Egelhoff: Montana statute states intoxicated condition may never be
                    considered in determining existence of a mental state that is element of the offense.
                    SCOTUS holds this is constitutional.
           2. Sufficient if prosecutor proves that “circumstances would otherwise establish knowledge or
                purpose but for the defendant’s voluntary intoxication”
     v.     Rationale:
           1. Greater deterrence? (but from what?)—from getting drunk and committing crime
           2. Incapacitate the dangerous?
           3. Becoming intoxicated voluntarily is the moral equivalent of recklessness as to the risk of any
                harm (but should this include death?)
           4. Removes incentive for false claims of intoxication
    vi.     Note: Mens rea has to be present at the time of the act, so prior intent but later action do not satisfy
            requirement
    vii.    Ex: Weaver (CLCS 107)


IV. CAUSATION
a. Applicability
      i. Causation only comes up when there is a harm/result element, because of blameworthiness
         1. Often when causal link is missing, charge will be lowered to “attempt”
     ii. Many criminal offenses do not contain a harm element, however
b. But For (Actual) Cause
      i. Did act actually cause death when it happened
         1. The act must accelerate the harm (e.g. person will die eventually, but murder accelerates death)
     ii. Import from tort concept
c. Proximate (Legal) Cause
      i. Common Law
         1. Functional equivalent to reasonable foreseeability
         2. Intervening Acts
              a.        NOT contributory negligence/comparative fault
              b.        If intervening act caused injury, even if voluntary or foreseeable, still guilty
                   i.   Ex: Baylor v. US: ∆ struck woman who was hospitalized for lacerated spleen. Died
                          two weeks later from negligence. Hospital negligence is reasonably foreseeable,
                          and ∆ liable for homicide.
              c.        Gross negligence or voluntary criminal acts by third parties WILL break the chain
                  (even if criminal act is foreseeable)
                   i.   Ex. People v. Stewart: Hospital decides to operate on issue unrelated to stab wound,
                          and anesthesiologist gives wrong does. ∆ not liable for gross negligence.
              d.        Will not come from reaction of victim or bystander
                   i.   Ex: Suicide because of what other person does to you does not count as intervening
                          act
              e.        Ex: US v. Hamilton: Victim hospitalized after bar fight and needs tubes to survive.
                  Wakes up and rips tubes out, asphyxiates himself. Not intervening act; there was
                  proximate cause. (most states no longer follow CL year and a day after injury rule)
     ii. Model Penal Code 2.03 (pg. 1040)
         1. Talks about proximate cause but not in traditional way
              a.        Purpose/knowledge separated from negligence/recklessness
         2. In practice, no real difference from CL
              a.        1(a): Requires “but for” causation
              b.        2(a), 3(a): Allows for transferred intent

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              c.        2(b), 3(b): Requires foreseeability: “probable result and not too remote or
                   accidental in its occurrence;” (open for the jury to decide)

V. HOMICIDE
a. Intro
      i. Statistics
         1. 16-17,000 homicides reported annually
         2. Only about 5-6,000 convicted of murder
         3. Only about 100 sentenced to death; 7% received straight probation, for an average of 5 years
     ii. History
         1. Historically: Division of homicide into Murder and Manslaughter // Murder (w/ malice, death
              penalty), Manslaughter (no malice)
         2. 1800s/Turn of Century: Division of Murder into degrees // First Degree Murder (DP available),
              Second Degree Murder, Manslaughter and Negligent Homicide
         3. Modern: Separation of Capital Murder from First Degree Murder // Death Penalty, First Degree
              Murder, Second Degree Murder ,Manslaughter and Negligent Homicide
    iii. General tiers (not uniform across all jx’s)

                                           1°
                      Premeditated and Deliberate Intentional Killings
                          Felony Murder: Enumerated Felonies

                                               2°
                           Intentional killings – no premeditation
                     Intent to cause serious bodily harm, death results
                       Depraved Heart or Extremely Reckless killing
                          Felony Murder – unenumerated felonies



                                       Manslaughter:
                          Voluntary – Mitigated or Provoked Murder
                         Involuntary – Reckless or Negligent Killing



    iv.Grading
       1. Mens rea is part of determination of grade
            a.         Premeditated and Deliberate = 1st Degree v. Intentional = 2nd degree
            b.         Intentional = Murder v. Reckless/Negligent = Manslaughter
       2. Mens rea is not whole story
            a.         Unintentional killings can be elevated to murder (e.g., felony murder)
            b.         Intentional killings can be mitigated to manslaughter (e.g., when provoked)
b. Murder
    i. First Degree: Premeditated (formed initial thought) and Deliberated (giving it a second thought
         and reaffirmed) OR Felony Murder (enumerated felonies)
       1. Ex: U.S. v. Watson: ∆ stole car, flagged down by police. ∆ points gun at Police, who says “it’s
             not worth it.” Court examines what constitutes deliberation.
            a.         Factors
                   i.  Time elapse for opportunity to premeditate (plea by cop = sufficient time lapse)
                  ii.  Evidence of Planning
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                iii.    Manner of killing
                iv.     Motive to kill
            b.          Premeditation is NOT in heat of passion or orgy of frenzy
            c.          Some time must elapse (could be seconds)
       2. Indicia of Premeditation:
            a.          Lapse of time (time to deliberate)
            b.          Prior threats of hostility (goes to intent)
            c.          Evidence of a motive (shows purpose)
            d.          Manner and circumstances of the killing (ex: stop shooting and start again, aim for
                 heart)
            e.          Behavior before the killing (ex: stalking)
            f.          Origin of the murder weapon (ex: if loaded gun brought to the scene, suggests
                 premeditated intent to use)
            g.          Ex: State v. Bingham: Man strangled woman to death, taking 3 minutes; no motive;
                 this length of time alone was insufficient to show premeditation and deliberation
            h.          Ex: People v. Garcia: Victim went to collect money owed for drug deal for the 3rd
                 time; he was unarmed; no argument, but ∆ shot & killed him; there was premeditation on
                 these facts
            i.          Ex: State v. Long: Man kills gf who is “sleeping around;” lots of evidence but
                 insufficient to establish premeditation
       3. Rationale for why premed&delib killings are “worse” than other intentional killings?
            a.          Retribution – more intent = worse
            b.          Why is random killing not worse in terms of threat to society
ii.     MPC 210.2 (a) – purposely or knowingly = murder; does not differentiate between premeditated
         and intentional murder
iii.    Second Degree:
       1. Intentional Killing – Intent to kill but no premeditation
            a.          Intentional is purpose OR knowledge as to death
            b.          Ex: State v. Long (from above)
            c.          Ex. State v. Bingham (from above)
       2. Unintentional Killings
            a.          Intent to cause seriously bodily harm, and death results
                  i.    Ex: Brown: Son beaten to death by dad.
            b.          Felony Murder (unenumerated felonies)
            c.          Depraved Indifference or Extremely Reckless killings (no respect for sanctity of
                 human life) (UNINTENTIONAL KILLING + EXTREME RECKLESSNESS)
                  i.    Common law
                          1. Conscious disregard of a EVEN MORE grave or substantial risk (than
                               criminal manslaughter), and COMPLETELY unjustifiable risk of death
                             a. Difference between this and manslaughter is one of degree
                          2. ∆ knew that his conduct posed a serious risk of death to others, but did not
                               care
                          3. Not intent, but “wait and see what happens” attitude
                             a. Ex: Driving car down crowded sidewalk; shooting gun into occupied home
                 ii.    MPC 210.2(1)(b)
                          1. Prosecution must prove “circumstances manifesting extreme indifference to
                               the value of human life”
                          2. Presumed but not proven if engaged in the forcible felonies of robbery, rape,
                               arson, burglary, kidnapping, or escape – this is as far as the MPC goes
                               towards the felony murder rule
                                                                                                          10
                  iii.   Ex: Commonwealth v. Malone: Playing Russian roulette was depraved indifference
                  iv.    Ex: Mallard (p 44 of syllabus): Woman driving drunk and high hits homeless man
                           and he goes through windshield. She parks car and leaves him in garage, knowing
                           he is injured but alive – he dies by morning. Depraved indifference
                   v.    Ex: State v. Davidson: woman was inexperienced trainer, training Rottweiler’s to be
                           attack dogs. Did not keep them fenced properly, and often escaped and terrorized
                           the neighborhood. Eventually, they killed a young boy waiting for the school bus.
                  vi.    Ex: Mutyambizi (p 43 of syllabus): Woman left child in car while she worked;
                           checked on him several times, but he eventually died. NOT depraved indifference
             d.          Intoxication and Homicide committed recklessly
                    i.   CL (majority rule) and MPC agree:
                           1. Depraved indifference murder is treated as any crime that requires (cant
                                 negate negligence) recklessness…voluntary intoxication leading to lack of
                                 awareness of risk of death does not negate mens rea. Cannot argue that ∆ was
                                 not aware.
                           2. If ∆ was too high to be aware of risk, the law will treat him as if he was aware
                               a. See Mallard (above)
                   ii.   Intoxication can negate Mens Rea for most elements except:
                           1. 2nd degree murder: Depraved Heart or Extremely Reckless Killing
                           2. Involuntary Manslaughter (but intoxication negates Voluntary manslaughter)
    iv.   Note: MPC does not have degrees, only murder or manslaughter – all murders subject to highest
          penalty, but at sentencing stage jury considers individual factors

