Documents
Resources
Learning Center
Upload
Plans & pricing Sign in
Sign Out

Criminal Law Outline - DOC

VIEWS: 773 PAGES: 71

									Criminal Law Outline Prof. Frank Herrmann Spring 2009 PROF. HERRMANN’S SPRING 2007 EXAM.......................................................................................................2 Status Crime Hypothetical ................................................................................................................................................ 2 Mistake of Law and Self-Defense Hypothetical............................................................................................................ 2 Criminal Activity and Evading Arrest Hypothetical .................................................................................................... 2 Unsuccessful Attempted Rape Hypothetical ................................................................................................................. 3 Necessity of Carrying a Concealed Weapon Hypothetical.......................................................................................... 3 Proposed Approaches to the Defense of Legal Insanity Hypothetical .................................................................... 3 DETERMINATION OF CRIMINAL GUILT .........................................................................................................4 Proof Beyond A Reasonable Doubt (BRD) .................................................................................................................. 4 JUSTIFICATION FOR PUNISHMENT ................................................................................................................5 Theories of Punishment .................................................................................................................................................... 5 LIMITATIONS ON THE STATE’S POWER TO DEFINE CRIMINAL ACTS .......................................................... 6 Constraints of the Criminal Law...................................................................................................................................... 6 THE REQUIRED ACT ......................................................................................................................................8 Actus Reus ........................................................................................................................................................................... 8 Omissions to Act ................................................................................................................................................................ 9 CULPABLE MINDEDNESS.............................................................................................................................. 10 Mens Rea............................................................................................................................................................................ 10 Mens Rea and Strict Liability .......................................................................................................................................... 12 Mens Rea and Mistake of Fact ....................................................................................................................................... 13 Mens Rea and Mistake of Law ....................................................................................................................................... 14 Ignorance or Mistake that Negates Mens Rea............................................................................................................. 15 RAPE .............................................................................................................................................................. 15 The Common Law Approach ........................................................................................................................................ 15 The Modern Approach.................................................................................................................................................... 16 Actus Reus: Physical Force and “Reasonable Fear” .................................................................................................. 17 Actus Reus: New Jersey‟s Strict Approach to Sexual Assaults ................................................................................. 18 Actus Reus: Nonviolent Threats.................................................................................................................................... 18 Actus Reus: The Victim‟s Resistance ............................................................................................................................ 19 Actus Reus: Non-consent and Deception.................................................................................................................... 19 Mens Rea of Sexual Assault ............................................................................................................................................ 19 HOMICIDE ..................................................................................................................................................... 21 Intended Killings Under the Common Law ................................................................................................................ 21 Intended Killings Under the Model Penal Code......................................................................................................... 22 Provocation Under the Common Law ......................................................................................................................... 23 Provocation Under the Model Penal Code .................................................................................................................. 24 Unintended Killings Under the Common Law ........................................................................................................... 24 Unintended Killings Under the Model Penal Code ................................................................................................... 25 Felony-Murder Rule ......................................................................................................................................................... 26 CAUSATION ................................................................................................................................................... 31 Causation Under the Common Law ............................................................................................................................. 31 Causation Under the Model Penal Code ...................................................................................................................... 34 Subsequent Human Actions ........................................................................................................................................... 34 Potential Problems with Foreseeability ........................................................................................................................ 36 ATTEMPT ....................................................................................................................................................... 36 Expanding Liability .......................................................................................................................................................... 36 Attempt Under the Common Law ................................................................................................................................ 37 Attempt Under the Model Penal Code......................................................................................................................... 39

2
Abandonment and Renunciation ................................................................................................................................... 41 Impossibility Under the Common Law........................................................................................................................ 42 Impossibility Under the Model Penal Code ................................................................................................................ 43 EXCULPATION ............................................................................................................................................... 44 Principle of Justification .................................................................................................................................................. 44 Self-Defense Under the Common Law ........................................................................................................................ 44 Self-Defense Under the Model Penal Code................................................................................................................. 46 Defense of Property......................................................................................................................................................... 47 Battered Woman Syndrome and Self-Defense............................................................................................................ 49 Use of Force by Law Enforcement............................................................................................................................... 51 Choice of the Lesser Evil ................................................................................................................................................ 52 EXCUSE ......................................................................................................................................................... 54 Principles of Excuse......................................................................................................................................................... 54 Duress................................................................................................................................................................................. 54 The Insanity Defense....................................................................................................................................................... 55 GROUP CRIMINALITY ................................................................................................................................... 59 Complicity .......................................................................................................................................................................... 59 Conspiracy Under the Common Law ........................................................................................................................... 66 Conspiracy Under the Model Penal Code.................................................................................................................... 69

PROF. HERRMANN’S SPRING 2007 EXAM A. Status Crime Hypothetical  Homelessness in Pleasant Valley

 Concerned about the large number of homeless persons within Pleasant Valley, the Pleasant Valley legislature passed an ordinance, making it a criminal offense for: "any person to sleep on any street or sidewalk in the city after a request by a law enforcement officer to move on." The Pleasant Valley police have arrested hundreds of homeless persons for violating the ordinance. John Spazier is among those arrested. He is a homeless person living in a public park. He is unemployed and unemployable. He has no family. At the time of his arrest, Mr. Spazier was sleeping on a public sidewalk. The police had earlier asked him to move several times that same evening. Mr. Spazier had done so. But the third time the police found him sleeping on the sidewalk, he refused to move on and he was arrested for violating the ordinance. Your law firm has taken Mr. Spazier's case pro bono. What theory, or theories, of defense do you think may help Mr. Spazier? If you think you need to know more about Mr. Spazier to develop your defense, what questions do you wish to ask him? If you think you need to know more about the conditions in Pleasant Valley, what information would you wish to discover about the city?

B. Mistake of Law and Self-Defense Hypothetical  The Honor of A Street Fighter
 “Defendant is charged with murder for allegedly stabbing a victim to death during a street fight in which the victim was armed with and brandishing a knife. At trial, the defendant intends to rely on a claims of "mistake of law" and self-defense. In support of his claims, the defendant wishes to introduce expert testimony. If permitted, a defense expert will testify: (a) at the time of the fight, the defendant had just arrived 3 months earlier in the United States from a foreign country where the defendant was raised in the culture of that foreign country (hereinafter X culture); (b) X culture is based on honor, and honor defines a person; (c) in X culture, of which the defendant is a member, street-fighters have a special understanding of what is expected of them; and (d) for a street-fighter in X culture, there is no honorable retreat. The Model Penal Code applies in the trial jurisdiction. You are the judge. Write a decision in which you determine whether you will permit the defense expert to testify. (The standard under which the judge must decide is: whether the expert's testimony, if believed by a rational jury, could be legally sufficient to establish a defense defined by relevant sections of the Model Penal Code.)

C. Criminal Activity and Evading Arrest Hypothetical  Sellin’ Dope in Deep River City

2

3
 At 2:00am, Office Schwim of the Deep River City police department attempted to arrest two persons whom he saw engaged in what he believed to be a drug transaction with each other. He attempted to arrest X for selling marijuana (a felony) to Y. And he attempted to arrest Y for possession of the marijuana Y had bought from X (misdemeanor). Both X and Y broke loose from Officer Schwim. They ran onto a pedestrian bridge, which spanned a deep river. Officer Schwim chased them. On the bridge walkway there was a five-foot wide hole in the pavement, opening to the river below. X jumped over the gap. Y managed to run around it. Officer Schwim tried to jump the gap but was unsuccessful. He fell into the river below and drowned. You are an assistant district attorney. Your supervisor has asked you to write a memo describing what offense(s), if any, X and Y can be charged with, regarding the officer's death. Your supervisor has asked you to include in your memo the likely issues the prosecution will face in proving any of the charges against X and Y regarding the officer's death. The Model Penal Code governs in your jurisdiction.

D. Unsuccessful Attempted Rape Hypothetical  To Catch A Predator: Newton, Massachusetts
 Christina Law, a private citizen, age 21, wanted to stop sexual predators in her area. As part of her efforts, she entered chat rooms on the internet and struck up conversations with strangers. In the course of her activity, Ms. Law engaged in conversation with Gerry Defendant, age 37. She told Gerry she was 14. Their conversation turned to sexual matters. Gerry eventually asked if they could meet and have sex together. Ms. Law said yes. The two agreed to meet in a parking lot behind a certain pizzeria. Ms. Law said she would be wearing a distinctive orange jacket, so Gerry could recognize her. It was agreed that she would jump in his car and they would have sex. As soon as the conversation was concluded, Ms. Law called the police and told them all the details. Gerry drove to the pizzeria on the date agreed, though he parked a couple of blocks distant from it. He arrived fifteen minutes early in the pizzeria. He looked around for Christina, but saw no one with an orange jacket. He asked to buy a single slice of pizza, but was told the store did not sell single slices. He left immediately. He did not check the parking lot. Gerry then returned to his car and drove about a half mile to another pizzeria where he bought a single slice and sat down there to eat it. At this point, the police, who had been observing Gerry all along, entered the shop and arrested Gerry for attempted sexual intercourse with a minor. The Model Penal Code governs the jurisdiction. If Gerry's defense attorney brings a motion to dismiss the charge on the ground that "as a matter of law" there was no attempt to have sexual intercourse with a minor, how should the court rule? (The standard the court must apply in analyzing the issue is "whether no rational trier of fact could believe beyond a reasonable doubt that the evidence, viewed in a light most favorable to the prosecution, could constitute an attempt to have sexual intercourse with a minor). Second, assess the merits of a defense of renunciation

E. Necessity of Carrying a Concealed Weapon Hypothetical  Dangers of Living in a High-Crime Area

 Defendant has been charged with carrying a concealed deadly weapon (to wit, an automatic pistol, which is capable of firing one-round per second). At trial, the defense presented evidence that the defendant lives in a high-crime area, the police are rarely visible there, and, the defendant had recently been told by local youths that "You better be careful." The defendant believed this to be a threat because he was rumored to have stolen the motorbike of a local gang-leader. The defense attorney requests that the judge instruct the jury about the defense of necessity. The law of necessity in the jurisdiction states:
"(1) Conduct which the actor reasonably believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged. "(2) When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his conduct, the justification afforded by this Section is unavailable."

In ruling on the defense's requested instruction, the judge must decide whether a rational jury, which believed the defendant's evidence, could find him not guilty (without engaging in jury nullification.) Write the judge's decision.

F. Proposed Approaches to the Defense of Legal Insanity Hypothetical  Pick Your Favorite Version of Insanity

 You are a legislator having to choose among several proposed approaches to the defense of legal insanity. One pending bill defines the defense according to M'Naghten's Case; another bill proposes adopting Model Penal Code 4.01 (with the word "wrongfulness"); a third bill proposes abolishing the defense of

3

4
insanity altogether. On your legislative blog you wish to tell your constituents which bill you favor and why. Write your blog.

DETERMINATION OF CRIMINAL GUILT G. Proof Beyond A Reasonable Doubt (BRD)  Fundamental Basis for Requiring a BRD Standard  “It is a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free” – Justice Harlan  Reasonable Doubt “As a Matter of Law”  It is the function of the judge to deny the jury any opportunity to operate beyond its province; the jury may not be permitted to conjecture merely, or to conclude upon pure speculation or from passion, prejudice or sympathy.  A trial judge, in passing upon a motion for directed verdict of acquittal, must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt…If he concludes that either of the two results, a reasonable doubt or no reasonably doubt, is fairly possible, he must let the jury decide.  What is Reasonable Doubt?  “It is…not a mere possible doubt; because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel any abiding conviction, to a moral certainty, of the truth of the charge” – Justice Shaw (Comm. v. Webster, 59 Mass. 295, 1850).  Allocating the Burden of Proof  Though the prosecution must prove guilt beyond a reasonable doubt, the state is sometimes permitted to allocate the burden of persuasion on certain subsidiary issues to the defense.
Mullaney v. Wilbur Facts: Involved a Maine homicide statute, that defined murder as a killing with malice afterthought that would be applied unless the defendant could rebut malice afterthought by a preponderance of evidence that the crime occurred in the “heat of passion Holding: The Court held that the defendant‟s due process rights were violated by Maine‟s decision to place upon him the burden of proving provocation; the approach violated the Winship requirement that the state prove “beyond a reasonable doubt every fact necessary to constitute the crime charged.” Patterson v. New York Facts: Defendant was charged with second-degree murder under N.Y. Penal Law for killing his estranged wife's friend. After defendant was convicted of murder, he appealed the verdict on the basis that the need to prove the affirmative defense of extreme emotional disturbance was a violation of the Fourteenth Amendment. Holding: Court held that there was no violation of defendant's due process rights. Reasoning: Defendant had the burden of proving the affirmative defense of extreme emotional disturbance by a preponderance of the evidence. Under prior cases, this was not a constitutional violation. Court concluded first that facts constituting a crime had to be established by the State beyond a reasonable doubt, based on all the evidence including the evidence of defendant's mental state. Then, the State was permitted to refuse to sustain the affirmative defense of insanity, or in this case emotional disturbance, unless defendant established the defense by a preponderance of the evidence.

