Criminal Procedure Outline; Levine

CRIMINAL LAW-LEVINE I. INTRODUCTION ►NATURE, SOURCES, LIMITS OF THE CRIMINAL LAW - American criminal law source = English common law; now governed by statutory law - crime = anything which is called a crime by society moral element/wrong State v. Defendant INTENT + ACT = CRIME - criminal penalty = social condemnation & physical confinement the more morally culpable you are, the harsher the punishment - MPC – set of statutes for criminal law; model for legislatures to follow; no authority ACTUS REUS [act]  MENS REA [intent]  CAUSATION - PUNISHMENT 1. Retribution – D deserves to be punished 2. Deterrence – utilitarian 3. Rehabilitation – correct criminal behavior 4. Incapacitation – prevent D from causing further harm II. ACTUS REUS ►VOLUNTARY ACT - ACTUS REUS = physical part of the crime (law does not punish bad thoughts alone) VOLUNTARY ACT/conduct + harmful result PERSON MUST VOLUNTARILY COMMIT THE CRIME whether D is conscious of act; coercion not addressed - INVOLUNTARY ACT CANNOT INDUCE GUILT: - possession ≠ act, unless D knew of his control of item ▪ intoxicated man forced in public place by police officers  not voluntary, no actus reus ▪ conditioned response = act so rapid it‟s automatic, in response to certain stimulus defendant military father killed son while intoxicated under conditioned response valid defense, but requires sufficient evidence ▪ person unconscious at time he commits criminal act is not responsible no mental state or voluntary act existed does not apply to VOLUNTARILY INDUCED UNCONSCIOUSNESS – drug/alcohol ▪ automatism = existence in person of behavior which he is unaware of and has no conscious control over can be asserted as defense to crime ▪ extending period of actus reus  D in car crash after seizure; guilty for taking risk 1 ►OMISSIONS - UNDER SOME CIRCUMSTANCES, OMISSION [FAILURE TO ACT] CAN BE CONSIDERED A CRIME - LEGAL DUTY (may give rise to criminal duty) vs. moral duty - omission is NOT AN ACT OMISSION = WTHHOLDING OF A BENEFIT - Duty + Omission + Death (can) = Manslaughter ▪ Kitty – stabbed to death in city; moral obligation ≠ legal responsibility ▪ Barber v. Superior Court doctors‟ cessation of life support to vegetative patient is not an affirmative act but a withdrawal/omission of further treatment holding treatment vs. actively harming someone NO CRIMINAL LIABILITY FOR FAILURE TO ACT UNLESS THERE IS LEGAL DUTY TO ACT active vs. passive euthanasia - instances where FAILURE TO ACT CONSTITUTES BREACH OF LEGAL DUTY: 1. statute imposes duty 2. certain status relationship 3. contractual duty 4. voluntarily assumed care 5. create risk of harm to another ►SOCIAL HARM - ESSENCE OF CRIME - result crimes = law punishing person for result of acts/omissions - conduct crimes = law prohibits dangerous behavior; punishing conduct itself - attendant circumstances = part of actus reus of offense condition that must be present in conjunction w/prohibited conduct/order in order to constitute a crime 2 III. MENS REA - MENS REA = GUILTY MIND, CRIMINAL INTENT, GUILTY PURPOSE actus non rule - act doesn‟t make doer guilty unless mind is guilty criminal law‟s mantra if individual did not mean for harm to take place, no sense punishing him culpable mental state – levels of awareness & intentionality Broad Meaning = “culpability” meaning guilty mind, vicious will, morally culpable state of mind actus reus + morally blameworthy state of mind = guilt Narrow Meaning = “elemental” meaning mental state expressly required by definition of offense applied in MPC § 2.02 – most influential section prove that D committed each material element of charged offense w/particular state of mind required in definition of that crime - Utilitarianism = deter people from acts detrimental to society - Retributive = moral culpability; one must receive retribution for wrongful act ►GENERAL ISSUES IN PROVING CULPABILITY - burden on prosecution to prove guilty beyond reasonable doubt - STATE OF MIND UNDER MPC: 1. purposely – conscious object/goal to achieve conduct/result 2. knowingly – certain of what will happen; willfully blindness = knowingly 3. recklessly – unjustifiable risk; conscious disregard; subjective min. level 4. negligently – ignorant disregard; should be aware of risk; TARP aware - INTENT = person intends or acts intentionally or w/intent to accomplish result when his conscious objective or purpose is to accomplish that result or engage in that conduct can be inferred from circumstances of situation do not need to prove motive – but motive can prove sufficient intent & determine sentencing - General Intent = (recklessly) = maliciously only need to