c. Manslaughter
    i. Voluntary Manslaughter – mitigated or provoked murder (e.g., heat of passion)
        1. Common law
           a.        Elements
                  i. 1) ∆ acts in highly emotional state (actually upset – subjective)
                 ii. 2) Caused by/due to (direct link – no “cooling time”)
                iii. 3) Provocation by victim, which is both:
                      1. Legally adequate (fits within CL category), and
                      2. Sufficient to prompt a reasonable person to a state of passion/inability to
                            control violent behavior (objective)
                          a. Question is whether emotional state was reasonable (not if action was
                                reasonable – killing is never reasonable)
           b.        Legally adequate provocation
                  i. ∆ assaulted by V (with or without words)
                      1. Ex: People v. Walker: Victim begins slashing a knife at defendant and
                            friends. Defendant is cut. He throws a brick at the man’s head, knocking
                            him out. He then takes the guys knife and stabs him to death.
                 ii. ∆ witnesses V assaulting relative
                iii. ∆ witnesses spouse in adultery with X (V=spouse or X) (Courts historically
                      sympathetic to this situation)
                      1. Ex: State v. Thornton (1983): Man spies on wife, sees her in house w/another
                            man. He went in the house and tried to take pictures; he thought he saw the
                            victim coming at him, so shot “him in the ass to teach him a lesson.” Lowered
                            conviction to manslaughter b/c ∆ was in the heat of passion.
                      2. Ex: Price v. State: ∆ may not need to actually “discover, find, or see” adultery,
                            but circumstantial indications may be sufficient in some states


                                                                                                           11
                   3.    Ex: State v. Yanz: ∆ found wife alone with V and mistakenly assumed they
                         had sex; shoots and kills V. Provocation appropriate b/c elicited same
                         emotions
    c.           Never adequate provocation
            i.   V’s “mere words” or gestures
                   1. But see: Elsmore v. State: threatening words/gestures may be sufficient in
                         some jursidictions
           ii.   Injury to ∆’s property
    d.            “Cooling time” – question of fact
            i.   When highly emotional state (outrage) turns to revenge
           ii.   Ex: Ex Parte Fraley: A man’s son is killed, and the killer is acquitted. 10 months
                   later, father (∆) sees the killer (V) at drug store, shoots him w/no provocation.
                   10 months is too long for cooling time – more like a few hours or minutes, or
                   maybe a day or two at the most.
    e.           Rationale
            i.   Partial Justification – social justification for action, but not so justified as to get out
                   of killing altogether (perhaps just overreaction), so court will lessen to
                   manslaughter
           ii.   Partial Excuse – no social good, but so enraged that could not control actions
                   1. Retribution – killing less malevolent
                   2. Utilitarian – ∆ is less deterrable and dangerous
2. MPC: Acted under extreme emotional disturbance for which there is a reasonable excuse
    a.           Reasonableness (210.3(1)(b)): reasonableness of explanation or excuse shall be
           determined from the viewpoint of a person:
            i.   In the actor’s situation
           ii.   Under the circumstances as he believes them to be
    b.           CL v. MPC
            i.   MPC more subjective than CL
           ii.   MPC requires extreme emotional disturbance but abandons concept of “justification”
          iii. MPC does not require ∆ to be responding to V
          iv.    No categories – does not need to fall w/in type of “legally adequate provocation”
           v.    Explanation or excuse for EED must be reasonable – objective test—BUT
                   “reasonableness is assessed given circumstances as ∆ perceives them (not as they
                   are), and not idiosyncratic moral values, but will consider unusual sensitivities and
                   abnormal temperaments that arouse sympathy in the ordinary citizen.” (CL does
                   not consider abnormal temperaments)
          vi.    CL requires acting in fear/anger/outrage
         vii.    Provocation must be of legally adequate type that would prompt uncontrollable
                   passion in reasonable person
MPC                                        CL
   Acted under extreme                          Act in anger/fear/outrage
       emotional disturbance                     caused by V’s provocation
   Needn’t be responding to V                   of legally adequate type
   No categories                                that would prompt
   Explanation or excuse for                       uncontrollable passion in
       e.e.d. must be reasonable                    reasonable person
   Reas’s assessed given circ’s                 Reasonableness considers
       as ∆ perceives them, “in                     physical characteristics,
       defendant’s situtation” –Not                 handicaps, but not unusual
       idiosyncratic moral values,                  sensitivities, abnormal

                                                                                                         12
                but will consider unusual              temperaments
                sensitivities and abnormal
                temperaments “that arouse
                sympathy in the ordinary
                citizen”


            c.       Ex: People v. Barry: CA codified concept of only heat of passion
            d.       Application: see syllabus p. 41, problem #1
    ii. Involuntary manslaughter
         1. Common Law
            a.       Requires either Gross/Criminal Negligence OR Recklessness as to death
                  i. Gross negligence or criminal negligence as to death: ∆’s acts/omissions posed
                       unjustifiable and grave risk to human life that any ordinary person would have
                       recognized; or
                 ii. Recklessness as to death: ∆ consciously disregarded an unjustifiable and grave risk
                       to human life
                iii. Objective test: individual attributes of the defendant are not going to be considered;
                       an unjustifiable and grave risk to human life that any ordinary normal person would
                       have recognized
            b.       Criminal negligence a higher standard than ordinary negligence in tort
                  i. Difference in degree of risk: greater likelihood of harm or more substantial harm
                 ii. Commonwealth v. Welansky: Night club owner had emergency exits either blocked
                       or not labeled; fire broke out in club and 492 people died. Criminal negligence
                iii. Examples of ordinary negligence:
                       1. Rogerson hunting story (accidentally shooting woman in woods, p.396)
                       2. Failing to buckle up a child
                       3. Routine medical malpractice
                iv.  Examples of criminal negligence:
                       1. Cable v. Commonwealth: man shot hunting partner, knowing he was hunting
                             nearby
                       2. Rypinsky: Man had loaded rifle in car which discharged accidentally and
                             killed woman
                       3. Failing to buckle a child, then speeding while drunk
         2. MPC 210.3
            a.       Manslaughter requires Recklessness
                  i. No “involuntary” manslaughter; only one manslaughter under MPC – same charge
                       “voluntary” manslaughter for extreme emotional distress under MPC
            b.       Criminally negligent killings are graded down to negligent homicide
            c.       MPC 210.4 Negligent homicide
                  i. Like CL, requires more than ordinary negligence
                       1. “substantial and unjustifiable risk of death”
                 ii. Unlike CL, considers ∆’s circumstances
                       1. “Circumstances known to him” and “the standard of conduct a law-abiding
                             person would observe in the actor’s situation”
                iii.
d. Felony Murder
     i. General/Unlimited Rule:
         1.  A defendant is liable for felony murder if:
            a.       He is a participant (principal or accomplice) in