 Model Penal Code § 1.12 – Proof Beyond a Reasonable Doubt  (1) No person may be convicted of an offense unless each element of such offense is proved beyond a reasonable doubt. In the absence of such proof, the innocence of the defendant is assumed.  (2) Subsection (1) of this Section does not:  (a) Require the disproof of an affirmative defense unless and until there is evidence supporting such defense; or

4

5
 (b) Apply to any defense that the Code or another statute plainly requires the defendant to prove by a preponderance of evidence.  (3) A ground of defense is affirmative, within the meaning of Subsection (2)(a), when:  (a) It arises under a section of the Code that so provides; or  (b) It relates to an offense defined by a statute other than the Code and such statute so provides; or  (c) It involves a matter of excuse or justification peculiarly within the knowledge of the defendant on which he can fairly be required to adduce supporting evidence.
 Prosecutor

is not required to disprove an affirmative defense “unless there is evidence supporting such defense;” it does not specify the strength of the evidence required to satisfy the defendant‟s burden of production.  Term “element” as used in the MPC includes conduct that “negatives an excuse or justification” for the action.  MPC allocates to the prosecution the duty to disprove defenses, assuming that the defendant has satisfied his burden of production; this does not apply to defenses that the MPC expressly requires the defendant to prove by a preponderance of the evidence. JUSTIFICATION FOR PUNISHMENT H. Theories of Punishment  Retribution [Backward-looking / Non-consequentialist Theory]  Punishment is justified by the moral culpability of those who receive it.  Strong Retributivism: Wrongdoing requires punishment equivalent to the offense (i.e., Kant stating, “Whoever has committed murder must die”), and a society is morally right only if it returns appropriate suffering to every offender who commits a wrong.  Weak Retributivism: Punishment is permitted, not required. Its purpose is to restore balance between the benefits and burdens possessed by members of society.  Includes theory of protective retribution, where punishment is a means of securing a moral balance in the society. If a person fails to exercise self-restraint, he destroys the balance and becomes a free rider thereby benefiting from the system of rule without accepting the same burdens. By punishing the wrongdoer, society demonstrates its respect for him – society treats him as a responsible moral agent.  Includes theory of victim vindication, whereby committing an offense, a criminal implicitly sends a message to the victim and society that his rights and desires are more valuable than those of the victim; punishment corrects this false claim – it reaffirms the victim‟s worth as a human being in the face of the criminal‟s challenge.  Includes theory of annulment, where according to Hegel, so long as a criminal goes scot-free, the crime itself still exists, still flourishes, but when the criminal is adequately punished the crime itself is somehow extinguished.  Variations on retribution include:  Vengeance: J.F. Stephen states that punishment is a formal, structured expression of the righteous hatred society feels towards criminals.  Social functions: According to H.L.A. Hart, the focus of modern retributive theory has shifted from the moral rightness of punishing evil with suffering, to the value of expressing moral condemnation of an offense. Durkheim states punishment maintains the “cohesion of society” by conspicuously reinforcing a society‟s collective sentiments.  Mixed theory: According to H.L.A. Hart, society has not a duty, but only a license to punish an offender. Within the limit of what someone deserves (appropriateness to the crime), punishment should be determined according to what is best for society. M.S. Moore argues that mixed theory cannot be accepted if we believe that an individual who has committed a horrific crime, even if he is later rendered completely non-dangerous, should still be punished.

5

6
 Utilitarianism [Forward-looking / Consequentialist Theory]  As formulated by J. Bentham, pain inflicted by punishment is justifiable if, and only if, it is expected to result in a reduction in the pain of crime that would otherwise occur no matter how egregious the crime.  Assumes potential offender will avoid criminal activity is the perceived potential pain (punishment) outweighs the expected potential pleasure (criminal rewards).  However, requires that the potential offender (i) must know of the rule, (ii) must be able to perceive the cost violation as greater than the perceived benefit and (iii) must be able and willing to bring such knowledge to bear on his conduct decision at the time of the offense.  Theory of general deterrence, where a person is punished in order to convince the general community to forego criminal conduct in the future.  Criminal is used as a means to a desired end, namely, a net reduction in crime.  Criminal‟s punishment teaches us what conduct is impermissible.  Criminal‟s punishment instills fear of punishment in would-be violators.  Theory of specific deterrence, where offender is punished to deter future misconduct by said person.  Deterrence by incapacitation – imprisonment prevents offender from committing crimes.  Deterrence by punishment reminds offender that if he returns to a life of crime, he will experience more pain.  Increasing the certainty of punishment is a more effective deterrent than increasing the severity of punishment.  Moral influence: “[P]eople obey the law (i) because they fear the disapproval of their social group if they violate the law [normative social influence], and (ii) because they generally see themselves as moral beings who want to do the right thing [internalized moral standards]…” Criminal law influences the creation of social norms, especially when it is perceived as legitimate and just. The law is perceived as just when punishments are seen as deserved, in the retributive sense.  Rehabilitation [Forward-looking / Consequentialist Theory]  Can have two goals: (i) making criminals safe to return to mainstream society and (ii) rehabilitating offenders so they can lead successful lives. The second aim is paternalistic.  Today, rehabilitation theory has morphed into “re-entry,” based on the idea that criminals will inevitably leave prison, and we should try to make their reentry into society as safe as possible for everyone involved.  Model Penal Code § 1.02 – Purpose  The general purposes of the provisions governing the definition of offenses are: (a) to forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests; (b) to subject to public control persons whose conduct indicates that they are disposed to commit crimes; (c) to safeguard conduct that is without fault from condemnation as criminal; (d) to give fair warning of the nature of the conduct declared to constitute an offense; (e) to differentiate on reasonable grounds between serious and minor offenses; and (e) to differentiate on reasonable grounds between serious and minor offenses. LIMITATIONS ON THE STATE’S POWER TO DEFINE CRIMINAL ACTS A. Constraints of the Criminal Law  Legality  Nullum crimen, nulla poena, sine lege (no crime w/o law, no punishment w/o law).  Fair Notice  Unless adequate notice is provided, difficult to argue that defendant has “chosen” to commit the wrongful act.  “Judicial enlargement” of a statute, when not foreseeable, is a denial of due process.

6

7
 The „rule of lenity‟ states that the court has an obligation to resolve any ambiguity by interpreting statutes strictly and narrowly, so as to only enforce what the legislature clearly intended to be enforced.  Prohibition against ex post facto laws.  Political checks on criminal law making.  Legislation is a deliberative process that takes great time and effort, considering many circumstances, rather than a single court case creating precedent.  Void for Vagueness  Where the acts limited are in a narrow category, greater leeway is allowed.
Keeler v. Superior Court Facts: Keeler was charged with murder under California‟s penal code § 187, after he kicked his pregnant ex-wife in the stomach, causing the fetus to be delivered stillborn. He sought a writ of prohibition, which would bar further proceedings on the ground that his conduct would not constitute murder, as statutorily defined. Holding: The court held that § 187 was not originally intended to apply to an unborn fetus, and therefore an unforeseeable judicial enlargement of § 187 and retroactive application would deny Keeler due process of law. The change was deemed unforeseeable because no California court or any other state had defined the killing of a fetus as homicide. Rogers v. Tennessee Facts: Rogers stabbed a man who died from complications of his wounds about 15 months later. The Tennessee Supreme Court sustained his conviction, abolishing the common law year-and-a-day rule and retroactively applying their decision to Rogers‟s case. Holding: The Supreme Court affirmed, holding that “judicial alteration of a common law doctrine of criminal law violates the principle of fair warning…” only where it is “unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.” In this case, there was fair warning because medical advances made the common law doctrine “obsolete,” and it had been abolished in many other jurisdictions. Notes: This case represented an important break from a precedent, Bouie, which said that the Due Process Clause is violated when a person has no “fair warning” of what constitutes the crime at the time of the offense. In his dissent, Scalia argued that the majority was incorrect in considering whether Rogers had fair warning that the law would be changed, instead of whether he had fair warning of what constituted murder when he stabbed his victim. Papachristou v. City of Jacksonville Facts: Jacksonville‟s city ordinance criminalized a long list of behaviors and characteristics, including “persons who use juggling or unlawful games,” “persons wandering or strolling around from place to place without any lawful purpose or object,” “persons able to work but habitually living upon the earnings of their wives or minor children” as vagrancy. Holding: The court held that the ordinance was plainly unconstitutional because it criminalized activities which are normally innocent by modern standards, and offered no guidelines governing the exercise of discretion by law enforcement, permitting arbitrary and discriminatory enforcement of the law. City of Chicago v. Morales Facts: The Illinois Supreme Court had affirmed dismissal of charges against Morales and other defendants on the grounds that a Chicago city ordinance prohibiting “criminal street gang members” from “loitering” was unconstitutionally vague. Holding: The Supreme Court affirmed, holding that the law was unconstitutionally vague because it did not placed too much discretion in the hands of the police to determine whether someone doesn‟t have “an apparent purpose” (and therefore is loitering). The law would be better if, in addition to requiring the officer to reasonably believe that at least one member of the group is a gang member, the loitering must have an “apparently harmful purpose or effect,” or perhaps if it only applied to groups entirely composed of gang members.

 Prohibition Against “Status” Crimes  What‟s wrong with a law that criminalizes addiction?  Creates continuous liability – arrested over and over at any time until you “reform.”  Haven‟t necessarily committed any “act” within the jurisdiction.  Analogous to punishing someone for being diseased.

7

8
Robinson v. California Facts: Robinson was convicted under a statute that makes it a criminal offense for a person to “be addicted to the use of narcotics.” Holding: The Supreme Court held that a law that imprisons someone solely because of a continuous condition (narcotics addiction), not because of any act, such as use of narcotics or antisocial behavior caused by such use, inflicts cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Notes: The dissent argued that the Court‟s opinion seemed to be a step toward complete decriminalization of narcotics (not only addiction, but also use). Powell v. Texas Facts: Powell was convicted of being found intoxicated in a public place. Defendant argued that he was afflicted with the disease of chronic alcoholism and that his appearance in public while drunk was not of his own volition. Holding: The Supreme Court affirmed the conviction, with four justices writing that the crime charged was not just a status crime, since Powell engaged in public behavior that creates public health and safety hazards, and is morally culpable. The opinion also stated that the current state of medical knowledge offered no conclusive answer to the question of whether Powell, or alcoholics in general, was able to control their d rinking and subsequent behavior. Finally, the court did not want to make a constitutional rule of mens rea.  Court reasoned that chronic alcoholics in general do not suffer from such an irresistible compulsion to drink and to get drunk in public that they are utterly unable to control their performance of either or both of these acts and thus cannot be deterred at all from public intoxication. Notes: The dissent argued that this law, like the law in Robinson, inflicted cruel and unusual punishment for being in a condition the defendant could not avoid.