prove actus reus was performed in morally blameworthy manner ; culpability; D need not intend consequences; lowest level of mens rea - Specific Intent = (purposely) offense in which particular mental state is in definition of crime ; elemental 3 ▪ fight at high school party, D strikes victim in face w/wine bottle => severe injuries D claims he meant to cause harm, but not permanent disability had conscious objective or awareness that harm was practically certain to be caused - natural-and-probable-consequences: a person intends consequences of his actions ▪ D employed minor to strip at her club – D claims no knowledge of girl‟s age D acted recklessly but not knowingly statute conviction based on knowingly - Malicious Intent = relate directly to harm/evil sought to be prevented - Attendant Circumstances = proof that certain circumstances existed at time of act - level of mens rea is same for all material elements of an offense unless otherwise stated Mens Rea Standards - Regina v. Cunningham D unlawfully & maliciously asphyxiated neighbor by stealing gas meter & thereby allowing gas to steep into victim’s room purposely  D wanted neighbor to inhale gad bc he wanted her to suffer knowingly  D knew that it was virtually certain that she would inhale recklessly  D did not know for sure that she would inhale gas but he considered possibility and took meter anyway [minimum level] negligently  D did not think of possibility that she would inhale but TARP would have realized significant risk - TRANSFERRED INTENT D intends to kill X, but kills Y instead if proven that D killed human being, actus reus of offens has occurred D possessed required mens rea; therefore, D guilty – intent transferred engage in crime w/both intent + act => responsibility for consequences ►STRICT LIABILITY OFFENSES [minor regulatory offense w/minimal punishment] - some offenses DO NOT POSSESS MENTAL-STATE ELEMENT [EXCEPTION] must only prove actus reus - generally rejected by MPC - disfavored - D guilty of crime even if he honestly/reasonably believed his conduct was proper - generally “attendant circumstance” element 4 1. public-welfare offenses : light offenses that do NOT require mens rea activities that can harm public health/safety/welfare i.e. speeding 2. common law morality crimes : i.e. statutory rape; adultery - mistake of fact not a defense, bc there is no mens rea requirement to negate - mens rea probably not required IF: 1. punishment of wrongdoer outweighs regulation of social order 2. penalty is light - used for offenses that present high volume of cases to cts - either prosecution must prove intent, or intent is irrelevant ►MISTAKE AND MENS REA -MISTAKE OF FACT - can potentially negate elements of mens rea 1. Reasonable – subjective 2. Good Faith - mistake of fact or ignorance is a defense when it shows that D did not have mens rea for material element of crime must determine material elements of crime first ▪ D stole wooden beam off construction site thinking they were abandoned acquitted bc required mental element of crime (larceny requires intent to steal) was negated by honest mistake of fact no intent to steal, no mens rea, no crime ▪ if crime to knowingly receive stolen goods D buys stolen goods but is unaware at time that they are stolen D‟s mistake => no necessary mens rea => defense Exception: - “moral wrong” doctrine – even if D‟s mistake of fact is reasonable his intentional commission of an immoral act may serve as prerequisite to justify convictions ignorance/mistake of law ≠ defense when D would be guilty of another offense had situation been as he supposed 5 -MISTAKE OF LAW - NOT an excuse under common law - by virtue of living in society, should know conduct expected of you - don‟t want to place premium on ignorance - need not be reasonable - mistaken belief that violates different law - no cultural defense - no defense for misreading statute Exception: - “legal wrong” doctrine – if D‟s conduct, based on facts as he believed them to be, constitute a crime, he may be convicted of an even more serious offense ▪ D brought gun to nightclub thinking statute gave him right to do so as a prison guard - Public Policy Consideration mistake of law as defense would encourage ignorance/abuse responsibility of citizens to go out & learns laws – utilitarian principle - must establish statute permitted conduct, but was later found to be erroneous {so only D not mistaken about law can use mistake of law as defense} - Exceptions  where Mistake of Law = Defense 1. D officially mislead as to the law 2. D does not have necessary mens rea bc ignorance/mistake 3. D not received requisite knowledge of law Lambert