                                                                                                        13
           b.           A felony or attempt to commit a felony, and
           c.           That felony or attempt results in death
       2. Does not require mens rea for the harm element, if harm occurs during commission of a
            crime (e.g., strict liability as to death)
           a.           Could include completely accidental death, where reasonable person could not
                 foresee the death of another
 ii.    Modern trend is to move away from felony murder rule
iii.    Rationale: incentivize people who are committing felonies to be more careful, deter committing
        felonies, retribution for felonious purpose and for causing death
iv.     Common Law Limitations
       1. Grading: reserving first degree murder for enumerated felonies and grading all other felony
            murders as non-capital murders
           a.           Rationale: legislative intent as to what is worse, so limit highest punishment to what
                 legislature designates
       2. Timing: requiring that killing must occur during the commission of/attempt to commit felony
           a.           Felony begins: at point in time when ∆ could be prosecuted for attempt
           b.           Felony ends: after immediate flight when ∆ reaches place of “temporary safety”
           c.           Common factors: time, distance, fruits possessed
           d.           If accomplice is in safe place, and partner kills someone, accomplice can still be
                 found liable
           e.           Ex: People v. Gladman: Deli robbery. Immediate flight. 15 minutes and ½ mile later,
                 approached by officer in parking lot. Shoots and kills him. Still w/in commission of
                 felony.
       3. Which felonies count: enumerated felonies or felonies that are both inherently dangerous and
            independent
           a.           Inherently Dangerous
                  i.    Majority rule: dangerous in the abstract – inherently (inevitably) creates substantial
                          risk of death (more effectively deters felonious activity)
                          1. Must show felony cannot be committed without dangerous risk (every time);
                                Test: Could a person commit the felony safely? If no  inherently danerous
                          2. Ex: People v. Patterson: (p. 440) Court remanded to determine if furnishing
                                cocaine was inherently dangerous “in the abstract”
                 ii.    Minority rule: dangerous in fact – was felony actually committed in a manner that
                          created the substantial risk of death (more effectively deters violence while
                          committing a felony)
                          1. Ex: State v. Chambers: (p. 441) ∆ stole pickup truck, drunk with accomplice.
                                Drove away from dealership without lights and swerving. Killed 4 people.
                                Court says any felony can be sufficient basis for felony murder if committed
                                in a sufficiently dangerous way.
                          2. Ex: Ford v. State: ∆, convicted felon, was cleaning gun which discharged,
                                fired through wall, and killed resident in next apt. Not inherently dangerous
                                felony.
           b.           Independent Felonies (“Merger” limit)
                  i.    Lesser forms of homicide (manslaughter, negligent or vehicular homicide), and
                          felonious assault cannot serve as predicate felonies for Felony Murder
                          1. Felon must have felonious purpose other than inflicting injury
                 ii.    Rationale: otherwise, legislature’s grading system for homicide would be
                          meaningless
                          1. Barnett v. State: Court cites this rationale in determining first degree assault
                                with a garden hoe could not predicate a felony murder conviction

                                                                                                           14
                   iii.   Ex: State v. Shock: ∆ beat 5-6 year old boy, who died several days later. Court holds
                            felony cannot be predicated on manslaughter or assault.
                    iv.   Ex: State v. Lucas: Child abuse case. Abused kid left in bathtub and drowns. Too
                            close to adult abuse so court holds it is merged. (No FM)
                     v.   Examples:
                            1. Felon possessing firearm: no merger
                            2. Sexual assault, results in death: no merger
                            3. Child neglect (not abuse): no merger
                            4. Willfully discharging firearm at a house: depends on state
          4.    Felony must be the proximate cause of the death
               a.         Reasonably foreseeable consequence of the felony and non-coincidental
               b.         Adopted by most jurisdictions (both CL and MPC states)
               c.         Applies to enumerated and non-enumerated felonies
               d.         Almost a negligence standard
               e.         Ex: State v. Martin: ∆ burned trash at a house, which killed girl passed out at party.
                    Court says death must be probable consequence/reasonably foreseeable.
               f.         Ex: People v. Stamp: Armed bank robbery; owner has heart attack and dies.
                    Sufficient proximate cause for felony murder
               g.         Death of accomplice, public safety officer, and victim are always arguably
                    foreseeable
          5.    Agency Rule
               a.         In agency jurisdictions: Was killing committed by one of the felons engaged in the
                    felony?
               b.         Majority Rule: “Agency approach”: killing must be by ∆ or accomplice engaged in
                    the commission of the felony
                      i.  Ex: People v. Washington: Gas station owner killed one robber, wounded another.
                            No felony murder to surviving robber.
               c.         Minority Rule: “Proximate cause approach”: ∆ is guilty of all foreseeable killings
                    proximately caused by felonious activity
                      i.  Ex: Hickman: Innocent person killed by police when chasing robbers. Court holds
                            that death was foreseeable.
                     ii.  A minority of “proximate cause” states limit FM liability to deaths of non-felons

e. Death Penalty
     i. History // Regulation under the 8th Amendment – “evolving standard of decency”
         1. Furman v. Georgia (1972): SCOTUS strikes down death penalty; no clear majority, but largely
              the problem was that it was applied arbitrarily.
             a.          Led to two schemes by states to avoid arbitrary application:
                    i.   Mandatory death penalty for certain offenses
                   ii.   “guided discretion” statutes
         2. Woodson v. North Carolina (1976): SCOTUS strikes down mandatory death penalty statutes;
              Eighth amendment requires some degree of individuality
         3. Gregg v. Georgia (1976): Court upholds guided discretion statutes as constitutionally
              satisfactory solutions to the problems of unfettered jury discretions diagnosed in Furman
    ii. Guided discretion reconciling two competing goals: 1) preserving discretion to be lenient
          (“individualization”) and 2) eliminating discrimination and arbitrariness
         1. Requires separate sentencing phase
         2. At least one jury determination of at least one aggravating feature that differentiates it from
              other murder
         3. Departs from originalism….doesn’t look at what was intended by framers
         4. Problem: when discretion allowed, discrimination inevitably exists
                                                                                                            15
    iii.    Rationales:
           1. Needed for deterrence
           2. Needed to incapacitate the dangerous
           3. Religious or moral beliefs that just deserts for murder is death – killers deserve to forfeit lives
           4. Encourages more efficient dispositions, by plea, in murder cases
           5. Needed to provide closure for victim’s families
    iv.     Number of people going to death row and number of executions are slowing
     v.     Main criticism of application today: racial/class bias, cost and delay, risk of executing innocent
           1. Ex: McCleskey: Court rejects that statistical study would prove that racial discrimination
                existed in a specific case. Although they acknowledge that there is a statistical difference, does
                not mean that the specific prosecutor in the specific case acted with intent to discriminate –
                which is required for high standard of equal protection clause violations (requires not only a
                disparate result but also that there was specific intent to discriminate).
     vi.    No death penalty for mentally retarded (Atkins)
    vii.    No death penalty for under age 18 (Roper)
   viii.    Ex: Tison v. Arizona: Must be a major participant in felony murder and have reckless indifference.
            Criminal negligence no longer sufficient for Death Penalty.