THE REQUIRED ACT A. Actus Reus  Black’s Law Dictionary: “The wrongful deed that comprises the physical components of a crime and that generally must be coupled with mens rea to establish criminal liability; a forbidden act.”  Model Penal Code § 2.01 Requirement of Voluntary Act; Omission; Possession.  (1) A person is not guilty of an offense unless his liability is based on conduct that includes a voluntary act or the omission to perform an act of which he is physically capable.  (2) The following are not voluntary acts:  (a) A reflex or convulsion;  (b) A bodily movement during unconsciousness or sleep;  (c) Conduct during hypnosis or resulting from hypnotic suggestion;  (d) A bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual.  (3) Liability for the commission of an offense may not be based on an omission unaccompanied by action unless:  (a) The omission is expressly made sufficient by the law defining the offense; or  (b) A duty to perform the omitted act is otherwise imposed by law.  (4) Possession is an act if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.
 Under

the MPC, liability cannot be based upon mere thoughts, upon physical conditions, or upon involuntary movements. It is, however, required only that the actor's conduct include [at least one] voluntary act, and thus unconsciousness preceded by voluntary action may lead to liability based upon the earlier conduct.  Under Subsection (4), one of two conditions will suffice: if the actor knowingly procured or received the thing possessed, his conduct will have included a voluntary act and liability can be imposed consistently with Subsection (1); similarly, if the actor was aware of his control for a sufficient period to have been able to terminate his possession, his conduct will have included an omission to perform an act of which he was physically capable. Since a law making possession a crime implies a duty to relinquish possession as soon as one is aware of it, liability imposed in the latter instance is consistent with the principles of Subsections (1) and (3)(b)

8

9
Martin v. State Facts: Defendant was arrested at his home and taken into a public place by police where he allegedly manifested a drunken condition by using loud and profane language. Defendant was convicted of public drunkenness and he appealed. Holding: The court reversed defendant's conviction and concluded that an accusation of drunkenness in a designated public place could not be sustained when proof existed that the accused, while in an intoxicated condition, was involuntarily and forcibly carried to that place by an arresting officer. Notes: Court believed that every part of the conduct must be voluntary in order for it to constitute a crime. The Court found a rule in common law to support its interpretation of the statute requiring voluntary appearance; the actual language of the statute was not so clear. People v. Newton Facts: Newton appealed his conviction of voluntary manslaughter. The victim was a police officer who was involved in a struggle with Newton while attempting to arrest him. Newton testified that he didn‟t remember anything between being shot by another officer and arriving at the hospital. He requested a jury instruction that unconsciousness is a defense to criminal homicide, but the court didn‟t use it. Holding: The court reversed the conviction, holding that the trial court committed reversible error when it failed to instruct the jury as to defendant's involuntary, unconscious state. Involuntary unconsciousness provided a complete defense to a particular crime because it negated capacity to commit any crime. Reasoning: Defendant's evidence warranted an instruction concerning unconsciousness. The fact that such evidence might not have been wholly believable was no excuse for a failure to instruct. The error to instruct was prejudicial per se because it deprived defendant of his constitutional right to have the jury determine all material issues presented by evidence. Despite defendant's failure to request an instruction, the trial court was under a duty to instruct anyway where evidence existed concerning unconsciousness.  Unconsciousness need not reach the physical dimensions commonly associated with the term (coma, inertia, incapability of locomotion or manual action, and so on); it can exist where the subject physically acts in fact but is not, at the time, conscious of acting.  Similarly, where not self-induced, as by voluntary intoxication or the equivalent, unconsciousness is a complete defense to a charge of criminal homicide. People v. Decina Facts: Decina knew he was susceptible to epileptic attacks that could cause him to lose consciousness, and chose to drive a car on a public highway. He suffered an attack while driving and caused the deaths of four pedestrians. He was charged with criminal negligence in the operation of a vehicle resulting in death. Holding: The court affirmed his conviction. Because of his knowledge of his condition, he was driving recklessly from the moment he got into the car. There was a causal connection between the voluntary action and the harm caused, and the harm resulting from his voluntary act of getting into the car and driving was foreseeable, so he was liable even though his actions during the seizure were involuntary.

B. Omissions to Act  Anglo-American Legal Systems  In such systems there is generally no duty to act, but a duty can be created by: (i) Statute (i.e., criminal, contract and tort); (ii) Status (i.e., parent to child, etc…); (iii) Contract; (iv) Voluntary assumption of care; (v) Creating peril.
Jones v. United States Facts: Jones argued there was insufficient evidence to warrant a jury finding of breach of duty, or alternatively, plain error in failing to instruct the jury that it must first find that appellant was under a legal obligation to a baby in her care before finding her guilty of manslaughter in failing to provide food and necessities. Holding: The court stated that criminal liability could be found for breach of a statutory duty where (i) there was a certain status relationship, where (ii) one had assumed a contractual duty, and (iii) where one had secluded a helpless person so as to prevent others from aiding. Since a finding of legal duty was the critical element of the crime charged, failure to instruct the jury concerning it was plain error. Reasoning: The law recognizes that under some circumstances the omission of a duty owed by one individual to another, where such omission results in the death of the one to whom the duty is owing, will make the other chargeable with manslaughter. This rule of law is always based upon the proposition that the duty neglected must be a legal duty, and not a mere moral obligation. It must be a duty imposed by law or by contract, and the omission to perform the duty must be the immediate and direct cause of death. Pope v. State Facts: A three-month-old infant died as a result of physical injuries inflicted by his mother. The abuse by the mother occurred while the mother and infant were staying in defendant's home. Defendant was present in the

9

10
home during the incident. Defendant was subsequently charged in a nine-count indictment and convicted of child abuse and misprision of felony under common law. Holding: On final appeal, the court reversed and held that absent a court order or award by some appropriate proceeding pursuant to statutory authority, responsibility for supervision of a minor child may be obtained only upon the mutual consent, expressed or implied, by the one legally charged with the care of the child and by the one assuming the responsibility. Reasoning: A parent may not impose responsibility for the supervision of his or her minor child on a third person unless that person accepts the responsibility, and a third person may not assume such responsibility unless the parent grants it. Barber v. Superior Court Facts: Two physicians were charged with murder and conspiracy to commit murder after they removed respirator and feeding tubes from a patient who had virtually no chance of recovering cognitive and motor skills, in accordance with the request of the patient's family. Holding: The Court held that although the physicians‟ actions were intentional and undertaken with knowledge that the patient would die, their omission to continue treatment, was not an unlawful failure to perform a legal duty under the circumstances. Since petitioners were not under a legal duty to act, they had no criminal liability for failure to act.  The cessation of "heroic" life support measures is not an affirmative act but rather a withdrawal or omission of further treatment.  A physician has no duty to continue treatment once it has proved to be ineffective.

CULPABLE MINDEDNESS A. Mens Rea  Black’s Law Dictionary: “The state of mind that the prosecution, to secure a conviction, must prove that a defendant had when committing a crime; criminal intent or recklessness.”  Model Penal Code § 2.02 – Requirements of Culpability  (1) A person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.  (2)(a) Purposely – requires a conscious objective (i.e., “I want to hurt Mr. Desai by administering poison”).  (2)(b) Knowingly – does not require an objective, but instead requires the defendant be practically certain the bad consequence will transpire from his actions (i.e., “If I rip the gas meter off the wall for the money, it is practically certain I will administer poison to Mr. Desai” (> 90%).  (2)(c) Recklessly – gross deviation from standard of care reasonable person would do (> than torts standard); risk must be unjustifiable and substantial (< than practically certain); must have knowledge of risk; could call this “conscious risk creation.” (i.e., “I know there is a chance that this will poison Mr. Desai”).  (2)(d) Negligently – defendant is not aware of the substantial and unjustified risk, but should be; it is also a gross deviation from the standard of care that a person would normally exercise. rule under the MPC is that if a criminal statute does not specify the required mens rea, it should be read as if recklessness is the lowest level of culpability required for criminal liability.  N.B. The MPC‟s spectrum of intentionality does not consider why an individual chooses a particular action (i.e., no distinction between euthanasia and a revenge killing).  N.B. The common law and MPC differ on difference between reckless and negligent; under the common law, negligence often involves a lower degree of risk; in MPC, the only difference is in awareness.  Model Penal Code § 2.02(8) – Requirement of Willfulness  A requirement that an offense be committed willfully is satisfied if a person acts knowingly with respect to the material elements of the offense, unless a purpose to impose further requirements appears.
 Default

10

11
 Model Penal Code § 2.02(7) – Requirement of Knowledge  When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist.
Regina v. Cunningham Facts: Cunningham broke a gas meter off of a pipe and stole it, causing a large amount of gas to escape and enter the home of Sarah Wade, who was partially asphyxiated. He was convicted of unlawfully and maliciously causing Wade to take a noxious substance, which endangered her life. Holding: On appeal, the judgment was reversed after the defendant argued, and the court held, that the trial judge had incorrectly instructed the jury that the meaning of “malicious” is “wicked.”  Malice in a criminal context requires foresight of the consequences; the jury needed to find either intention or recklessness as to whether removing the meter might cause injury to someone. Regina v. Faulkner Facts: Faulkner went into the hold of his ship to steal some rum and lit a match so he could see better, which caused a fire to destroy the entire ship. He was charged with maliciously setting fire to the ship. The jury was directed to give a guilty verdict because the fire was caused by a felonious act, without being asked to consider whether he acted maliciously. Holding: The appeals court quashed the conviction on the ground that the jury direction was erroneous. The defendant was not criminally liable for every possible consequence of his felonious act, even those that could not be reasonably foreseen. State v. Hazelwood Facts: Eleven million gallons of petroleum were discharged onto a reef after the captain ran his ship aground. The jury found that the captain had negligently discharged oil onto the land, and he was convicted under Alaska Stat. §46.03.740 of a class B misdemeanor. Trial court ruled that the conviction could be predicated upon a finding of ordinary negligence. Court of Appeals reversed. Holding: The Alaska Supreme Court ruled that the conviction was proper. The court found the captain was not denied due process under Alaska Const. art. I, §7 because reasonable deterrence was the basic principle of the due process balance between individual and societal interests and society could reasonably expect the captain to conform his or her conduct to the law. Reasoning: Court held that the negligence standard was constitutionally permissible because it approximated what the due process guarantee aimed at; assurance that criminal penalties would be imposed only when the conduct at issue was something society could reasonably expect to deter. Dissent: Argued that under ordinary negligence, the risk must be of such a nature and degree that the failure to perceive it constitutes a deviation from the standard of care that a reasonable person would observe in the situation. Criminal negligence requires a greater risk. This standard is met only when the risk is of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.  Criminal negligence standard requires the jury to find negligence so gross as to merit not just damages but also punishment. It does not spill over into recklessness; there is still no requirement that the defendant actually be aware of the- risk of harm. However, criminal negligence requires a more culpable mental state than simple, ordinary negligence. Santillanes v. New Mexico Facts: Defendant cut his nephew‟s neck with a knife during a scuffle and was convicted of child abuse under a statute that included negligently causing a child to be placed in danger. The trial court used a standard definition of civil (tort) negligence. Holding: The Supreme Court of New Mexico reversed, holding that the child abuse statute required a showing of criminal negligence instead of ordinary civil negligence. The court believed the statute was designed to punish morally culpable behavior, so it should rely on proof of a morally culpable state of mind. United States v. Jewell Facts: Defendant was convicted of possessing a controlled substance in violation of 21 USC §841(a)(1). At trial, the jury was instructed that violation of the statute required specific intent and that "knowledge" under the statute did not require that defendant had "positive knowledge" that a controlled substance was involved. Defendant appealed arguing that there is a difference between positive knowledge and the avoidance of positive knowledge. Holding: On appeal, the court affirmed and held that "knowledge" under §841(a)(1) encompassed not only "positive knowledge" but also "deliberate ignorance." Thus, evidence demonstrating that defendant was aware of the involvement of controlled substances, but consciously avoided "positive knowledge," allowed a jury conviction of defendant.

11

12
Reasoning: The government is not required to prove that the defendant actually knew the exact nature of the substance with which he was dealing. A defendant who has knowledge that he possesses a controlled substance has the state of mind necessary for conviction even if he does not know which controlled substance he possesses.  When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist.