Exception (D failed to register in new state): 1. D‟s conduct passive 2. no action notice of law 3. violation involves regulatory offense 6 IV. CAUSATION - arises in context of crimes requiring specific intent [i.e. Homicide] - Actual Cause - Proximate Cause - Foreseeability - Intervening Acts ►ACTUAL CAUSE - CAUSATION = antecedent but for which harm would not have occurred - BUT-FOR TEST – if not for D‟s actions, harm would not have occurred at that specific time; (can always blame another) ACCELERATION actual factual cause of death exception: substantial factor {A & B shoot C at same time} „was D a link in chain of causation‟ ►PROXIMATE CAUSE (Legal Cause) - CRIME requires Actual & Proximate cause - doctrine determines which of those elements that satisfy “but for” standard should be held accountable for resulting harm - proximate cause = actual cause actual cause ≠ proximate cause - policy: connect ACT + HARM w/out being unfair - „was D‟s action sufficiently direct cause of harm to warrant imposing criminal liability?” impose liability if resulting harm was foreseeable - INTERVENING FACTORS: - act of God - act of independent 3rd party - act/omission by victim 1. COINCIDENCE (unforeseeable) cuts off liability of D breaks chain of legal cause UNLESS FORSEEABLE D‟s act merely put victim at certain place/time where intervening cause occurred 2. RESPONSE (unforeseeable & abnormal) involves reaction to conditions created by D breaks chain of legal cause ONLY IF ABNORMAL & UNFORESEEABLE -was intervening act a coincidence in relation to act of D, or was it a response in relation to act of D? -subjective to facts of each case 7 ▪ People v. Kibble D robs drunk victim & leaves him in middle of hwy 3rd party driver comes hits & kills victim was ultimate result foreseeable to D? did victim fail to act to save himself? - „but for‟ Ds acts victim would not have been in position - proximate cause – foreseeable that victim would die on side of road even though manner not foreseeable - apparent safety = when victim reaches position of safety, original wrongdoer is no longer responsible for ensuing harm 8 V. CRIMINAL HOMICIDE - HOMICIDE = killing of a human being by act/procurement/omission of another 1) murder; 2) manslaughter; 3) excusable homicide; 4) justifiable homicide - Actus Reus (Killing) Mens Rea (Malice aforethought – murder; Gross negligence – manslaughter) Result (Death) - MALICE = actual intention to do particular harm done, or recklessness as to whether such harm should occur or not intent to harm or recklessness both act & result must be maliciously intended malice if element of MURDER ► MURDER ONE - unlawful killing of another human being w/malice aforethought MALICE + PREMEDITATION some felony-murder - „willful, deliberate, premeditated conduct‟ D kills w/cool & deliberate thought - Malice: 1. 2. 3. 4. intent to kill intent to cause grievous bodily harm depraved-heart murder; gross recklessness; callous disregard for life felony-murder (involving burglary, rape, arson, kidnapping, robbery) - DELIBERATION-PREMEDITATION (1st degree murder only) - premeditated = knowing, intentional; proves malice to think about beforehand “twinkling of an eye” requirement purposeful conduct vs. preconceived design i. motive ii. manner of killing iii. planning of activity - deliberation = to measure & evaluate major facets of choice/problem ▪ Midgett v. State – father abuses & beats 8 yr. old son to death ct  no evidence of premeditated & deliberated causing of death required purpose to cause death 9 ▪ State v. Forrest – D killed dad in hospital to put him out of suffering; D guilty 1 st degree mercy killing involves premeditation Premeditation & Deliberation  Evidence for Murder 1 1. want of provocation on part of deceased 2. conduct/statement of D before/after killing 3. threats/declarations of D before/during 4. ill-will or previous difficulty w/parties 5. dealing of lethal blows after deceased rendered helpless 6. evidence of brutal killing ct  dad did not provoke D; D purposely brought gun in; D shot many times; D stated his intentions to put dad out of misery beforehand ► 2nd Degree Murder - Abandoned & Malignant Heart = malice & gross recklessness - „catchall category‟  intentional killing – no premeditation to be Murder 1 no provocation to be Voluntary Manslaughter - D knowingly killed another - Malice: 5. 6. 7. 