VI. JUSTIFICATION AND EXCUSE
a. General
       i. Justification: not wrong, justified, maximizes social welfare (necessity, self defense)
      ii. Excuse: wrong but accused not responsible (duress, insanity)
     iii. Limits placed on defenses because of fear of abuse by defendant
b. Necessity (justification)
       i. Common Law
          1. Harm ∆ sought to avoid through her conduct: (obj: reasonable person standard where leg.
               silent)
              a.           Was greater than harm caused by ∆’s conduct
              b.           Was not caused by ∆’s recklessness or negligence (or any other higher mens rea)
              c.           Was clear and imminent, AND
              d.           Was not avoidable by legal means
          2. D reasonably expects her conduct will avoid imminent harm
              a.           Ex: State v. Warshow (1980): Protesters protested the reopening of a nuclear power
                    plant. Arrested and convicted of trespass; appeal on grounds of necessity to prevent the
                    harm of nuclear radiation. Harm must be “imminent”
          3. Statutes must not preclude use of defense
          4. Defense only to charges other than homicide
              a.           Ex: Dudley & Stephens: Men on lifeboat in ocean eat boy out of starvation; keeps
                    them alive long enough to be rescued. Court says necessity never a justification for
                    murder.
      ii. MPC – same as common law except:
          1. Need not be imminent
          2. If ∆ is reckless or negligent in bringing about risk of greater harm, unlike CL which would bar
               defense entirely, MPC allows the defense for crimes carrying more culpable mens rea
          3. Homicide not excluded
c. Duress (Excuse)
       i. Coercion undermines criminal’s choice to engage in act (conduct elements)
      ii. Common Law
          1. Not guilty if ∆ shows he:


                                                                                                                16
               a.          Reasonably feared (“well grounded apprehension”) imminent infliction (look at
                    proximity, time, and space; must be present danger – strict standard under CL) of death or
                    serious bodily harm to self or immediate family
              b.           No reasonable alternative to avoid feared harm other than committing crime
                    (continuous compulsion, no opportunity to escape), AND
              c.           Was not reckless or negligent in exposing himself to coercion
           2. Ex: State v. Crawford: Crack junky owed money, kidnapped person and stole things from man
               at gunpoint and assaulted him. Said dealer would kill him and son if he didn’t pay. Not duress
               because not imminent and could have escaped. Also willfully and wantonly put himself in
               situation by taking drugs.
           3. Not available as a defense to murder (Rationale: you should die before killing someone else)
           4. Objective test: even more restrictive than self-defense in many jurisdictions
              a.           Many don’t allow evidence of BWS for duress, but do for self-defense
                     i.    Ex: Pickle v. State
                    ii.    But see In re Romero
           5. Defendant cannot have “recklessly or negligently” placed himself in a coercive situation
              a.           Ex: Williams v State: ∆ was abducted by men looking to be repaid debt; led them to
                    random person’s house, which they broke into, tied down resident, and searched; ∆
                    assisted; not coercion
    iii.    MPC 2.09 – see language in box
           1. No imminence requirement
           2. No defense if ∆ recklessly placed himself in situation (like CL), but if negligent, may be
               defense to crimes requiring R, K, or P
           3. Jurisdictions differ as to whether can be defense to attempted murder.

MPC                                                        CL
“Person of reasonable firmness in his situation”           Fear must be reasonable
No imminence                                               Of Imminent
“Unlawful force against his person or another”             Death or SBH to self or family
“Unable to resist”                                         No other reasonable alternative
No def. if reckless, but negligent is def. to R, K, or P   No defense if negligent or reckless
Could be defense to murder                                 No defense to murder

d. Insanity (excuse)
     i. Generally
         1. Insanity defense has been around for a long time, is rarely raised (more often in lesser offenses)
         2. 77% of acquittals for insanity were during bench trials – juries are more skeptical
         3. If found guilty on insanity defense, will be committed to treatment facility indefinitely (treated
               just like people committed civilly)
         4. Legal standard, not medical standard
         5. Rationale for defense in light of punishment objectives
              a.           Deterrence – if ∆ doesn’t understand, punishment won’t deter him
              b.           Rehabilitation/Incapacitation – met by hospitalization and constraint in mental
                    hospital rather than prison
              c.           Retribution – when ∆ has no capacity to distinguish between right and wrong, not
                    culpable for choosing to do “wrong”
         6. When mental illness might matter:
              a.           ∆’s competency to stand trial
              b.           Past legal insanity
              c.           Plea bargaining

                                                                                                            17
           d.            To negate mens rea
           e.            To mitigate punishment at sentencing
           f.            Not guilty by reason of insanity
           g.            Guilty but mentally ill
       7. Manifestations
           a.            Delusional
           b.            Decrees from God
           c.            Stalkers
           d.            Hallucinating
           e.            Schizophrenia / Disorganized
           f.            “but its mine” – belief that things belong to them but they don’t
       8. Threshhold Questions
           a.            Did ∆ at time of crime have mental illness ruling out voluntary drug intoxication?
           b.            Did mental illness impair perceptions of reality?
           c.            Did symptoms cause act?
ii.     M’Naughten or “cognitive” test – most popular
       1. Test:
           a.            1) If, at the time of the offense, ∆ was laboring under a defect of reason from disease
                 of mind
           b.            2) That caused him not to know/understand either
                   i.    a) The nature and quality of the act he was doing, OR
                 ii.     b) That was he was doing was wrong
                          1. Ex: People v. Serravo: (p. 612) Man stabbed wife in back while sleeping
                                 because God told him to do it. Wrong measured by societal standards of
                                 morality (not legal wrong, but not purely subjective). ∆ understand knew that
                                 what he was doing was legally wrong, but not morally wrong
iii.    ALI MPC Test (4.01); “volitional” test – second most popular
       1. Test:
           a.            1) As a result of mental disease or defect
           b.            2) ∆ lacked substantial capacity either
                   i.    a) To appreciate the [criminality] [wrongfulness] of his conduct, OR
                 ii.     b) To conform his conduct to the requirements of law
       2. Easier for defendant to prove insanity defense (softer)
       3. Option of being criminally wrong or morally wrong
       4. Ex: Hinckley: Hinckley shot Reagan, but claimed he thought it would allow him to win
            affection of Jody Foster. Acquittal prompted Insanity Defense Reform Act. Changed to “severe
            mental disease or defect”
iv.     Abolition/“Mens Rea” Approach
       1. Insanity only used to determine if ∆ had requisite mens rea
       2. Test: Evidence of mental disease or defect is admissible if relevant to determining mens rea
            (e.g., if his mental illness could explain why he did not know he was killing a human).