B. Mens Rea and Strict Liability  Model Penal Code § 2.05 - When Culpability Requirements Are Inapplicable  (1) The requirements of culpability do not apply to:  (a) Offenses that constitute violations, unless the requirement involved is included in the definition of the offense or the Court determines that its application is consistent with effective enforcement of the law defining the offense; or  (b) Offenses defined by statutes other than the Code, insofar as a legislative purpose to that effect plainly appears.  (2) Notwithstanding any other provision of existing law and unless a subsequent statute otherwise provides:  (a) When absolute liability is imposed with respect to any material element of an offense defined by a statute other than the Code and a conviction is based upon such liability, the offense constitutes a violation; and  (b) Although absolute liability is imposed by law with respect to one or more of the material elements of an offense defined by a statute other than the Code, the culpable commission of the offense may be charged and proved, in which event negligence with respect to such elements constitutes sufficient culpability and the classification of the offense and the sentence that may be imposed therefor upon conviction are determined by § 1.04 and Article 6 of the Code.  Malum In Se [Inherently Wrong] v. Malum Prohibitum [Conduct that is Prohibited]  Conduct that is wrong because it is prohibited referred to as “public welfare offenses.”  Courts usually hold that criminal liability may be permitted without regard to fault in the case of public welfare offenses. Why and when?  Public welfare offenses are not derived from the common law;  When a single violation of such an offense can simultaneously injure a great number of people;  When the standard imposed by the law is reasonable;  When the penalty for violation is relatively minor; and  When conviction rarely damages the reputation of the violator.  Government ignores the particular care that the Supreme Court have taken to avoid construing a statue to dispense with the mens rea where doing so would criminalize a broad range of apparently innocent conduct.  i.e., punishing a violation as a felony is incompatible with theory a public welfare offense.
United States v. Balint Facts: Defendants were indicted for violating the Narcotic Act of 1914 by selling derivatives of opium and coca leaves without filling out a required form. Trial court sustained a demurrer on the ground that they didn‟t know they were selling prohibited drugs. Holding: The Supreme Court reversed the trial courts decision, holding that the defendants‟ lack of knowledge didn‟t matter; Court said the purpose of the statute was to require drug distributors to ascertain whether they are selling prohibited drugs. Reasoning: Court stated that in making the law in question, Congress had decided that it was more important to protect buyers of drugs from dangerous substances than to protect from punishment those sellers who might be ignorant of the law. In public welfare statutes, the providers of goods and services have a duty to discover risks and remove them, because ordinary consumers can‟t assess the risks themselves. United States v. Dotterweich Facts: Dotterweich was president and general manager of a corporation that received mislabeled drugs from manufacturers and sent them out with new, still incorrect, labels. He was convicted of “shipping mislabeled or adulterated products in interstate commerce in violation of the Federal Food, Drug and Cosmetic Act.”

12

13
Holding: The Supreme Court affirmed the conviction, holding that the statute required no mens rea with respect to whether the defendants knew or should have known that the drugs were mislabeled. Reasoning: Court said Congress intended to place the burden of ascertaining the correct labeling of drugs on those who at least had the opportunity to inform themselves of the condition of the drugs, rather than leave the public completely exposed to the risk. “Balancing relative hardships, Congress has preferred to place it upon those who have at least the opportunity of informing themselves of the existence of conditions imposed for the protection of consumers before sharing illicit commerce, rather than throw the hazard on the innocent public who are wholly helpless.” Morissette v. United States Facts: Morissette was indicted and convicted of “knowingly converting” government property. His defense was that he honestly believed that the bomb casings he took and sold had been abandoned by the Air Force, so he didn‟t know he was committing a crime. The judge instructed the jury that the question of mens rea referred simply to whether he intended to take the property. Holding: The Supreme Court reversed on the trial court error, stating that in order to be convicted, Morissette would have had to know that the property was not abandoned, and therefore he was wrong to convert it. Reasoning: Court acknowledged that some modern statutes (i.e. Balint) do not require intent for good policy reasons. In contrast, crimes adopted from common law, including theft and its variations, have always involved some form of intent, so the presence and degree of intent need not be specified in statute. Congress‟ silence must be construed in light of an unbroken course of judicial decisions imputing intent. States have always imputed intent in larceny-type offenses when none is explicit.

C. Mens Rea and Mistake of Fact  Moral-Wrong Doctrine  One can make a reasonable mistake and yet manifest a bad character or otherwise demonstrate worthiness of punishment.
Regina v. Prince Facts: A young man was convicted of “unlawfully taking a girl under 16 without parental permission.” The man testified that he was mistaken about her age because she‟d said she was 18 (even though she was actually 14). Holding: The appellate court affirmed, saying that when one acts wrongly (by taking a girl of whatever age away from her parents), one does so at one‟s own risk. Reasoning: In light of J. Bramwell‟s belief that defendant‟s conduct was self-evidently wrong, he imputed to defendant knowledge that he was acting immorally. A person should be liable for consequences of a moral wrong; excuses won't do. Dissent: If the mistake the man made would have rendered his conduct lawful, and the mistake was based on reasonable grounds and weren‟t based on reckless disregard for truth, then he shouldn‟t be found guilty. A person should be liable for the consequences of a legal wrong; excuses may be a defense.

 Legal-Wrong Doctrine  For example: defendant is guilty of criminal offense X, despite a reasonable mistake of fact, if he would be guilty of a different, albeit lesser, crime Y, if the situation were as he supposed.  J. Brett applied the doctrine in the dissent of Regina v. Prince; defendant‟s conduct, as he supposed it to be, did not constitute any other offense, so he voted to overturn the conviction.  A criticism of the legal-wrong doctrine is that it authorizes punishment based on the harm that an actor caused – i.e., the actus reus of the greater offense – while it ignores the fact that the actor‟s mens rea was at the level of the lesser crime.
People v. Olsen Facts: Defendant was convicted of lewd of lascivious conduct with a child who was 13 years and 10 months old, in violation of Cal. Penal Code §288(a) which prohibits lewd or lascivious acts with a child under 14. Holding: Court rejected defendant's good faith, reasonable mistake as to the victim's age defense. Reasoning: The reasoning in previous cases compelled this conclusion. Cal. Penal Code §1203.066, which rendered eligible for probation certain persons convicted of lewd or lascivious conduct who honestly and reasonably believed the victim was 14 or older, strongly indicated that the legislature did not intend such a defense to a §288 charge. Section 288 and several other penal statutes reflected the strong public policy to protect children under age 14 from lewd or lascivious conduct.  Court seems to imply that the burden is on the actor to take affirmative steps to establish the actual age of a minor before engaging in sexual activity. Dissent: Held that to find criminal conduct and sentence a person to prison notwithstanding his eligibility for probation, when without the mistake no criminal conduct would exist, sounds like cruel and unusual punishment.

13

14
 Model Penal Code § 2.04 – Ignorance or Mistake of Fact  (1) Ignorance or mistake as to a matter of fact or law is a defense if:
  (a) The ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense; or  (b) The law provides that the state of mind established by such ignorance or mistake constitutes a defense.  (2) Although ignorance or mistake would otherwise afford a defense to the offense charged, the defense is not available if the defendant would be guilty of another offense had the situation been as he supposed.  In such case, however, the ignorance or mistake of the defendant shall reduce the grade and degree of the offense of which he may be convicted to those of the offense of which he would be guilty had the situation been as he supposed.
 Unlike

common law doctrine of legal-wrong, which maintains that the defendant is guilty of the higher offense, MPC only permits punishment at the level of the lesser offense.

D. Mens Rea and Mistake of Law  Model Penal Code § 2.02(9) - Culpability as to Illegality of Conduct  Neither knowledge nor recklessness or negligence as to whether conduct constitutes an offense or as to the existence, meaning or application of the law determining the elements of an offense is an element of such offense, unless the definition of the offense or the Code so provides.  Model Penal Code §§ 2.04(3) and 2.04(4) – Ignorance or Mistake of Law  (3) A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when:  (a) The statute or other enactment defining the offense is not known to the actor and has not been published or otherwise reasonably made available prior to the conduct alleged; or  (b) He acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in (i) a statute or other enactment; (ii) a judicial decision, opinion or judgment; (iii) an administrative order or grant of permission; or (iv) an official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offense.  (4) The defendant must prove a defense by a preponderance of evidence.  Reasonable Reliance Doctrine – Personal Interpretation of the Law  A person is not excused for committing a crime if she relies on her own erroneous reading of the law, even if a reasonable person – even a reasonable law-trained person – would have misunderstood the law.
People v. Marrero Facts: Defendant (a federal corrections officer) was charged with possession of a firearm; defendant testified that he was aware of the statute, which had an exception for “peace officers;” He had consulted with fellow officers and teachers about the meaning of the statute and honestly believed that he was following the law. Holding: The Court of Appeals of New York held that misinterpretation of a law, even if that misinterpretation is reasonable, is not an excuse for violating the law, because the law at issue imposes criminal liability regardless of intent. To rule otherwise, said the court, would allow the exception (the reasonable mistake exception) to swallow the rule (that requires intent). The court narrowly interpreted the mistake doctrine. Reasoning: The Court interpreted NY‟s penal code to comport with MPC – holding that the statute must in fact authorize the conduct, and afterward is determined to be invalid or erroneous. To hold otherwise would encourage people to construe criminal statutes however they fell and lead to bad-faith defenses. Hopkins v. State Facts: Defendant convicted of violating a statute making it unlawful to erect or maintain any sign intended to aid in the solicitation or performance of marriages. On appeal, defendant argued that trial judge erred in excluding

14

15
testimony offered to show that the State‟s Attorney advised him before he erected the signs that they would not violate the law. Holding: The Court affirmed the conviction. Reasoning: Advice of counsel, even though followed in good faith, is not an excuse to a person for violating the law and cannot be relied upon as a defense in criminal action. If the accused could be exempt ed from punishment for crime by reason of the advice of counsel, such advice would become paramount to the law.

E. Ignorance or Mistake that Negates Mens Rea  Specific Intent Offenses
Cheek v. United States Facts: Defendant, an anti-tax activist, failed to file a federal income tax return for six years, although he received wages each year as an airline pilot. Defendant was charged with six counts of “willfully” failing to file federal income tax returns but testified that he attended seminars sponsored by an anti-tax organization, and that an attorney from that group indicated that wages were not income. He testified he believed he was not required to report his wages. He requested the judge instruct the jury that defendant was not guilty of the offense if he believed, even unreasonably, that he was not legally required to report his wages. Holding: The trial judge did not so instruct the jury, and the Supreme Court held that as error. If the jury believed defendant‟s testimony, his mistake regarding the meaning of the term income under the IRS disproved that he “intentionally violated a known legal duty.”

 General Intent Offenses
Regina v. Smith Facts: Defendant was convicted of destroying the property of another while moving out of apartment; he claimed that he thought the property belonged to him. Prosecution argued that the mental element of the offense related only to the property damage or to destroying the property. Holding: The conviction was reversed. Reasoning: It is not possible to exclude the words “belonging to another” which describe the property. Thus, a person who damages property he honestly, but mistakenly thinks is his own, has committee no offense.

 Fair Notice: The Lambert Principle
Lambert v. California Facts: Defendant was convicted of a statute requiring convicted persons to register in the state of California; defendant was fined $250 and placed on probation for three years. Defendant did not know that she was required to register. Holding: The Supreme Court overturned her conviction. “Actual knowledge of the duty to register or proof of the probability of such knowledge” was a constitutional prerequisite to conviction for violation of the registration statute. Reasoning: The Court distinguished between conduct which is wholly passive and the commission of acts, or the failure to act under circumstances and suggested that three aspects of the ordinance concerned the Court: (i) it punished an omission; (ii) the duty to act was imposed on the basis of status, rather than on the basis of activity; and (iii) the offense was malum prohibitum.  Might require that all three factors be present to entitle a law violator to a constitutional defense.

RAPE A. The Common Law Approach  Defining Rape Under the Common Law  The Common Law defined rape as (i) sexual intercourse [penis → vagina only] by a man with a woman not his wife (ii) by force or threat of force (iii) without consent, or (iv) with a victim who could not consent because she was unconscious, mentally disabled, or of a young age, or (v) by fraud in the factum.  N.B. The common law did not specify the mens rea of rape!  The Marital Exemption  Under the common law, a married woman could not be raped by her husband.  The rule was justified by four general rationalizations: (i) Consent/Property. By matrimonial consent and contract, the wife had given consent and she cannot retract. At common law, wife was the virtual property of the husband therefore the husband

15

16
possessed an unlimited right of sexual access to her; (ii) Protection of the Marriage. Exemption needed to protect against governmental intrusion into marital privacy and to promote reconciliation of the spouses; (iii) Protection of the Husband in Divorce Proceedings. If husband can be prosecuted for rape of his wife, she might use this threat as leverage in property settlement negotiations in divorce proceedings; (iv) Less Serious Harm. When intercourse is coerced on a given occasion in the marital relationship, the wife‟s autonomy is less seriously violated than if the perpetrator were a stranger or someone with whom the victim had not indicated a general willingness to have sexual relations.  The Actus Reus of Rape  Rape requires a voluntary act by defendant, though intentional intercourse is seldom in dispute.  The prosecution must prove penetration.  Occasionally, a defendant might raise the defense of impotence or intoxication.  A claim of impotence is generally an evidentiary claim denying penetration, while intoxication usually is relevant to mens rea [not necessarily, i.e., “whiskey dick”].  The Mens Rea of Rape  Since the common law did not specify the required mens rea for rape, the prosecutor had to prove that the defendant intentionally had intercourse with a woman he knew was not his wife and that the defendant intentionally used force or threatened serious harm.  It also raised the issue of whether the prosecution had to prove that the defendant knew or, instead, only that he should have known that the woman had not consented.
Regina v. Morgan Facts: According to the facts, three men were convinced by the victim‟s husband to come over to their house and have sex with his wife. The husband told them not to worry if his wife struggled because she was “kinky” and only enjoyed sex this way. The three men proceeded to have sex with the victim despite her resistance. At trial, the judge instructed the jury that the defendants should only be acquitted if their mistake regarding the victim‟s consent was “reasonable.” The men were subsequently charged with forcibly raping the victim. Holding: On appeal, the House of Lords concluded that rape was a specific intent crime and that, consequently, intention applied to all of its elements; nonconsensual sexual intercourse. Therefore, it determined that a defendant‟s belief that the woman was consenting, even if unreasonable, negates knowledge of non-consent. Notes: In reaction to the decision, Parliament subsequently enacted a new rape law that only required the prosecution to prove that the defendant was reckless as to the victim‟s non-consent.