8. intent to kill intent to cause grievous bodily harm depraved-heart murder; gross recklessness; callous disregard for life felony-murder (involving burglary, rape, arson, kidnapping, robbery) - Malice can be implied: 1. subjective appreciation of risk by D 2. base antisocial purpose 3. high probability that conduct => death - REQUIREMENTS (People v. Love): 1. D‟s extreme indifference to value of human life 2. awareness of risk of conduct OR that conduct is contrary to law ▪ People v. Berry pit bull dog kills child D implied malice – aware of dog‟s danger substantial risk 10 ► MANSLAUGHTER - residual category for all other criminal homicides w/out malice aforethought - MPC: reckless or extreme emotional duress - manslaughter = excuse; ≠ justification for killing PROVOCATION element = partial defense mitigates culpability  VOLUNTARY MANSLAUGHTER = intentional homicide done in sudden heat of passion w/out malice caused by ADEQUATE PROVOCATION 1) Provocation 2) Extreme Emotional Distress 3) Imperfect Self-Defense Heat of Passion Killing 1. unlawful arrest 2. assault & battery 3. mutual combat 4. spouse in bed PROVOCATION = such to have caused reasonable man to act like D sudden; no cooling off time extreme emotional disturbance – can reduce murder words alone not sufficient 1. actual heat of passion 2. legally adequate provocation 3. no cooling time [or can argue: i) long-smoldering, ii) rekindling] reasonable person = objective by which D‟s conduct is measured person having power of self-control of sex/age of D MPC: reasonableness asserted from viewpoint of a person in actor‟s situation; most subjective TARP: most objective - principle that passion serves to lower level of crime acting out of passion NOT reason; manslaughter ▪ Girouard v. State – D & wife get into argument; wife insults D; D stabs wife to death whether words of wife were taunting enough to inflame passion of reasonable man words alone are not adequate provocation – unless accompanied by certain conduct 11  INVOLUNTARY MANSLAUGHTER = D acting w/gross negligence unaware of risk his conduct poses TARP would have been aware NO MALICE mere recklessness or gross negligence - gross negligence = failure to exercise ordinary caution measured by what TARP would do high likelihood of harm little/no social utility unreasonable risk to human life ▪ State v. Williams – Native parents failed to bring baby to dr. bc of ignorance; baby dies gross negligence – failure to exercise ordinary caution as guardians - Misdemeanor- Manslaughter unintentional killings committed during an unlawful act, not amount to felony no mens rea proof required proximate cause serves as limitation to this ► FELONY-MURDER: [felony + killing = murder 1] No Mens Rea - one is guilty of murder if a death results from conduct during commission or attempted commission of any felony - if D causes death during commission of a felony, don‟t need to prove D‟s intent to kill bc D guilty of CONSTRUCTIVE MURDER intent to commit felony substitutes intent to kill or cause grievous bodily harm - liability for deaths whether killing was intentional, negligent, or accidental - cts assume malice - controversial in USA punishes D for murder even though death may have been accidental most cts. do not like it and limit its application – „highly artificial concept‟ but adopted by legislatures, so cts. must apply it, so they limit it - purpose/rationale: transferred intent, deterrence, retribution, general culpability ▪ People v. Stamp – robbers holding up an office, a victim suffered heart attack & died - murder committed in perpetration of or attempt to perpetrate robbery = murder 1 - no intent necessary as long as homicide is direct causal result of robbery 12 - LIMITATIONS on Felony-Murder: i) Inherently Dangerous Felony ▪ People v. Burroughs – unlicensed dr. treating leukemia patient; massages => death - unlicensed medicine ≠ inherently dangerous felony, no felony-murder ii) Independent Felony ▪ People v. Smith – D hit 2 yr.old kid to death; felony child abuse merged w/homicide - felony-murder only when applied to a felony independent of resulting homicide - Merger Doctrine – if felony is integral part of homicide itself, no felony-murder iii) Killings During Course of Felony ▪ King v. Common – D flying plane to smuggle marijuana; plane crashes in mountains bc of bad weather; co-felon dies - crash that killed victim was not DIRECT CONSEQUENCE of felony - causal connection vs. coincidence [no felony-murder] - felony-murder doctrine applies even after a felony is completed, if the killing occurs during escape from scene of crime, at least if it is part of one continuous transaction - Agency Theory – only deaths directly caused by D or cofelon matter - Proximate Cuase - ACCOMPLICE LIABILITY: adversary to murder ≠ grounds for felony-murder impose liability on felons for acts of cofelons Exception: unanticipated actions by cofelon not in furtherance of felony may not be