                                                  Mens Rea M’Naughten MPC
                    Lacks capacity to             Not      NG         NG
                    understand conduct and        guilty
                    circumstances
                    Lacks capacity to         Guilty           NG              NG
                    understand
                    wrongfulness
                    Lacks capacity to control G                G               NG

                                                                                                             18
e. Self-Defense (Justification and Excuse)
     i. Generally
         1. Considered both a justification and an excuse
             a.           Justification because of idea that oppressor had it coming, and deterrence
             b.           Excuse because you are in fear, etc. so we excuse your behavior
             c.           Court in State v. Leidholm distinguished justification from excuse based on whether
                   belief or imminent, unlawful harm is true (=justification) or reasonably mistaken
                   (=excuse). Not a widely held distinction.
    ii. Common Law
         1. Use of deadly force is justified (not a crime) if:
             a.           1) ∆ honestly and reasonably believes that the use of deadly force is necessary
                   (retreat may be required)
             b.           2) To protect against what ∆ honestly and reasonably believes to be imminent death
                   or serious bodily harm, and
             c.           3) ∆ is not the aggressor
             d.           Ex: People v. La Voie: ∆ rear-ended and forcefully pushed down road despite
                   applying brakes; gets out of car and 4 drunk men get out of other car, menacingly
                   approaching him and threatening him; he shoots and kills one of them. Use of deadly force
                   justified.
         2. Assessing Reasonableness: When is ∆’s belief in necessity of force and imminence of SBH
              reasonable? What can be considered? State can choose to calibrate its test anywhere along
              spectrum of objectivity/subjectivity.
             a.           Majority CL View: right in the middle of the spectrum.
                    i.    Ex: Goetz: Man shot 4 kids on subway after 1 asked him for $5. He had been
                            mugged before. Court said reasonable because considered past experiences.
                            1. Court rejects completely subjective standard. “To completely exonerate such
                                  an individual, no matter how aberrational or bizarre his thought patterns,
                                  would allow citizens to set their own standards for the permissible use of
                                  force.”
                   ii.    In most jx, past experiences are admissible to evaluate the reasonableness
                            requirement
             b.           Minority CL #1: more objective, “reasonable man” standard
             c.           Minority CL #2: much more subjective; almost all the way to the right of the
                   spectrum. Allows jury to take into consideration unique attributes of D.
                    i.    Ex: Leidholm
             d.           Reasonableness evaluated: (1) whether use of deadly force is necessary, (2) whether
                   death or SBH is imminent, (3) whether retreat was impossible

Objective          CL                          CL Majority (Goetz)                          Leidholm                 Subjective
/-----------------II--------------------------------------II-----------------------------------II--------------------------\
Physical attributes           past experience providing “reasonable” basis for fear       reasonable to this D’s unique attributes

             3.    Imperfect Self Defense -- What if ∆’s belief in either imminence of SBH or necessity of force
                   (or danger of retreat) is unreasonable or reckless?
                  a.         Majority CL Rule: courts will allow this as “imperfect self defense” – if ∆ acted
                        unreasonably in killing another (e.g., belief re: imminence or necessity was negligent), ∆
                        would be guilty of manslaughter
                         i.  In states where manslaughter requires recklessness, unreasonable belief would
                               mitigate murder to negligent homicide

                                                                                                                               19
               b.         Minority CL Rule: Rejects concept of imperfect self defense; if belief is
                    unreasonable, guilty of murder – does not mitigate
                     i.   Ex: Goetz
           4. Retreat and Self Defense
               a.         Majority CL Rule: ∆ may “stand his ground” and need not retreat (the “true man”
                    rule)
                     i.   Possibility of retreat taken into account in assessing reasonableness of belief in
                            necessity of force
               b.         Minority CL Rule: ∆ must retreat
                     i.   If ∆ uses deadly force even though he knows that he can escape to a place of
                            complete safety, ∆ is guilty of murder and cannot claim self defense.
                            1. Except if at home – there is no duty to leave one’s “castle”
           5. First Aggressor Rule (aka “clean hands” rule)
               a.         CL: if ∆ provokes a physical conflict (even a fist fight), ∆ cannot claim “self
                    defense” if he then kills V;  ∆ = aggressor
               b.         Exception: V replaces ∆ as aggressor, and ∆ justified in using deadly force in self-
                    defense if either
                     i.   ∆’s initial unlawful aggression is not likely to lead to sbh or death (∆ is a “non-
                            deadly” aggressor), and V uses disproportionate deadly force to respond, OR
                    ii.   ∆ (deadly or non deadly aggressor) retreats – and clearly communicates retreat to V,
                            but V pursues
    iii.    MPC
           1. Similarities to CL
               a.         3.04(2)(b): requires belief that deadly force is needed to protect against SBH, death
                    (kidnapping or rape)
               b.         3.09 adopts “imperfect self defense” allowing unreasonable belief to provide defense
                    to murder but not to negligent homicide – allows reckless belief to provide a defense to
                    murder but not to manslaughter
           2. Differences from CL
               a.         3.04(1) does not require SBH/death to be imminent, only that force to protect be
                    “immediately necessary” “on the present occasion” – permits use of force before imminent
               b.         3.04(2)(b)(ii) requires retreat
                     i.   Narrows the castle exception – must retreat in own house if ∆ started conflict
                    ii.   Workplace conflicts
               c.         3.04(2)(b)(i) No first aggressor rule: Aggressor status does not deprive ∆ of self
                    defense unless ∆ started confrontation with purpose of causing death or SBH
           3. Note: “imminence” not in statute, but is implied
    iv.     Procedure
           1. Jury determines if guilty – all elements (including MR)
           2. Burden of production on ∆ to prove a not guilty by reason of insanity (usually by
                preponderance of evidence)
           3. Burden or persuasion on P for insanity

VII. ATTEMPT LIABILITY
a. Generally
      i. “Inchoate” Offense – intended harm is not completed
     ii. Always paired with an “object offense” (“attempted [X]”)
    iii. Punishes creation of risk
    iv.  Conduct and mens rea for attempt liability is different than that required for guilt of the completed
          offense