B. The Modern Approach  Model Penal Code § 213.1 – Rape  (1) A male who has sexual intercourse with a female not his wife is guilty of rape if:  (a) He compels her to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone; or  (b) He has substantially impaired her power to appraise or control her conduct by administering or employing without her knowledge drugs, intoxicants or other means for the purpose of preventing resistance; or  (c) The female is unconscious; or  (d) The female is less than 10 years old.
 Rape

is a felony of the second degree unless (i) in the course thereof the actor inflicts serious bodily injury upon anyone, or (ii) the victim was not a voluntary social companion of the actor upon the occasion of the crime and had not previously permitted him sexual liberties, in which cases the offense is a felony of the first degree.

 MPC expands behavior that can constitute rape (i.e., vaginal, oral, and anal penetration).  Focuses on the actor‟s behavior rather than on his internal thought processes – specifically

upon the “objective manifestations of aggression by the actors” rather than trying to decipher his state of mind concerning the victim‟s consent.  Non-consent and resistance are not elements of the crime.

16

17
prosecution does not have to prove that the defendant knew his victim had not consented or that the victim had resisted.  MPC is silent on the admissibility of evidence of the complainant‟s sexual history or reputation and the admissibility of expert testimony regarding rape trauma syndrome.  N.B. Most states have not adopted the MPC‟s proposed definitions of rape.  Model Penal Code § 213.1 – Gross Sexual Imposition  (2) A male who has sexual intercourse with a female not his wife commits a felony of the third degree if:  (a) He compels her to submit by any threat that would prevent resistance by a woman of ordinary resolution; or  (b) He knows that she suffers from a mental disease or defect which renders her incapable of appraising the nature of her conduct; or  (c) He knows that she is unaware that a sexual act is being committed upon her or that she submits because she mistakenly supposes that he is her husband.
 In  The

contrast to the common law, “threat” under the MPC can include nonviolent but nonetheless coercive threats such as economic loss.

C. Actus Reus: Physical Force and “Reasonable Fear”  Independent Requirements for Conviction:  No consent – not enough alone.  Force/Resistance – courts require aberrational force (i.e., being carried off, pushed onto a bed, held down, etc… could be desired ad is therefore not aberrational).  Non-consent + force beyond penetration.  N.B. Not an issue of gradation – there is No Offense without force.  The Traditional Requisite Amount of Force  Most courts require the defendant to use physical force that subdues the victim or to threaten death or serious bodily harm to the victim or to a third person.  Similarly, most statutory definitions of force require the defendant to use additional force beyond that necessary to accomplish penetration.  N.Y. Penal Law § 130.00(8) states, “Forcible compulsion means to compel by either…the use of physical force; or…a threat, express or implied, which places another in fear of immediate death or physical injury to himself, herself, or another person…”
State v. Rusk Facts: Victim met defendant in a bar. Victim thought defendant knew her friend. Defendant asked victim for a ride home. After driving him and pulling along curb in front of defendant‟s apartment, victim claimed defendant turned off ignition and took victim‟s keys. Defendant then ordered victim into his house (while keeping the keys), undressed her and had sex with her. At one point, victim said, “if I do what you want, will you let me go?” to which defendant replied “yes.” When victim started to cry and defendant began to lightly choke her. Defendant claimed that victim was a willing participant and that she got uptight when it was over. The jury found that the victim was in reasonable fear for her life and that defendant was guilty. Intermediate appeals court reversed. Holding: On appeal, the court reversed again and affirmed the original verdict. “Force” is an essential element and requires showing that the victim resisted and that the victim was overcome by force or prevented from resisting by threats to her safety. If the victim did not resist because of fear, the fear must have been genuine and reasonable. Reasoning: Vast majority of jurisdictions have required that victim‟s fear be “reasonably grounded” in order to obviate the need for either proof of actual force on the part of the assailant or physical resistance on the part of the victim – this is a question of fact for the jury to determine. Dissent: Held that the victim must resist unless the defendant has objectively manifested his intent to use physical force to accomplish his purpose.  Rusk Variation: What if there was no choking?  Court says that it would then overturn the conviction.  MPC § 213.1 and the requirement of “force or by threat of imminent death, serious bodily inju ry, extreme pain or kidnapping…” is a very strict standard.

17

18
Commonwealth v. Berkowitz Facts: Victim was college student and entered boyfriend‟s dorm room. Roommate (defendant) was inside sleeping. Defendant woke up and victim stayed – they wound up having sex. Defendant removed the victim‟s clothes without additional force. Defendant also apparently locked the door and ignored the victim when she said “no” and tried to leave. Holding: The court overturned the conviction for rape but reinstated a conviction for indecent assault. The court held that saying “no” is an issue of consent but is not relevant to the issue of force. Reasoning: Where there is a lack of consent, but no showing of either physical force, a threat of physical force, or psychological coercion, “forcible compulsion” requirement is not met. Generally, nonconsensual intercourse is “forcible” if the male uses or threatens to use force likely to cause serious bodily harm to the female or, possibly, a third person.

D. Actus Reus: New Jersey‟s Strict Approach to Sexual Assaults  The New Jersey Standard.  State Supreme Court interpreted the statutory language of “physical force” to mean “any unauthorized sexual penetration.”  Non-consent + force of penetration.
State in the Interest of M.T.S. Facts: A 17-year-old boy penetrated a 15-year old girl. She testified that she was asleep and woke up with him on top of her, and immediately protested. He testified that they had been kissing and started having intercourse, when she suddenly changed her mind. The jury found that she was not asleep, but she hadn‟t consented. He was judged delinquent, but the judgment was reversed on appeal because he had not used force beyond the force inherent in penetration. Holding: On appeal, the court concluded that any act of sexual penetration engaged in by the defendant without the affirmative and freely given permission of the victim to the specific act of penetration constitutes the offense of sexual assault. Without such permission, any force used, even the force inherent in the sexual act itself, justifies a forcible rape prosecution. Reasoning: Authorization must be such that a reasonable person would believe that affirmative and freely given permission for penetration has been given. Failure to protest is irrelevant. A male commits forcible rape if he has intercourse without securing affirmative permission – a “yes” in words or action – before proceeding. Notes: Court‟s holding effectively reads “force” out of statute – question of rape turns on consent.  Makes sense if you think of rape as a violation of autonomy, not a crime of violence.  Critics of the rule argued that the higher standard does not accomplish anything since the trier of fact will still have to determine whether consent is affirmatively and freely given in each context – appearance of consent may vary from context to context.  Unless the court would be willing to say that NO types of threats or offers are EVER permissible in a sexual relationship, we are not better off with this higher standard.  N.B. Standard doesn‟t say that the defendant has to know the victim‟s mental state.

E. Actus Reus: Nonviolent Threats  A Broader Concept of Threats.  Some states have broadened the concept of physical force to include such things as duress or menace; coercion; extortion; positions of authority; and physical, intellectual, moral or psychological force, either express or implied.  Other states limit “force” to a basic meaning of physical compulsion or threat of serious harm.
Commonwealth v. Mlinarich Facts: Victim was a 14 year-old girl who had been in a juvenile detention center before being given over to the care of defendant. Victim submitted to defendant‟s sexual advances after he had threatened to send her back to the detention home if she refused. Holding: Court held that rape requires actual physical compulsion or violence sufficient to prevent resistance by a person of reasonable resolution. Reasoning: The court worried that to hold otherwise will be to classify extortion or sexual harassment as rape. State v. Thompson Facts: Defendant, a high school principal, allegedly forced one of his students to submit to sexual intercourse by threatening to prevent her from graduating from high school. Holding: The court affirmed the dismissal of sexual assault charges. Reasoning: Phrase “without consent” was statutorily defined as “the victim is compelled to submit by force of by threat of death, bodily injury, or kidnapping to be inflicted on anyone.” The court defined “force” as “used in

18

19
its ordinary and normal connotation: physical compulsion, the use of immediate threat of bodily harm or injury.” The court found that there was intimidation; however, it would stretch the definition of force to include intimidation, fear, or apprehension.  Yet, a forcible rape prosecution is appropriate, even if the female‟s fears are unreasonable, if the male “knowingly takes advantage of that fear in order to accomplish sexual intercourse.”

F. Actus Reus: The Victim‟s Resistance  The Current State of Law.  About ½ of the states, either by statute or by case law, no longer require the victim to resist.  Eliminating resistance as an element of rape is seen as decreasing the risk that victims who fight back may suffer greater physical injury than if they remained passive.  Studies have demonstrated that while some women respond to sexual assault with active resistance, others “freeze” and become helpless from panic and numbing fear.  Unfortunately, in the other ½ of the states that still retain a resistance element, critics have argued that the courts have too often not regarded verbal resistance as satisfying resistance.
People v. Warren Facts: Defendant carried a much smaller woman into the woods and had sex with her. The victim did not scream, fight back or attempt to flee. Holding: The court overturned the defendant‟s conviction. The court reasoned that her actions, or lack there of, conveyed the impression of consent [court never actually says she consented]. It held that she must communicate in an objective way her non-consent – presumably through resistance.

G. Actus Reus: Non-consent and Deception  Sexual Assault by Fraud  “Fraud in the factum” occurs where the defendant deceives the woman about the nature of the act (i.e., a gynecologist who inserts his penis instead of a medical instrument).  In contrast, “fraud in the inducement” occurs when the defendant occurs when the woman is deceived but understands that she was having sexual intercourse.
Boro v. Superior Court Facts: Victim receives call from defendant, posing as a doctor, informing her that her blood tests show that she has a serious disease. Defendant tells her that she can either have a painful, complicated and expensive surgery, or she can have sex with an anonymous donor who has been injected with a serum that can cure the disease. Victim chooses the latter, goes to a hotel room, pays defendant $1k and has sex with him. Holding: The court held that the California rape statute did not include fraud in the inducement. Note: After this decision, California legislature enacted a new provision, which included fraudulent inducement in the crime of rape. People v. Evans Facts: The defendant picked up a naïve girl from JFK Airport, told her that he was conduction a social psychology experiment and asked if she wanted to participate for some compensation. Defendant brought her back to his apartment and said, “I could kill you, I could rape you, I could hurt you physically,” and the girl got frightened. He said he was demonstrating how dangerous NYC was and then played on her sensitivities. They then had repeated sexual encounters. Holding: The court held that it is not rape if sex is achieved by fraud, trick, or stratagem. If there is actual consent (i.e., the nature of the sexual act is understood), then it is not rape – absent a statute.

H. Mens Rea of Sexual Assault  What Must the Actor Know & How Can the Actor Know It?  Majority of jurisdictions hold that the negligence standard satisfies the mens rea for rape.  The negligence standard, however, is problematic.  Grading. A rape conviction under negligence standard can carry up to 20-year prison term, whereas negligently killing an individual can be a low as 4 years.  Culpability. Criminal liability without subjective fault seems inconsistent.  Effectiveness. Does the negligence standard force a higher standard of care upon sexually active men and women? Would seem to create more lawsuits determining whether the defendant was reasonable in his or her assumptions.