charged under felony-murder doctrine - felon not responsible for death of cofelon - Homicide Standards First Degree  mens rea: malice + premeditation (premeditation proves malice) {premeditation: motive, planning activity, manner of killing} Second Degree  mens rea: malice intent to kill intent to cause grave bodily harm gross disregard for human life [felony-murder] Voluntary Manslaughter  provocation {heat of passion, legally adequate provocation, no cooling time} words alone ≠ provocation TARP standard extreme mental or emotional disturbance 13 VI. GENERAL DEFENSES TO CRIMES - DEFENSE = conditions/circumstances which may prevent a conviction for an offense PRINCIPLES OF JUSTIFICATION - Justification: TRIGGERING CONDITIONS permit NECESSARY & PROPORTIONAL RESPONSE - negates social harm of offense D did right thing in difficult situation conceding that there was mens rea, all elements of crime are present but circumstances justifying conduct completely relieve D of crime 1. triggering condition that requires D to act 2. necessity element that gives D no choice but to act 3. proportionality requirement that places limits on how D may respond 1. 2. 3. 4. 5. 6. Self- Defense Defense of Others Protection of Property Law Enforcement Necessity Euthanasia ► SELF-DEFENSE i. D had honest/reasonable fear of death or great bodily harm reasonable not necessarily correct belief NECESSITY necessary only to protect or further interest ii. immediate/unlawful threat to D iii. D reacted w/proportional response deadly force only when D faces same iv. D was not initial aggressor v. duty to mitigate some jurisdictions & MPC require D to retreat if possible before resorting to violence - minority: deadly force not necessary if one can retreat; therefore no self-defense - majority: „castle theory‟- one may stand his ground & not retreat on his own property 14 ▪ People v. Goetz – D kills 4 black youths on NYC subway who approached him for $5 - person can only use force against another when he has REASONABLE BELIEF of necessity - rejects MPC subjective approach to „belief‟ - NY adopts objective standard of „reasonable belief‟ based on circumstances Jury considers: 1. physical attributes of D and assailants 2. D‟s prior experience 3. physical movements and comments of potential assailant ▪ State v. Norman – Battered Wife Syndrome - self-defense elements: 1. NECESSARY – subjective D believe engaging in force was necessary IMMINENT – threat/danger to life must be imminent passive victim is not imminent threat 2. REASONABLE – objective person of ordinary firmness under same circumstances would do same - ct. does not find REASONABLE FEAR OF IMMINENT DEATH/HARM  MPC - self-defense when actor believes such force is necessary for purpose of protecting D against use of unlawful force ► TRANSFERRED INTENT OF SELF-DEFENSE B shoots A in self-defense, misses and kills C instead B had no mens rea towards A, therefore B not culpable non-culpable intent towards A is transferred to C ► DEFENSE OF OTHER - Majority Reasonableness Standard: - D may use force to protect another person if D reasonable believes use of force is justified - Minority: - Stand in Shoes defense of other only justified if person being defended had right to use defense force - excessive force never warranted - Rationale: people already alienated; don‟t want to criminalize act of courage 15 ► DEFENSE OF PROPERTY - People v. Ceballos - deadly force may not be used to defend property if resident is not present resident may use deadly force if he reasonably fears use of force must meet ordinary self-defense requirements ► LAW ENFORCEMENT DEFENSES - Common Law & MPC allow law enforcement to use only nondeadly force in apprehending - 4th Amend. reasonable requirement prohibits officers from using deadly force to effect arrest of fleeing felon unless 1. necessary to prevent escape of felon 2. reasonable belief that felon poses threat i.e. – armed, just committed violent crime ► NECESSITY (Choice of Lesser Evils) 1. clear & imminent danger 2. reasonable belief on part of D that action will abate danger 3. no reasonable alternative 4. no legislation that precludes D‟s defense - MPC: subjective belief of D re: necessity ; does not require imminence - Commonwealth v. Leno distributing needles to avoid HIV  not IMMEDIATE threat - if D is forced by forces of nature to commit criminal act  Necessity - necessity ≠ defense to intentional homicide cases - Prison escape  necessity surrender immediately upon reaching safety (People v. Unger) 16 PRINCIPLES OF EXCUSE - excused conduct = negates moral blameworthiness of actor for causing the harm lack of control renders D free of blame or subject to less blame admit deed may be wrong but excuse actor bc of conditions 1. 