                                                                                                             20
     v.   Punished less severely than the completed offense in most states (often half of offense or one grade
           less); MPC imposes equal punishment, except for the most serious offenses
b. Mens Rea
      i. Ex: State v. Lyerla: Man shoots into pickup with 3 girls in it; Murder 2 in state requires
           recklessness; court says one can not attempt to do a reckless crime
         1. This is majority view
     ii. Steps
         1. Determine elements of OBJECT (completed) offense
         2. Determine which are conduct or result elements, and which ware fact circumstance elements
         3. Determine mens rea for each element of the object offense
         4. Determine mens rea required for attempt
    iii. Common Law
         1. Conduct and Result – Purpose
         2. Fact Circumstance
              a.          Majority Rule: at least Knowledge (strict liability does not apply)
              b.          Minority Rule: same level as object offense
    iv.   MPC 5.01
         1. Conduct – Purpose
         2. Result – Purpose/Belief
         3. Fact Circumstance – same as object offense
         4. Note: if arguable if element is result or circumstance, argue both
c. Conduct
      i. Generally
         1. How far along path the completed crime must the ∆ go?
         2. Has there been enough to justify criminal conduct?
         3. Distinguish between attempt (punishable) and preparations (not)
         4. Punishes risk creation and guilty mind
     ii. CL General Rule
         1. Unequivocality Approach
              a.          “converted intent into resolute action”
              b.          Punishes intentions once they become clear to others; actions “manifest” crime
                    i.    Evidence of another intention, even if also criminal, enough to say that it’s not far
                            enough
              c.          If act is ambiguous or unclear whether they are going to commit a crime or which
                   crime they will commit, not enough for attempt
              d.          Ex: United States v. Jackson: Accomplice disclosed bank robbery plan to police; FBI
                   surveillance observed the get away car at bank at time and date specified; sufficient
                   evidence for attempted bank robbery
              e.          Ex: United States v. Buffington: ∆’s casing a bank, without the admissibility of
                   evidence from a police informant, is insufficient evidence for attempted bank robbery
         2. [Dangerous] Proximity Approach
              a.          Punishes only conduct that gets dangerously “close” to crime
              b.          Ex: People v. Rizzo: ∆s driving around, armed, looking for the payroll man they were
                   going to rob, but never found him and he wasn’t anywhere around when they were
                   arrested; not guilty of attempt b/c didn’t know who they were going to rob; no geographic
                   proximity
              c.          Hardest for prosecutor to prove
              d.          Doesn’t have to meet last-act rule
    iii. MPC General Rule (5.01 – p.1058)
         1. Substantial step (examples listed) that strongly corroborates intent to commit object
               offense/criminal purpose
                                                                                                                21
               a.         Lying in wait, searching for or following the contemplated victim of the crime;
               b.         Enticing or seeking to entice the contemplated victim of the crime to go to the place
                   contemplated for its commission;
             c.           Reconnoitering the place contemplated for the commission of the crime;
             d.           Unlawful entry of a structure, vehicle or enclosure in which it is contemplated that
                   the crime will be committed;
             e.           Possession of materials to be employed in the commission of the crime, which are
                   specially designed for such unlawful use or which can serve no lawful purpose of the actor
                   under the circumstances;
             f.           Possession, collection or fabrication of materials to be employed in the commission
                   of the crime, at or near the place contemplated for its commission, where such possession,
                   collection or fabrication serves no lawful purpose of the actor under the circumstances;
             g.           Soliciting an innocent agent to engage in conduct constituting an element of the
                   crime.
         2. Lower standard than CL rules – doesn’t require “dangerously close;” closest to “bare desire” on
              spectrum. Do not need to prove exactly which crime. Easiest test to prove.
    iv.   Rationale: Setting conduct requirement early allows for earlier police intervention; late permits the
          ∆ to have an opportunity to change his mind (locus poenitentiae)
     v. Ex: Philips (in CLCS): not convicted, CL jx.
d. Abandonment/Renunciation
      i. Common Law
         1. NOT a defense
         2. Once sufficient act for attempt is committed, crime of attempt is complete
         3. “Present virtue cannot wife away past crime.” (Staples)
         4. Ex: People v. Staples: Mathematician rented apt above bank vault, and began drilling holes in
              the floor to rob bank, then gave up, stopped paying rent for apt; abandonment not a defense
     ii. MPC
         1. IS a defense if complete and voluntary
         2. Cannot be because of fear or apprehension or some indirect interference, but should be
              motivated by conscience
e. Impossibility
      i. Factual Impossibility
         1. CL (majority) and MPC 5.01 the same
             a.           Factual impossibility is no defense to attempt
             b.           Rule: ∆ is guilty if, given the factual circumstances as ∆ believed them to be, he
                   would have been committing a crime
             c.           What matters is whether the facts as ∆ believed them to be constituted an offense that
                   the legislature has decided to punish
             d.           Ex: People v. Dlugash: Man shoots other man after seeing his friend shoot and kill
                   him. Not guilty of murder because person was already dead. Court rejects defense of
                   factual impossibility – if you thought he was alive, that’s good enough. Also said ∆ had
                   mens rea because shot in head.
             e.           Ex: People v. Thousand: Man thought he was sending picture of crotch in internet
                   chatroom to an underage girl, really sent to cop who was setting him up. If facts has been
                   as he thought they were→ crime. Attempt. Had gone far enough because in lot at place,
                   with teddy bear.
             f.           Ex: United States v. Yang: ∆ attempted to purchase a non-existent trade secret in a
                   sting operation; he believed it was real trade secret; guilty of attempt
             g.           Rationale: Those who are prepared to and attempt to engage in activity the
                   legislature has prohibited as criminal should be deterred; deserve punishment for acting
                   wrongfully, and are dangerous
                                                                                                               22
              h.         Under MPC 5.05(2) if belief that action is going to cause harm or death is so
                   ridiculous (voo doo), court may mitigate down to lesser offense. (not under CL)
     ii. Pure Legal Impossibility
         1. Rule: A ∆ cannot be convicted of attempt if, given the factual circumstances as ∆ believed
              them to be, there would have been NO CRIME.
         2. If the facts as ∆ believed them to be did not constitute an offense that the legislature had
              decided to punish, there is no basis for punishing D.
         3. Ex: ∆ refuses to render aid to V, believing he is violating a new “good Samaritan” statute, but
              there is no such statute = No attempt liability.
         4. Believing something is illegal doesn’t make it so
         5. Rationale: Those who engage in an activity that they think is criminal but that the legislature
              has not prohibited, need not be deterred, do not act wrongfully, and do not require
              incapacitation.
f. In sum...what ∆ believes about the facts matters; what ∆ believes about the law does not.
      i. Mistake of Fact v. Factual Impossibility
         1. Mistake of fact – no mens rea
         2. Factual Impossibility – criminal believed something was the case

                    Age of Consent is 18 years old
                   Age of recipient in
                                    17                     19
                   fact 
                   Age ∆ believes
                     |
                     V
                   17                    Complete Off:     Complete Off: NG
                                         G                 Att: G
                                         Att: G            *Factual Impossibility*
                   19                    Complete Off:     Complete Off: NG
                                         NG                Att: NG
                                         Att: NG
                                         *Mistake of
                                         Fact, so no MR*

                    Age of consent is 16 years old
                   Age of recipient in
                                    17                     19
                   fact 
                   Age ∆ believes
                     |
                     V
                   17                    Complete Off:     Complete Off: NG
                                         G                 Att: G
                                         Att: G            *Factual Impossibility*
                                         *Mistake of
                                         Law, doesn’t
                                         matter*
                   19                    Complete Off:     Complete Off: NG
                                         NG                Att: NG
                                         Att: NG
                                         *Mistake of
                                         Fact, so no MR*

                    Defendant believe age of consent is 21 years old, actually is 18
                   Age of recipient in
                                    17                19
                   fact 

                                                                                                          23
                  Age ∆ believes
                    |
                   V
                  17               Complete Off:       Complete Off: NG
                                   G                   Att: G
                                   Att: G              *Factual Impossibility*
                                   *Mistake of
                                   Law, doesn’t
                                   matter*
                  19               Complete Off:       Complete Off: NG
                                   NG                  Att: NG
                                   Att: NG             *Legal Impossibility*
                                   *Mistake of
                                   Fact, so no MR*

VIII. ACCOMPLICE LIABILITY
a. Generally
       i. Derivative liability, sort of like attempt -- look at principal's offense (what someone else is doing) to
           meet the elements/requirements of liability
          1. Like attempt, accomplice liability is always assessed with reference to a particular crime
              a.            Here it is the principal's offense
      ii. Older categories of accomplices obsolete in most jx - now only:
          1. Principal
          2. Accomplices
          3. Accessories after the fact - usually receive lesser punishment
b. Punishment
       i. Accomplices and principals are subject to the same punishment; accessories after the fact receive
           lesser penalties in most states
      ii. Accomplices are convicted of the same offense and in the same manner, but just under an
           "accomplice theory"
          1. Exception: homicide (or capital punishment too)?
c. Conduct requirement
       i. Common Law
          1. General Rule: The defendant must engage in act (or omission when duty to act) that provides
               actual assistance or encouragement to Principal
          2. Mere presence is not enough, unless presence and failure to act would be perceived by the P as
               encouragement and assent
              a.            Ex: State v. Walden: 2 parents, presence of one suggested that they approved when
                     second parent beat child with belt; failure to stop it expressed consent to the action
          3. ∆'s act or omission must provide actual encouragement or assistance to the principal (no
               attempted accomplice liability at CL)
              a.            Ex: A lookout who never sees anything is still an accomplice – gives P mental
                     assurance
          4. Causation (if there is a harm element (only required between P's act and harm; A's act need not
               cause harm - A can be an accomplice even if P would have committed the offense without A's
               aid)
              a.            Ex/Practice: North Dakota v. Helmenstein, apply CL conduct rule for accomplice
                     liability
                      i.    Alan - suggested the idea, broke in to store // Burglary as principal
                     ii.    Barbara - "Good, bring me back some bananas" // Accomplice
                    iii. C - said nothing during planning, asleep at return // ? Depends on relationship?