19

20
 Very few jurisdictions set the required mens rea standard at recklessness.  A few others (but major metropolises) set the standard as strict liability.  Applying A Reasonableness Standard – The Gender Gap  Men and women often have differing views on what is reasonable and what is consent.
Commonwealth v. Sherry Facts: During a party, Sherry and two other doctors took the victim to a house in another city, where they each had sex with her. She testified that she did not consent to going to the house or having sex with any of them; they testified that she consented to everything. The three men were charged with kidnapping and rape; the kidnapping charges were dismissed, but they were convicted of rape. Defendants had requested a jury instruction that would have required the jury to find that they had actual knowledge of the victim‟s non-consent in order to convict, and not look at the case from the victim‟s point of view. Under this instruction, “mistake of fact” would have been a valid defense. The instruction was denied. Holding: The Supreme Judicial Court held that there was sufficient evidence for a reasonable jury to find the defendants guilty of rape. The court held that an objective standard (whether a reasonable person would have known that she did not consent) was correct. Reasoning: The judge said the defendant might have been successful in asking for a mens rea of negligence – in which they would need to be unreasonable in their belief in lack of consent in order to be convicted. Mass. courts later rejected negligence in favor of strict liability for rape, but most courts use negligence, allowing a mistake defense when the mistake is reasonable and honest.  A reasonable mistake of fact as to whether there was consent may be a defense to rape if that defense (mistake of fact) is based on a reasonable good-faith standard. In traditional rape statutes, it was easier to avoid the “mistake” rule because you were required to show victim resistance (which made it hard to say “I thought I had consent but I was wrong.”).  Now, there is more of an issue because you could have no consent but also no evidence of non-consent and still be charged with rape – thus, if a person could reasonably have been mistaken as to consent, that is a valid excuse under the law – and the jury would have to find beyond a reasonable doubt that the defendants lacked consent but ALSO that the defense was put forward in a reasonable good faith way.  “The essence of the offense of rape is lack of consent…when a woman says „no,‟ any implication other than a manifestation of non-consent that might arise in a man‟s psyche is irrelevant.”  “The man proceeds at his peril” – essentially assuming the risk. Commonwealth v. Lopez Facts: Defendant raped a young woman. While there was no physical struggle, she repeatedly told him she didn‟t want to have sex. He was convicted of rape but appealed, saying he reasonably but mistakenly believed he had consent and should have been given a mistake of fact jury instruction. Holding: The court said that he was not entitled to a mistake of fact jury instruction – that in reviewing the elements of rape that are necessary for a conviction, the jury would make a decision as to mens rea. If they found mens rea, then they could not have found a mistake of fact – it would be redundant. Commonwealth v. Fischer Facts: The dispute was over consent. At trial, the defendant was convicted of involuntary deviate sexual intercourse. He appealed on the grounds of ineffective counsel, arguing that his counsel should have requested a jury instruction that he could be found not guilty if he reasonably believed that she consented. Holding: The court held that Pennsylvania law has no requirement for mens rea in rape cases; only force or threat of force without the person‟s consent. The definition of “force” has been greatly expanded, which the court says makes it more willing to consider adding mens rea. However, they cannot find counsel ineffective on this ground. Reasoning: The prosecution did not have to prove mens rea with respect to the victim‟s lack of consent – all the prosecution has to prove is a lack of consent.  Generally, rape is a general-intent offense – although a specific intent to have nonconsensual intercourse is not an essential element of the crime, a defendant is guilty of rape if he possessed a morally blameworthy state of mind regarding the female‟s lack of consent.  General rule is that a person is not guilty of rape if he entertained a genuine and reasonable belief that the female voluntarily consented to intercourse with him.  Minority view in the United States is that even a defendant‟s reasonable mistake of fact regarding a female‟s lack of consent is not a defense.

20

21
HOMICIDE A. Intended Killings Under the Common Law  Black’s Law Dictionary: “The killing a man, whether lawfully or unlawfully, is homicide.”  “Original” Murder – Killing with “Malice Aforethought”  The courts of England interpreted the words to mean precisely what they suggest in ordinary English: an intentional, preplanned, deliberate killing, motivated by ill will toward the victim.  By the 19th century, the term “malice aforethought” was further refined in England to mean any killing with: (a) intention to cause the death of, or grievous bodily harm to, any person…and/or (b) knowledge that the act which causes death will probably cause the death of, or grievous bodily harm to, some person…although such knowledge is accompanied by indifference or by a wish that it may not be caused…”  Change in meaning meant that both those who wanted to kill and those who engaged in very dangerous conduct that they actually foresaw almost surely would (and did) result in death could be convicted of murder with “malice aforethought.”  There were no “degrees” of murder under the common law.  Presumed Malice  A person was “presumed” to intend the “natural and probable consequences of his act.”  A killing committed with a deadly weapon (defined as a weapon calculated to or likely to produce death or great bodily injury) was presumed to have been committed with malice.  Gradations of Murder  In response to the expansion of the meaning of “malice aforethought,” and considering the fact that murder was a capital crime, many state legislatures divided murder into two degrees.  First-Degree Murder (M1) was created to recapture the original meaning of malice aforethought and was applied only to killings by individuals who (i) thought about killing their victim (premeditated); (ii) brooded over it for some significant period of time (deliberated); and (iii) then killed willfully.  However, the American courts ameliorated the distinction by construing the term premeditation to encompass even split-second decision making.  Forethought is NOT the same as pre-meditation – you can have forethought in an instant and kill someone in an unplanned way – in fact, so long as there was conscious action to kill or commit another felony, you probably had malice aforethought.  Difficultly in determining whether there was premeditation. Without a defendant‟s testimony, juries must rely on evidence of planning, facts about the prior relationship of the defendant and the victim and evidence about the nature of the killing.  Premeditation does not always identify the worst crimes. A sudden, impassioned killing can certainly be more morally culpable than one that has been deliberated at length.  Second-Degree Murder (M2) became the “default” position for murder. If a killing was murder (committed within the broad notion of malice aforethought) but was not premeditated, it was second degree.
Commonwealth v. Carroll Facts: Carroll pleaded guilty to murder of his wife. He was found guilty of first-degree murder, and on appeal argued that he should be found guilty of at most, second-degree murder because the homicide was not premeditated or intentional. He had shot his wife in the back of the head while she slept, using a gun they kept by the bed, just after a heated and protracted argument. Defendant argued that, based on a psychiatrist‟s testimony, the homicide was a sort of an automatic reflex or impulse that he couldn‟t control. Holding: The court held that the evidence sustained the trial judge‟s verdict: there was no question that he remembered the gun, deliberately took it and fired two shots, which a reasonable jury could find sufficient proof of premeditation. The court stated very strongly that it couldn‟t allow psychiatrists to take over the role of determining criminal responsibility. Reasoning: Premeditation can occur in any amount of time, no matter how short.

21

22
 “Premeditation and deliberation can be formed while the killer is pulling the trigger that fires the fatal shots” – Young v. State [court‟s holding effectively removes premeditation requirement and leaves no different between M1 and M2]. State v. Guthrie Facts: Guthrie stabbed his coworker in the neck after the coworker taunted him and flipped a towel at his face. He had psychological problems including a fixation with his nose. He didn‟t understand why he overreacted to his coworker‟s taunting. A jury convicted him of first-degree murder and he appealed, stating that the jury instructions were unclear, equating premeditation with mere intent. Holding: The court held that the jury instructions didn‟t adequately distinguish between first and second-degree murders, and remanded for new trial. The court adopted a new instruction defining premeditation for first-degree murder, holding that there must be some evidence that defendant considered and weighed his decision to kill to establish premeditation. Reasoning: It is not necessary to prove premeditation existed for any definite period of time. But it is necessary to prove that it did exist. This means there must be an opportunity for some reflection on the intention to kill after it is formed. The accused must kill purposely after contemplating the intent to kill. Any interval of time between the forming of the intent to kill and the execution of that intent, which is of sufficient duration for the accused to be fully conscious of what he intended, is sufficient to support a conviction for first-degree murder.  In the jurisdictions, like W. Virginia, that require evidence of premeditation, prosecutors can show evidence such as: the relationship of the defendant to the victim; the type of weapon; circumstances of death (including location); reason/motive to take life; planning activities; difference in behavior leading up to the incident. State v. Anderson Facts: Particularly grisly killing of 10-year old girl by mother‟s boyfriend. Defendant stabbed the victim over 60 times. Mother and brother arrived at home to find blood and bloody clothing all over the house. Holding: The court held that the evidence found was insufficient for first-degree murder because there was no evidence of pre-meditation; no evidence of motive based on prior relationship; and nature of killing suggested explosive rage rather than pre-meditation. Reasoning: The court identified three categories of evidence pertinent to the determination of these elements: (1) planning activity; (2) motive; and (3) manner of killing (so particular and exacting that a jury could infer a preconceived design).  Anderson has since been construed to insignificance.

B. Intended Killings Under the Model Penal Code  Model Penal Code § 210.1 – Criminal Homicide  (1) A person is guilty of criminal homicide if he purposely, knowingly, recklessly or negligently causes the death of another human being.  (2) Criminal homicide is murder, manslaughter or negligent homicide.  Model Penal Code § 210.2 – Murder  (1) Except as provided in Section 210.3(1)(b) [extreme emotional/psychological disturbance], criminal homicide constitutes murder when:  (a) It is committed purposely or knowingly; or  (b) It is committed recklessly under circumstances manifesting extreme indifference to the value of human life. Such recklessness and indifference are presumed if the actor is engaged or is an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape.  (2) Murder is a felony of the first degree, but a person convicted of murder may be sentenced to death, as provided in Section 210.6 [consideration of aggravating/mitigating circumstances].
 N.B.

The MPC‟s definition of “reckless” requires that the defendant subjectively recognize the risk of death. Even if the defendant is reckless, the death must also occur under “circumstances manifesting extreme indifference.” If this does not occur, and the defendant is merely reckless, the death is manslaughter, not murder.

22

23
C. Provocation Under the Common Law  Traditional Provocation (Girouard v. State):  Adequate provocation falls into recognized categories: (i) assault, (ii) mutual combat, (iii) unlawful arrest, (iv) injury or serious abuse of a relative, (v) or sudden discovery of a spouse‟s adultery.  Words are not enough.  Provocation causes an individual to act from passion rather than reason.  There can be no cooling off period before the actor retaliates against the provoker.  Provocation and Manslaughter  Provocation (“sudden heat of passion”) – common law defense contains four elements: (1) the actor must have acted in the heat of passion; (2) the passion must have been the result of adequate provocation; (3) the actor must not have had a reasonable opportunity to cool off; and (4) there must be a causal link between the provocation, the passion, and the homicide.  States of passion include any “violent, intense, high-wrought or enthusiastic emotion; sufficiently broad to include fear, jealousy and wild desperation.”  Modern Approach to Provocation (Maher v. People):  Provocation doesn‟t need to fit into a common-law category – it could be anything that would reasonably, and actually did, produce “heat of passion.”  The jury decides whether there was adequate provocation and how long, if any, of a cooling off period there can be.
State v. Thornton Facts: Defendant and wife were having marital problems and were separated. Defendant went to see wife to talk and found her with another man. Defendant watched them for a while, left, and came back. He heard s ounds of sex from the window, burst though the door and found the wife and paramour naked in bed. Defendant claims guy came at him and he shot him from the hip. Victim later died from infection. Defendant was convicted of first degree murder. Holding: The court held that it was only voluntary manslaughter and reversed the first-degree murder conviction. Reasoning: “The commission of unlawful sexual intercourse with a female relative is an act obviously calculated to arouse ungovernable passion, and that the killing of the seducer or adulterer under the influence or in the heat of that passion constitutes voluntary manslaughter, and not murder, in the absence of evidence of actual malice. Girouard v. State Facts: One night during an argumen,t Girouard‟s wife began taunting and insulting him. He responded by stabbing her 19 times. The trial court convicted him of second-degree murder. He argued that Joyce‟s taunting constituted provocation that should mitigate the crime of murder to manslaughter. Holding: The appeals court held that wife‟s words were not sufficient provocation to cause a reasonable man to stab the provoker 19 times. As a matter of public policy, the court could not hold in favor of someone who ends a domestic dispute by killing. Reasoning: The traditional common-law view is that words alone are not enough to constitute provocation; the provocation must fall into one of a few specific categories.  For provocation to be adequate, “it must be calculated to inflame the passion of a reasonable man and tend to cause him to act for the moment from passion rather than reason.”  However, there must be not simply provocation in psychological fact, but one of certain fairly well defined classes of provocation recognized as being adequate as a matter of law. State v. Shane Facts: Defendant killed his fiancée after an argument where he confirmed that she had admitted sexual infidelity. Holding: The court upheld the general rule that words are not enough, even if the words have the effect of informing the defendant of some provocative event that has take place.  Nature of the reasonable person – subjective or objective; increasingly, juries are instructed to test defendant‟s reaction to a provocation by the standard of the ordinary person “in the actor‟s situation.” Maher v. People Facts: Maher followed his wife as she went into the woods with another man named Hunt. He later found the man in a saloon and shot him. Maher was charged with assault with intent to murder Hunt. Maher wanted to

23

24
present evidence that he was provoked by the likely possibility that his wife had committed adultery with Hunt just before the assault, but the trial judge would not allow him to present this evidence, and he was convicted. Holding: The appeals court held that the evidence should be admitted because a reasonable jury could have found that there was sufficient provocation to cause an ordinary man‟s reason to be obscured by passion to the point of hot-blooded killing. The jury should be allowed to make this finding even when it didn‟t fit the traditional categories. The judgment was reversed and remanded for a new trial. Reasoning: The Maher rule on what constitutes provocation is anything that the natural tendency of which would be to produce such a state of mind in ordinary men [of fair average disposition] that would be liable to cause them to act rashly without due deliberation or reflection; acting from passion, not judgment, and which the jury are satisfied did produce in the case before them.” Dissent: The dissenting judge pointed out that the intercourse did not occur in Maher‟s presence, so classifying such as sufficient provocation to mitigate a crime would give far too much weight to suspicions and rumors.