2. 3. 4. 5. 6. 7. – Duress – Intoxication – Insanity – Diminished Capacity – Infancy – Entrapment Consent ► DURESS - D is compelled by another persons‟ use of force or threat of force to commit a crime - excuses a D‟s behavior bc threats by another person deprived him of fair opportunity to exercise free will [- necessity: justifies D‟s actions bc D made right choice given choice of evils facing him] - US v. Contento 1. an immediate threat of death or serious bodily injury 2. well grounded fear that threat will be carried out 3. no reasonable opportunity to escape threatened harm - Common Law 1. a threat of death or grievous bodily harm 2. imminently posed {threat of future harm will not justify duress} 3. against D/close friend/relative 4. creating such fear that an ordinary person would yield 5. D did not put himself in situation {Gang members} 6. D did not kill another {not a defense to murder} - MPC abandons deadly force & imminency; duress may excuse homicide - there must be threat of bodily injury to person ► INTOXICATION  Involuntary Intoxication = complete defense - unwitting intoxication  person unaware - coerced intoxication  person forced to ingest - pathological intoxication  unexpected grossly excessive effect 17 - City of Minneapolis v. Altimus Involuntary Intoxication = defense if 1. D did not know intoxicant‟s effect 2. intoxicant and not something else caused the intoxication 3. intoxicant caused temporary insanity  Voluntary Intoxication ≠ complete defense; reduces culpability - defense to specific intent crimes crimes that require specific, sophisticated mental activity not available for general crimes – battery, assault - may use to show that D was unable to form necessary mens rea as result {D gets really drunk, drives car, and unintentionally kills woman; D claiming he was too drunk to realize he was driving fast & dangerously} ► INSANITY = full defense to crime - mental disease is legal concept - D excused bc he did not have capacity to understand/control his actions - US v. Freeman baseline rationale for why insanity should be a defense - Deterrence – can we deter someone who is insane? - Retributive – moral condemnation not applicable to insane - Rehabilitation – can someone who is insane be rehabilitated? - State v. Johnson goals of insanity test: 1. substantive law/community values 2. scientific understanding 3. comprehensible to judge/experts/JURY 4. authority of trier of fact maintained  M’Naghten standard [right/wrong] at time of commission of offense, D was laboring under a defect or disease of the mind, and D did not know: nature and quality of his acts, or that his acts were wrong Irresistible Impulse Test - due to mental illness/disease (duress of disease) D would have been unable to stop himself even if there had been a policeman at his elbow at time he committed crime - insanity has destroyed D‟s power to choose between right/wrong  18  Durham Test - D excused for insanity if his unlawful act was product of mental disease - does not give fact finder standards by which to determine insanity MPC - more lenient than M‟Naghten - person not responsible for their criminal conduct if D lacks substantial capacity to: appreciate criminality of his conduct, or conform his conduct to requirements of law 1992 Insanity Defense Reform Act - narrower application of defense; higher standard of proof   19 VII. INCHOATE OFFENSES ATTEMPT - allow punishment even though D has not consummated intended crime - D punished for trying to commit a crime - Majority: carries lesser punishment than completed crime MPC & Minority: punish attempt to same extent as completed crime - attempt requires intent there cannot be intent to commit felony-murder - did D have sufficient intent to commit crime? did D take enough steps to justify punishment? - Mens Rea - purposeful or specific INTENT D‟s purpose was to commit the completed offense 1. knowledge is sufficient 2. MPC: D‟s purpose/belief that she will cause a prohibited result satisfies mens rea for attempt - Actus Reus - substantial step toward completion of crime actions must cross line from mere preparation to criminal attempt PREPARATION (alone not enough) vs. PERPETRATION 1. Last Step – D not guilty unless he has done all he could to commit a crime & external forced prevented him from causing a harm result if D has completed last act (put it out of his hands) may be convicted 2. Proximity Approach – focus on how much D has physically done and how physically close D has come to completing crime what steps has D taken? 