                                                                                                                24
                   iv.    Duwayne - served as lookout // Accomplice
                    v.    E - "great idea!" // Accomplice - encouragement
                   vi.    Floyd - asleep during plan, helped with story for police after return // Accomplice
                           After the Fact (old term?)
     ii.  MPC 2.06(3)
         1. Similar to CL except: If doesn’t actually aid, can still be convicted of being an accomplice
              2.06(3)(ii)
             a.            If you attempt or agree to aid, then still guilty as accomplice
         2. Broader
         3. Ex: Assume changed facts from ND case: Duwayne not present during planning, overhears
              later, tells no one but stands lookout with nothing to see. No actual aid (he didn’t embolden
              them by his assistance, he didn’t really help, they didn’t know): No CL liability, Yes MPC
              liability
    iii. Hard stuff…
         1. (1) Attempting to Aid a completed offense
             a.            CL no accomplice liability for attempting to aid a completed crime because no actual
                   aid
             b.            MPC Liability for attempting to aid a completed crime (2.06(3))
         2. (2) Attempting to aid a "Completed" Attempt
             a.            CL no liability because no actual aid
             b.            MPC yes liability b/c person attempting to aid would be guilty of the attempt
                   (2.06(3)
         3. (3) Actually aiding a "completed" Attempt
             a.            Guilty of the attempt as an accomplice under both CL and MPC
         4. (4) Actually aiding or attempting to aid an "incomplete" attempt (When P does not get past
              preparation) - No liability on part of principal.
             a.            CL neither the principal nor his assistant would be guilty of attempt
             b.            MPC person would be guilty of attempt. 5.01(3). Just as dangerous as a person
                   whose principal did not commit the offense
             c.            A lot of states have not adopted this because it's counterintuitive
         5. Rationale: Person who helps is just as dangerous as principal
         6. Note: Can aid someone without them knowing (ex: distracting police, etc.). Principal need only
              know for the element of encouragement.
d. Abandonment
      i. Common Law: Communicate withdrawal to principal in sufficient time for crime to be abandoned
          and makes good faith effort to neutralize any aid given.
     ii. MPC 2.06(6): must terminate complicity prior to commission AND wholly deprive of effect OR
          report to law enforcement in a timely manner OR make proper effort to prevent commission of
          crime.
    iii. Rationale: broader than abandonment for attempt
    iv.   Rationale: Creates incentive to abandon (similar to attempt in MPC)
     v. Under MPC, timely warning means “as soon as possible” – needs to be before the commission of
          the crime, in time for law enforcement to stop.
e. Mens Rea
      i. Heightened mens rea for conduct elements (like attempt) – knowledge not enough. Must act with
          the desire/intent/purpose that the principal engage in the conduct of the offense
         1. Rationale: worse that you want offense to happen...”aiding” suggests purpose
     ii. Ex: People v. Beeman: Two men robbed the sister-in-law of ∆, and ∆ had given them information
          about the house; no indication that he gave them this information with the intent to help with the
          robbery, so not an accomplice

                                                                                                                25
 iii.    Ex: State v. Peoni: ∆ sold counterfeit money to one person, who sold to another; not an accomplice
          because although he was aware it would be resold, he did not care what the person did with it after
          he sold it to him
 iv.     Ex: Backun v. United States: ∆ sold stolen silverware to a man who the sold them in another state;
          court said it didn’t matter if he intended for the silverware to be sold across state lines, but it is
          sufficient that he knew it probably would be sold there.
  v.     If conduct element is undefined, Accomplice does not have to envision specific method of causing
          harm as long as has desire/purpose/hope for crime to be completed (Mondello)
 vi.     Accomplice MR Elements under CL
        1. Conduct: PURPOSE
        2. Circumstances: Majority requires the same as principal offense
        3. Result:
             a.           Majority: Same as principal offense (State v. Foster)
             b.           Minority: Purpose (State v. Eiszweiler)
vii.     Accomplice MR Elements under MPC 2.06(3)(a):
        1. Conduct: Purpose
        2. Circumstance: Same MR as principal
        3. Result: Same MR as principal
viii.    Exception under CL, accomplice liability for ADDITIONAL crimes may require only negligence
          (note on p. 750)
        1. Natural and probable consequences doctrine ("In for a dime in for a dollar")
             a.           A is accomplice to P's crime X (wanted P to commit X and help P do so), but P also
                   committed crime Y. A is an accomplice to crime Y if Y was a reasonably foreseeable
                   outcome of Ps commission or attempt to commit X
                    i.    This is the rule in about 20 states
                   ii.    MPC HAS REJECTED THIS.
        2. If you are INDIFFERENT as to whether or not the crime is committed, you will likely be found
              guilty of facilitating but not as an accomplice
        3. If he had the purpose/aim/hope that the principal would engage in some conduct that created
              the requisite risk of result, doesn't matter if they didn’t want him to do the exact nature of what
              he did (ex: if he wanted him to beat him up with a bat, not shoot him)
 ix.     Revisit Mondello
  x.     Role of Principal’s Guilt
        1. Old Rule at CL (no longer enforced): Accomplice liability was entirely derivative of principal's
              offense. If P not guilty, A cannot be either -- there can be no "accomplice" to an offender unless
              there is first a guilty offender.
        2. Current CL rule: Generally, accomplice liability for crime X is possible for A so long as
              prosecutor can prove at A's trial that someone other than A committed crime X, by proving all
              of the non mens rea elements of crime X beyond a reasonable doubt.
        3. If principal is not tried, A can be still be found guilty.
 xi.     Variations
        1. If principal is not convicted of crime, accomplice still can if they have the requisite MR.
        2. Accomplice can be liable to an unknown principal.
        3. Accomplice cannot be held liable
        4. If principal found not guilty because a non-mens rea element is not proven, prosecutor can try
              again with accomplice (no risk of double jeopardy bc different person)
xii.     MODEL PENAL CODE
        1. 2.06(7): accomplice may be liable "upon proof of the commission of the offense and of this
              complicity therein, though" P "has not been prosecuted or convicted...or has immunity...or has
              been acquitted.
        2. 2.06(2)(a) Exempt principals are not exempt if use another to commit
                                                                                                                 26
           3.   Rationale: Just because principal lacks mens rea, not a reason to acquit accomplice
           4.   2.06(5): legally incapable can still be guilty
               a.          Also guilty under CL
   xiii.   “Innocent agent” rule or the “perpetration by means” doctrine: one who manipulates a child or a
            lunatic into committing a crime, or forces an otherwise responsible person to commit a crime under
            duress, may be held liable as principal.