D. Provocation Under the Model Penal Code  Model Penal Code § 210.3 – Manslaughter  (1) Criminal homicide constitutes manslaughter when:  (a) It is committed recklessly; or  (b) A homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor's situation under the circumstances as he believes them to be.  (2) Manslaughter is a felony of the second degree.
People v. Casassa Facts: Casassa killed Victoria Lo Consolo after they dated casually for a few months and then she told him she wasn‟t interested. On the night of her death, he brought her a gift, which she refused, and then he brutally killed her. He was convicted of second-degree murder, but appealed, asking for manslaughter because of his emotional disturbance. Holding: The appeals court held that there was no error in the trial court‟s decision. The defendant had argued that he had “acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse.” The court found that defendant's emotional reaction at the time of the commission of the crime was so peculiar to him that under the statute, it could not be considered reasonable so as to reduce the conviction to manslaughter in the first degree. Reasoning: Casassa‟s argument rested on the MPC‟s language about defining reasonableness from the defendant‟s viewpoint, or someone in his situation. This standard is flexible, and the MPC comments say, “In the end, the question is whether the actor‟s loss of self-control can be understood in terms that arouse sympathy in the ordinary citizen.”  (2) The defense of "extreme emotional disturbance" has two prongs: (i) the particular defendant must have "acted under the influence of extreme emotional disturbance," and (ii) there must have been "a reasonable explanation or excuse" for such extreme emotional disturbance, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be.  The first prong is wholly subjective. It involves a determination that the particular defendant did in fact act under extreme emotional disturbance and that the claimed explanation as to the cause of his action is not contrived or sham.  N.B. Ought cultural differences, gender, or mental capacity be taken into account in determining what is "reasonable?"

E. Unintended Killings Under the Common Law  Legislative Grading of Unintended Killings
Common Law Grading Summary Murder 1 Murder 2 Voluntary Manslaughter Involuntary Manslaughter Malice + Willful, Deliberate and Premeditated Killing Malice or Recklessness Intent or Recklessness + Heat of Passion (Provocation) Recklessness OR Gross Negligence. Awareness of risk is NOT necessary.

24

25
Tort Liability Ordinary negligence

 N.B. “Negligence” in a criminal statute = “gross negligence” unless statute provides otherwise.
Commonwealth v. Welansky Facts: Defendant owned a nightclub that caught fire. He had allowed the emergency exits to be inadequately marked/blocked and many nightclub patrons and employees died in the fire. He was not there the night of the fire. Defendant was charged with and convicted of involuntary manslaughter by wanton or reckless conduct. Holding: The court said that there was a duty of care that a club owner owed to his customers as well as his obligations under the fire code. He knew or should have known of the grave and obvious danger that came from having inadequate emergency exits and as a result, many people died. Reasoning: The court held that the judge had correctly instructed the jury as to the meaning of wanton or reckless conduct, which can be either an act or omission where there is a duty to act, involving a high degree of likelihood that substantial harm will result. The state didn‟t need to prove that he caused the fire; only that his reckless disregard of his patrons‟ safety resulted in their deaths.  To be criminally negligent in MA, you have to surpass ordinary negligence and get into the realm of wanton/reckless conduct – which defendant did here.

F. Unintended Killings Under the Model Penal Code  The Model Penal Code Alternative Approach
Murder Manslaughter MPC Grading Summary (a) Purposely or Knowingly (b) Recklessness (extreme indifference to value of human life) (a) Recklessness; consciously disregarded a substantial and unjustifiable risk that his conduct would cause the death of another. Disregard was a gross deviation from expected norm.  Awareness IS required. (b) Extreme Emotional Disturbance Should have been aware of risk; failure to perceive it was gross deviation from norm.

Negligent Homicide

 Negligent Homicide usually involves a breach of duty leading to death or a negligent but unintended action leading to death that evidences a gross deviation from the standard applied by a reasonable person in the defendant‟s situation.  N.B. Negligence without knowledge of the possible consequences will probably only get you criminally negligent homicide whereas recklessness (with an extreme indifference for human life) will probably get you murder, or at the very least, voluntary manslaughter.  Model Penal Code § 2.08 – Intoxication  (1) Except as provided in Subsection (4) of this Section, intoxication of the actor is not a defense unless it negatives an element of the offense.  (2) When recklessness establishes an element of the offense, if the actor, due to self-induced intoxication, is unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial.  (3) Intoxication does not, in itself, constitute mental disease within the meaning of § 4.01.  (4) Intoxication that (a) is not self-induced or (b) is pathological is an affirmative defense if by reason of such intoxication the actor at the time of his conduct lacks substantial capacity either to appreciate its wrongfulness or to conform his conduct to the requirements of law.
People v. Hall Facts: Hall, a trained ski racer, collided with and killed Cobb. He was charged with felony reckless manslaughter, but the charges were dismissed on the grounds that reckless conduct occurs when death is “at least more likely than not” to result. Holding: On appeal, the court reversed and remanded, holding that the substantial risk needed to support a finding of recklessness can be less than 50% depending on the circumstances. The facts in this case could support a reasonable finding that Hall was reckless, in that he consciously disregarded a substantial and unjustifiable risk that he would kill another skier.

25

26
Notes: Colorado uses the Model Penal Code‟s definitions of manslaughter and negligent homicide, where the distinction rests on awareness of risk. When the remanded case went to trial, Hall was convicted of negligent homicide [found not to be reckless] rather than manslaughter.  Grammatically, “consciously” modifies “risk,” which must be both substantial & unjustifiable.  Hall court required subjective awareness of a substantial risk; not that it was also unjustifiable. State v. Williams Facts: A Native American husband and wife were convicted of manslaughter for negligently failing to obtain medical attention for the wife‟s 17-month-old baby, who died of an infection resulting from an abscessed tooth. They had treated him with aspirin, but were afraid to take him to a doctor because the Welfare Dept. might take custody of the baby. Holding: The court affirmed. There was sufficient evidence to allow the lower court to find that defendants were ordinarily negligent according to the standard of “caution exercisable by a man of reasonable prudence under the same or similar conditions.” Ordinary negligence was enough to constitute statutory manslaughter in Washington. Notes: Most jurisdictions require a higher standard of criminal negligence, rather than the ordinary negligence found in this case, for criminal convictions. An important part of the context of this case is that during the late 1960s and early 1970s, BIA and child protection workers took many Native American children away from their parents and reservations. The court mentions the defendants‟ ethnicity and other personal factors, such as level of education, but ultimately doesn‟t seem to take their situation into account.

 Distinguishing Between Murder and Manslaughter  May an actor's reckless conduct ever justify the law in holding the actor guilty of murder?
Common Law Jurisdictions Murder 2 (Malone, Gross Recklessness) Voluntary Manslaughter Involuntary Manslaughter    MPC Jurisdictions Murder Manslaughter (requires Recklessness) Negligent Homicide (requires Gross Negligence)

Commonwealth v. Malone Facts: Malone, age 17, was convicted of second-degree murder of his friend Long, age 13, after Malone shot Long during a game of Russian roulette. On appeal, he argued that the facts supported, at most, involuntary manslaughter. Second-degree murder would require malice. Holding: The court affirmed Malone‟s conviction of second-degree murder. It held that Long‟s death resulted from Malone‟s intentional act, done in reckless/callous/wanton disregard of the consequences, which he knew were likely to be serious harm or death. Reasoning: This was an act of gross recklessness, which necessarily involves malice. The likeliness of harm here was questionable; the court assumed it was 60%, but Malone testified that he believed the risk was 0%. Even setting aside the question of probability, the “depraved heart” aspect of the law makes this crime serious because he risked such horrible consequences for so little potential gain – his mild amusement. United States v. Fleming Facts: Fleming was convicted of second-degree murder after he killed a woman while driving extremely recklessly (weaving between lanes and speeding) while very, very drunk. On appeal, Fleming argued that he should have been convicted of manslaughter at most, for lack of malice aforethought. Holding: The appeals court affirmed Fleming‟s conviction of second-degree murder. The jury‟s finding that he acted with malice aforethought could reasonably have been based on evidence that his conduct was “reckless and wanton and a gross deviation from a reasonable standard of care,” and that he acted with disregard for the life and safety of others. Reasoning: The extreme recklessness of his driving made his behavior worse than that of an average drunk driver who is just attempting to drive normally.

G. Felony-Murder Rule  The Basic FMR Doctrine  The rule declares, “Any death occurring during the course of a felony is murder.”  It effectively implies malice and reduces the burden of proof needed for prosecution.  A Felony + Intentional/Reckless/Negligent/Non-negligent killing → Murder  Explained by the notion of “transferred intent” – the defendant‟s intent to engage in the felony is transferred to the resulting death.  Still requires the prosecution to prove “causation.”

26

27
 Argued that the purpose of the FMR is to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit.  Drafters of the MPC recommended eliminating the FMR under § 210.2, but provided that:  For purpose of establishing murder by an act “committed recklessly under circumstances manifesting extreme indifference to the value of human life,” the fact that the actor is engaged in robbery, rape, deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape creates a rebuttable presumption that the required indifference and recklessness existed.  Presumption of recklessness from committing an inherently dangerous felony is rebuttable.  In most jurisdictions, the presumption is NOT rebuttable. Committing an inherently dangerous felony substitutes for malice/recklessness.
Regina v. Serné Facts: Serné and his servant, Goldfinch, were indicted for the murder of Serné‟s mentally retarded son. They were accused of setting fire to Serné‟s house when his entire family was present. Holding: The judge instructed the jury that if they believed the defendants set fire to the house, they must convict the defendants of murder. The judge narrowed the definition of felony murder to “any act known to be dangerous to life and likely in itself to cause death, done for the purpose of committing a felony which causes death, should be murder.” It had previously been defined broadly to include any action that happened to cause a death during commission of a felony. Notes: This interpretation of the felony murder rule requires a mens rea similar to the MPC‟s definition of recklessness; defendants knew or should have known their actions were likely to cause death or serious bodily injury.  FMR Standard: Felony must be inherently dangerous to human life. People v. Stamp Facts: Defendants entered a building, ordered the employees to lie on the floor, robbed the building, and fled. The owner of the building was badly shaken up by the robbery. When the police arrived, the owner of the building told the police he did not feel well and had a pain in his chest. The owner then collapsed on the floor and was pronounced dead. The coroner's report listed the cause of death as heart attack. Stamp was convicted of first-degree (felony) murder. Holding: On appeal, the court affirmed the judgment. The court held that because the homicide was a direct causal result of the robbery, the felony-murder rule applied whether or not the death was a natural or probable cause of the robbery. Reasoning: “[A] felon is held strictly liable for all killings committed by him or his accomplices in the course of the felony.” There is no requirement that the killing occur while committing or while engaged in the felony, or that the killing be a part of the felony, other than that the few acts be a part of one continuous transaction. Thus the homicide need not have been committed to perpetrate the felony. There need be no technical inquiry as to whether there has been a completion or abandonment from the robbery before the homicide itself was completed.  FMR Standard: The felony-murder doctrine is NOT limited to those deaths, which are foreseeable. Rather a felon is held strictly liable for all killings committed by him or his accomplices in the course of the felony. As long as the homicide is (i) the direct causal result of the robbery and (ii) the victim's predisposing physical condition, regardless of its cause, is not the only substantial factor bringing about his death, the felony-murder rule applies whether or not the death was a natural or probable consequence of the robbery and regardless of the robber‟s ignorance of the victim‟s condition. King v. Commonwealth Facts: Defendant and his copilot were transporting 500lbs of marijuana in a light plane that became lost and crashed into a mountainside. Defendant survived the crash but the copilot did not. Defendant was later charged and convicted of felony murder. Defendant appealed. Holding: The appellate court reversed the conviction, holding that the drug-distribution crime was not the proximate cause of the copilot‟s death. Reasoning: Although the “but for” requirement of causation was met, the crash was not a foreseeable result of the felony since it was not made more likely by the fact that the plane‟s cargo was contraband. However, the court noted that, in contrast, if the plane had been flying at a low altitude to avoid detection, a finding of proximate causation might have been possible.