3. Unequivocality Test – D‟s acts viewed in abstract to determine whether they showed unequivocal intent to commit a crime unequivocal evidence that is clearly attempt 4. MPC/Majority: D must make a „substantial step strongly corroborative of actor‟s criminal purpose‟ lower standard focus on what D has already done - Commonwealth v. Peaslee D constructed combustibles in building ready to be lighted drove prospective accomplice w/in ¼ mile of building ct said conduct passed level of preparation enough to constitute attempted arson 20 - People v. Rizzo armed D driving around looking for particular clerk to rob police apprehended him before he could find clerk his acts were „mere preparation‟ there must be „dangerous proximity to success‟ - State v. Reeves adopts MPC little girls bring poison to school to kill their teacher D possesses materials to be used in commission of crime at or near scene of crime & possession of material can serve no other purpose to D jury entitled to find actor has taken substantial step toward commission of crime - MPC – ATTEMPT: person is guilty of attempt to commit a crime if, acting w/kind of culpability otherwise required for commission of the crime, he i. purposely engages in conduct which would constitute crime if the attendant circumstances were as he believes them to be; or ii. when causing a particular result is an element of the crime, does or omits to do anything which purpose of causing or w/belief that it will cause such result w/out further conduct on his part, or iii. purpose does or omits to do anything which, under the circumstances as he believes them to be, is a substantial step in a course of conduct planned to culminate in his commission of the crime - Defenses 1. Abandonment - complete renunciation - abandon efforts before crime is completed - voluntary renunciation - under CL, no turning back - MPC – recognize abandonment as defense if D completely [D must not be motivated by decision to postpone conduct] & voluntarily [fear of getting caught cannot motivate D; D must experience sincere change of heart] renunciates criminal purpose, D is not guilty of attempt 2. Impossibility – arises when D has done everything possible to commit a crime, but unexpected factual or legal circumstances prevent crime from occurring MPC does not recognize impossibility as defense 21 - Factual Impossibility: not defense „had circumstances been as D believed them to be, would there have been a crime?‟ - yes => no defense i.e. gun being unloaded, prevents crime from being completed pickpocket trying to pick an empty pocket having sex w/D who unbeknownst to D is already deceased trying to infect someone w/disease D turns out not to have - Legal Impossibility: defense when D consciously tries to violate law but there is no law prohibiting D‟s behavior i.e. perform abortion thinking it‟s illegal, but it‟s not illegal shooting at corpse D mistakenly believes to be alive - Impossibility Formula Whether elements of attempt have been met 1. did D have purpose to commit a crime? 2. did D take a substantial step toward committing crime? Were there facts that were unbeknownst to D that made it impossible for D to complete crime? 1. if facts were as D believed them to be, would D have been guilty of a crime? - People v. Jaffer D purchases property she thinks is stolen impossible for D to receive stolen property bc property purchased was not stolen 3. Merger – if attempt succeeds, D is only guilty of completed substantive crime ASSAULT - attempt to commit bodily harm - must be very close completion - Common Law 1. traditionally no assault unless there‟s clear evidence of intent holding the gun vs. holding the gun and threatening to kill 2. present ability is required for assault unloaded gun ≠ assault (can be attempted murder – factual impossibility) 22 - MPC 1. incorporates assault into attempt 2. does not require present, imminent threat of harm only substantial step 3. assault = attempt to cause bodily injury SOLICITATION - recruiting, encouraging, directing, counseling, or inducing another person to commit a crime - attempt to conspire - no substantial step need be taken toward completion of crime, but D must have purpose/specific intent to promote or facilitate completion of the crime - purely promoting commission of crime is enough to constitute solicitation - will often merge into another doctrine – conspiracy, attempt - requires 3rd party recruited to participate in crime - can occur at much earlier planning stage - solicitation can constitute punishable attempt if it is a „substantial step‟ toward commission of crime - Actus Reus may be purely verbal any command, request, encouraged to