IX. CO-CONSPIRATOR LIABILITY
a. Generally
       i. Conspiracy is both a separate inchoate offense (something like attempt) AND a theory of liability to
           hold a person accountable for the crimes of coconspirators (something like accomplice liability)
      ii. It is usually easier for the government to prove conspiracy to commit a crime than it is to prove an
           attempt to commit that crime
     iii. It is also usually easier for the government to prove liability for another’s offense as a co-
           conspirator, than it is to prove liability as an accomplice
     iv.   Rationale: conspiracy can be punished in additional to substantive crime
          1. Criminal law assumes that group planning poses a special danger; increase probability of
                criminal conduct; incites large crowd → danger
b. Agreement required
       i. No direct evidence required, can infer
      ii. Ex: Griffin v. State: Police officers reported to the scene of a car accident, where they were attacked
           and assaulted by a group of people around the accident; despite that there was no proof that the
           mob got together and made an actual agreement, can infer conspiracy from proof of
           fact/circumstances that would indicate conspiracy
c. Mens Rea
       i. To be convicted of conspiracy, ∆ must have had as his purpose the commission of the unlawful act:
           purpose as to conduct and result elements (same as attempt), and the same mens rea as object
           offense requires for circumstance elements (less than attempt)
      ii. Distinguishing knowledge from purpose is the challenge here –
          1. Ex: People v. Lauria: ∆ clearly knew that people were using his phone messaging service for
                prostitution, but he lacked intent/purpose because he was indifferent about the use
          2. Intent may be inferred from knowledge when...
               a.           Purveyor of legal goods for illegal use has acquired a stake in the venture
               b.           No legitimate use for goods or service exists
               c.           Volume of business is grossly disproportionate to any legitimate demand, or when
                     sales for illegal use = high proportion of the seller’s total business.
          3. In Lauria, prostitutes only made up a small number of clientele, no intent inferred.
     iii. Need to show that ∆ cares whether or not the crime is committed
          1. Ex: Morse: sells an empty plane for double the value, in cash w/out FAA documentation. Court
                infers purpose because payments in installments (he has a stake in the successful smuggling of
                drugs) and didn’t register plane.

                                         Attempt                    Conspiracy
                    CONDUCT              P                          P
                    RESULT               P                          P
                    FACT                 K                          SAME
                    CIRCUMSTANCE

d. Bilateral v. Unilateral Conspiracy (“Plurality Requirement”)


                                                                                                              27
      i.  Common Law: At least two people must agree to commit a crime and intend that the crime is
          committed – undercover agents don’t count
    ii. MPC 5.03: permits “unilateral” conspiracy - it is immaterial to the guilt of a conspirator whose
          culpability has been established that the person or all of the persons with whom he conspired had
          not been or cannot be convicted.
e. Overt Act: Attempt and Conspiracy Compared
     i. Ex: State v. Verive: Woodall paid ∆ to go to Galvin’s home and beat him to dissuade him from
          testifying. ∆ can be convicted even if Woodall is not convicted.
         1. Not the same offense if each crime contains an element that is not included in the other.
         2. Act in attempt needs more progress in furtherance of a crime.
         3. Conspiracy only needs an overt act (need not be almost at point of committing crime/clear
              which crime is going to be committed)
         4. Over act need just be consistent with agreement by any one of the co-conspirators
f. Abandonment
     i. Common Law: Even if withdraw, still liable for crime of conspiracy itself since it is the agreement
          not the completed crimes that constitute the offense.
    ii. MPC 5.03(6): Defense only if “thwarts success of the conspiracy under circumstances manifesting
          a complete and voluntary renunciation of his criminal purpose.”
g. Pinkerton liability for acts of co-conspirators (only under CL, not MPC)
     i. General rule: ∆ is guilty of C’s offense (Y) if:
         1. ∆ was a member of a conspiracy with C to commit crime (X) at the time C committed crime Y
              AND
         2. Crime Y was either in furtherance of or a reasonably foreseeable consequence of the conspiracy
              to commit crime X.
    ii. Pinkerton liability v. Accomplice liability (CL): Pinkerton is much broader

                 PRINCIPALS’            ACCOMPLICE         PINKERTON
                 OFFENSE
                 CONDUCT                P                  N
                 RESULT                 SAME               N
                 FACT                   SAME               N
                 CIRCUMSTANCES

    iii.    Do not need to charge conspiracy separately, but must prove it existed.
    iv.     Withdrawal as a defense to Pinkerton liability?
           1. Common Law: abandonment is a defense to subsequent crimes committed in furtherance of
                the conspiracy by former co-conspirators, but ∆ must communicate withdrawal to each co-
                conspirator.
           2. MPC: no Pinkerton liability; Uses Accomplice Liability
     v.     Ex: United States v. Diaz: during drug trafficking, ∆ was convicted of conspiracy to use a firearm
            under Pinkerton, even though he did not have a firearm on him; use of a weapon is a natural
            consequence of high value drug deal
    vi.     EXCEPTION to Pinkerton: conspirator may be found guilty of substantive crime committed by
            co-conspirator UNLESS that crime could not be reasonably foreseen as a necessary or natural
            consequence of the unlawful agreement.
           1. Conspiracy: co-conspirator (responsible for all acts reasonably foreseeable; responsible for
                more than just the principal)
           2. Aiding and Abetting: natural and probable cause; aiding and abetting (still must establish that
                there is at least one crime accomplice desired principal to commit and only responsible for
                additional crimes of that person)

                                                                                                             28
           3. Felony Murder: has more restrictions; here there are no restrictions EXCEPT foreseeability.
    vii.    Sentence is same as principal
   viii.    Need to find a common shared goal between all conspirators otherwise you have separate
             conspiracies.
    ix.     When is an accomplice not a co-conspirator?
           1. When there is no agreement (principal did not know about the accomplice).

X. RAPE
a. Typical Rape Statute
      i. (1) Vaginal Intercourse (conduct)
     ii. (2) Without consent of the Victim (circ.) (non-consent)
    iii. (3) by Force or Threat of Force (circ.)
b. Force Element
      i. OCL: Brown – girl in farm: Standard was “utmost resistance” required
     ii. CL: Barnes – girl gets high, at gate, rearing back: Must show force
         1. Modern trend is no longer requiring a showing of resistance but only a genuine and reasonable
               fear of bodily harm (in addition to penetration)
         2. Some states extend the force element not to just imminent harm, but future harm against that
               person, or even against another person like a family membe
    iii. Why retain force as an element?
         1. Proves non-consent by V
         2. Proves D’s mens rea
         3. Grading
c. Non-Consent typically read into the statute
      i. Smith: person who “compels another person to engage in sexual intercourse by the use of force, or
           the threat of force, which reasonably causes such person to fear physical injury.”
     ii. Compels/Coerces = means need to prove lack of consent
    iii. Burden is on Prosecution to prove that words or conduct of victim and ∆ would NOT justify a
           reasonable belief that she had consented. (Negligence standard in CL; Recklessness in MPC)
d. Defendant’s Mens Rea
      i. Must prove ∆ did not actually believe the person consented (knowledge) OR that belief of consent
           was unreasonable (reckless)
     ii. Common law
         1. By element
              a.           Intercourse
                     i.    Negligence: reasonable person should have realized he was having intercourse
              b.           By Force
                     i.    Negligence: reasonable person should have realized force employed
              c.           Without consent
                     i.    Negligence: reasonable person should have realized victim was not consenting
    iii. MPC
         1. Mens rea by element
              a.           Male defendant
                     i.    Recklessness
              b.           Intercourse
                     i.    Recklessness
              c.           Female victim
                     i.    Recklessness
              d.           Not wife
                     i.    Recklessness
              e.           Compel (non consent)
                                                                                                         29
                    i.   Recklessness
              f.         By force or threat of imminent serious bodily harm, death, or extreme pain
                     i.  Recklessness
e. Alternatives for Non-Consent (Certain circumstances do not require proof of consent)
      i. Minority (Age) = no consent [all jx]
     ii. Unconscious = no consent [all jx]
    iii. Mental Illness, Involuntary Intoxication = no consent [all jx]
         1. CA goes farther...any intox of victim ∆ should have been aware
    iv.   ∆ VOLUNTARILY intoxicated victim
     v. Deceit [few jx]
         1. Convinces V that something else is happening
         2. Person believes rapist is spouse based on inducement by artifice, pretense, or concealment by D
    vi.   Rape by threat of non-bodily harm [few jx] – “won’t graduate if don’t have sex with teacher”
   vii.   Rape by threat of future bodily (or non-bodily) harm [fex jx]
f. MTS case: requires AFFIRMATIVE consent




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