another to commit a crime issue of whether communication must be actual (MCP: no) - Mens Rea specific intent crime D must have purpose to promote or facilitate commission of a crime - Defenses 1. Abandonment – not available 2. Renunciation – MPC affirmative defense that D after soliciting another to commit a crime persuades that person to abort plan or otherwise prevents commission of crime - MPC: solicitation exists if a) actor‟s purpose is to promote or facilitate the commission of a substantive offense b) w/such purpose, D commands/encourages/requests another person to engage in conduct that would constitute a crime, an attempt to commit it, or would establish other persons‟ complicity in its commission or attempted commission 23 CONSPIRACY - agreement by 2 or more persons to commit a crime - D may be guilty of both conspiracy & substantive crime that was object of conspiracy - conspiracy punishes mere act of agreeing, even if there is no substantial step toward completing crime - Actus Reus agreement to commit a crime – expressed or implied – can be inferred any illegal/legal act done by conspirators to set conspiracy in motion mere presence at crime scene normally not enough over act required for less serious offense conspiracies CL: bilateral – 2 or more people required MPC: unilateral – one enough ; cop may fool D - Mens Rea 1. intent to agree 2. purpose to have crime succeed unintentional/reckless crimes do not suffice knowledge alone is insufficient purpose may be inferred under some circumstances - Conspiracy as Form of Accomplice Liability - Pinkerton v. US - conspirator is responsible for all acts of her co-conspirators during the course of and in furtherance of the conspiracy, regardless of whether she knew of or participated in those crimes -co-conspirator liability is not retroactive - rejected by MPC – requires accomplice liability - Gebardi v. US - a person that a particular law intended to protect cannot be a party to a conspiracy to violate that law - Defenses 1. Abandonment if everyone involved in conspiracy abandons the plans, D is only responsible for crimes committed when conspiracy was still active 2. Withdrawal CL: if D withdraws from ongoing conspiracy, he is still responsible for initial crime of conspiracy, but no longer responsible for ongoing crimes of the conspiracy withdrawal requires notification MPC: if person either informs co-conspirators or notifies authorities, he is not responsible for ongoing acts of co-conspirators 24 VIII. ACCOMPLICE LIABILITY - in general, someone who aids in crime after fact is not as culpable as someone engaged in crime - many states do not distinguish between principal & accomplice - all persons who participated in crime considered accomplices - Mens Rea - D must help another in commission of a crime w/purpose of having crime succeed - mere presence or knowledge is not sufficient - Actus Reus slightest act of encouragement/assistance may suffice for accomplice liability - Defenses 1. Abandonment not defense at CL some jurisdictions – if D voluntarily & completely renounces involvement in crime and makes substantial efforts to prevent it MPC – defense if D terminates complicity prior to commission of offense i. depriving plan of its effectiveness ii. providing sufficient warning to law enforcement to prevent commission of crime - a person is party to an offense, if he either: i. actually commits offense or ii. does some act which forms a part thereof, or iii. if he assists in the actual commission of the offense or of any act which forms part of iv. directly/indirectly counsels or procures any person to commit the offense or to do any act forming a part thereof 25 IX. THEFT LARCENY 1. 2. 3. 4. 5. 6. take possession of personal property owned or possessed by another by means of trespass & w/intent to steal property carries property away Robbery – larceny from a person by violence or intimidation larceny + force/threat of force used by thief to obtain property in question EMBEZZLEMENT - conversion of property received by the wrongdoer in a nontresspassory manner - must also be an element of entrustment actor must have received property in trust for another embezzler‟s conversion = breach of trust 1. 2. 3. 4. fraudulent conversion of the property of another that D already possesses FALSE PRETENSES - taking title of property of another by false pretenses - larceny by trick is taking possession of property of another by false pretenses 1. 2. 3. 4. taking title & possession of property of another by knowingly false representations w/regard to a material present or past fact; w/intent to defraud DEFENSES 1. Consent 2. Claim of Right 26