27

28
 The “Unlawful-Act” Doctrine  In many states, a misdemeanor resulting in death can provide a basis for an involuntary manslaughter conviction without proof of recklessness or negligence.  Cal. Penal Code § 192(b) states, involuntary manslaughter is a killing “in the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.”  In states following the common law formula, the prosecution can argue on the basis that the defendant‟s conduct amounted to criminal negligence under the circumstances.  In the states that recognize the unlawful-act doctrine, the prosecution only needs to show that the defendant‟s unlawful act caused the death; proof of criminal negligence becomes unnecessary.  Courts have tempered some of its harsh effects by (i) focusing on whether the unlawful act was a proximate cause to the victim‟s death; (ii) restricting the unlawful-act doctrine to malum in se as opposed to malum prohibitum misdemeanors; or by (iii) limiting the doctrine to misdemeanors that rise to the level of criminal negligence [dangerous to human life].
Murder 1 Murder 2 Voluntary MSL Involuntary MSL Enumerated in the statute, OR Malice + Willful, Deliberate and Premediated Malice from Recklessness (Malone), OR Malice from Felony Murder Rule Intent or Recklessness + Heat of Passion Criminal Negligence, or Recklessness/Negligence from Unlawful Act Doctrine

 The “Inherently Dangerous Felony” Limitation - Abstract  Courts have restricted the application of the FMR to only felonies that were always inherently dangerous to life and not merely that life was endangered by a particular course of events in which the felony in question was committed.  The court examines how the felony in question is perpetrated in most cases. If, most of the time, it is not dangerous to human life, then it is not considered dangerous in the abstract, even if, on occasion, a defendant does commit it so as to endanger life.
People v. Phillips Facts: Defendant chiropractor claimed he could treat an eight-year-old‟s cancer without surgery. He charged her parents $700 for treatment and medicine, which the prosecution said amounted to grand theft (theft by deception). The child died in about six months. The trial judge instructed the jury that it could convict of seconddegree murder if it found that the defendant committed grand theft and the child died as a proximate result. Holding: The court reversed, holding that only such felonies as are in themselves inherently dangerous to human life can support the application of the felony-murder rule. In assessing such peril to human life inherent in any given felony the court looks to the elements of the felony in the abstract, not the particular facts of the case. Reasoning: To fragmentize the course of conduct of a defendant so that the felony-murder rule applies if any segment of that conduct may be considered dangerous to life would widen the felony-murder rule beyond calculation. It would then apply not only to the commission of specific felonies, which are themselves dangerous to life, but to the perpetration of any felony during which defendant may have acted in such a manner as to endanger life. People v. Henderson Facts: Defendant held the victim hostage by holding a gun to his head. When the hostage ducked and attempted to deflect the barrel of the gun from his head, the gun went off and killed a bystander. The defendant was convicted of second-degree felony murder based on the felony of “false imprisonment…effected by violence, menace, fraud or deceit.” Holding: On appeal, the court reversed the conviction, holding that unlawful restraint of another does not necessarily involve the requisite danger to human life for a felony murder conviction and that statutory factors elevating the offense to a felony – violence, menace, fraud or deceit – do not all involve conduct that is life endangering, when viewing the felony as a whole in the abstract. Reasoning: The court reasoned that the legislature had not evinced a particular concern for violent as opposed to nonviolent acts of false imprisonment by separate statutory treatment, proscription, or punishment. Accordingly, the court could not conclude that the cause of deterring homicide during the commission of false imprisonment is better served by imputing malice to one who kills in the course of committing false

28

29
imprisonment rather than allowing the jury to determine directly the question of the presence of malice aforethought.  Court implicitly admitted that abstract approach to the FMR is exceedingly artificial, but the FMR is itself artificial and arbitrary. An abstract approach, therefore, serves to narrow the doctrine as much as possible.  The California Supreme Court defined an act as “inherently dangerous” to human life when there is a “high probability” that it will result in death.

 The “Inherently Dangerous Felony” Limitation – As Perpetrated  The court examines whether the felony in question was dangerous as perpetrated in the case.  Note that this approach makes the FMR virtually superfluous – if the jurors find that the defendant perpetrated the felony in question in a dangerous way, they can surely find that he was aware of this risk and acted recklessly and with a depraved heart.  Such a finding establishes mens rea by itself and makes the FMR unnecessary.
People v. Stewart Facts: Defendant mother of an infant went on a crack binge for 2-3 days and forgot to feed and care for the child, who died of dehydration. The mother was convicted of second-degree felony murder, where the felony was wrongfully permitting a child to be a habitual sufferer for want of food and proper care. Holding: The court affirmed the judgment of the trial court. The trial justice's instruction to the jury that, before it could find defendant guilty of second-degree murder, it must first find that wrongfully causing or permitting a child to be a habitual sufferer for want of food or proper care was inherently dangerous to human life in its manner of commission, was proper. Reasoning: The court stated that it believed that the better approach is for the trier of fact to consider the facts and circumstances of the particular case to determine if such felony was inherently dangerous in the manner and the circumstances in which it was committed, rather than have a court make the determination by viewing the elements of a felony in the abstract. Hines v. State Facts: While hunting, Hines mistook his friend Wood for a turkey, shot and killed him. Hines was convicted of felony murder, where the felony was possession of a firearm by a convicted felon. Holding: The court affirmed the conviction. The court held that under the circumstances (including the fact that Hines had been drinking, that he knew there were other hunters in the area, and he intentionally fired a shot without positively identifying his target), his possession of a firearm created a foreseeable risk of death, and therefore was an inherently dangerous felony. Reasoning: A felony is inherently dangerous when its “dangerous per se” or “by its circumstances creates a foreseeable risk of death.” Here, the specific circumstances made Hines‟ act inherently dangerous.  Approach looks at the facts, not at the defendant‟s mens rea.  The judge makes a determination about the dangerousness of circumstances; not the jury. Approaches to “Inherently Dangerous” Abstract: Looks at language of statute alone; is there any way to violate the statute without endangering human life? As Perpetrated: Looks at the particular circumstances in which the defendant committed the act. Was the risk of death foreseeable? Was there a high probability of death?

 The “Merger” Doctrine Under the FMR  The doctrine simply states that the predicate felony must not be one involving personal injury but have a purpose other than inflicting harm (i.e., an assault cannot trigger the FMR).  Most courts agree that if the underlying felony is assault or mayhem, the merger occurs.
People v. Burton Facts: Defendant killed a person while committing an armed robbery. The judge instructed the jury that they could find him guilty of first-degree felony murder, which they did. Defendant appealed, claiming that the armed robbery merged with the homicide, so felony murder was not appropriate. Holding: The court rejected the defendant‟s argument and held that the jury instruction was proper. The court held that if a felony and a homicide occur as the result of a single course of conduct with a single purpose, the felony murder rule does not apply because the felony was included in the homicide. However, if the homicide occurs as the result of an act with an independent felonious purpose, the felony murder rule applies. In this case, acquiring money or property by committing robbery was an independent felonious purpose.

29

30
 Example of the “single purpose” would be an assault with a deadly weapon that results in death; the felon  Applied the “included in fact” test – felony is included in the fact.
intended to inflict bodily injury, and his actions with that objective resulted in death.

People v. Mattison Facts: Defendant supplied methanol to a fellow inmate who later died from ingesting it. Defendant was convicted of second-degree murder on the basis of his act of furnishing the methanol in prison, a felony in California. Holding: The court affirmed the conviction, finding that the defendant‟s act had a purpose independent of any intent to kill and that the felony murder rule would have a deterrent force in this circumstance because a willingness to sell drugs for profit should be affected by knowledge that a fatality could lead to a murder conviction.  Applied the “independent purpose” test – felony is independent of the homicide. People v. Hansen Facts: Defendant, angered over a dispute with R, a rival drug dealer, drove past R‟s apartment building and fired shots into his apartment, killing V, another occupant. Defendant was convicted of second-degree murder on the predicate felony of discharging a firearm at an occupied dwelling (Cal. Pen. Code § 246). Holding: The court‟s majority affirmed the conviction, but it declined to rest that result on the theory that the defendant had an independent felonious purpose. Reasoning: The court rejected the independent-purpose test as fundamentally misguided. By that test, “a felon who acts with a purpose other than specifically to inflict injury upon someone – for example, with the intent to sell narcotics for financial gain – is subject to greater criminal liability for an act resulting in death than a person who actually intends to injure the person of the victim” [what would otherwise be an accidental killing (involuntary manslaughter) becomes murder because the defendant denies have an intent to kill].  Court chose to disallow as predicate felonies only those that would “elevate all felonious assaults to murder or to otherwise subvert the legislative intent.”  Because most violations of § 246 do not result in death, the court concluded that the § 246 offense did not merge, even though it is included in the homicide and might have an independent purpose.

 Killings Not “In Furtherance” of the Felony  A basic requirement of the FMR is that the act of killing must have been done in furtherance of the felony being committed.
People v. Gillis Facts: When a homeowner detected the defendant in the act of burglary, the defendant broke off his attempt and drove away in his car. Ten to fifteen minutes later, and about ten miles away, a trooper spotted a car matching the homeowner‟s description of the car he saw and tried to stop it. Defendant sped away and soon after collided with another vehicle, killing two of its occupants. None of the elements of the burglary were still taking place or being attempted, but it is well established that a felony continues to be “perpetrated” during a defendant‟s attempt to escape. Holding: The court ruled that the defendant was still feeling and hence was guilty of felony murder. State v. Amaro Facts: Police officers entered a house to arrest marijuana dealers making a sale. Defendant and several of his cohorts were captured. While an officer was still search the house, he was shot and killed by a co-felon who was still attempting to evade arrest. Holding: The court affirmed the convictions, finding that the co-felon‟s act was foreseeable and in furtherance of the common design. United States v. Heinlein Facts: Three defendants participated in the rape of a woman. In defending herself, the woman slapped the defendant, who, enraged at the blow, stabbed and killed her. Holding: The court held that the other two felons were not guilty of felony murder because the defendant‟s unanticipated actions, not in furtherance of the common plan, could not be attributed to them. People v. Cabaltero Facts: A lookout during a robbery panicked at the approach of a car and fired shots at the occupants. Angered by his co-felon‟s stupidity, the leader of the group shot and killed the lookout. Holding: The court affirmed the first-degree murder convictions of all the felons who were present, under a statute declaring all murder committed in the perpetration of robbery shall be murder in the first-degree.

30

31
Reasoning: The court reasoned that the shooting was connected to the ongoing felony and therefore was not the shooter‟s “frolic of his own.”

 Killings By Non-Felons Not “In Furtherance” of the Felony  Liability for actions of police officers or private citizens trying to thwart the attempted crime?
State v. Canola Facts: Defendant and three accomplices were robbing a store when the storeowner fatally shot an accomplice, and an accomplice fatally shot the storeowner. Defendant was convicted of two felony murders. The sole question on appeal was whether defendant could be liable for felony murder of the accomplice. Holding: The court concluded that extension of the felony murder rule beyond its classic common-law limitation of acts by the felon and his accomplices, to lethal acts of third persons not in furtherance of the felonious scheme was regressive. Reasoning: Foreseeability and proximate cause do not establish moral culpability, and “gradations of criminal liability should accord with [the] degree of moral culpability for the actor‟s conduct.” The doctrine of felony murder does not extend to a killing, although growing out of the commission of the felony, if directly attributable to the act of one other than the defendant or those associated with him in the unlawful enterprise.  No person can be held guilty of homicide unless the act is either actually or constructively his, and it cannot be his act in either sense unless committed by his own hand or by some one acting in concert with him or in furtherance of a common object or purpose.  The court identified three approaches to accomplice liability in felony murder cases [and ultimately chose the agency approach]:  Agency Approach: Felons are liable for homicides that they or their co-felons accomplish by their own hands, in the furtherance of the felony.  Proximate Cause: If you undertake a felony and it‟s foreseeable that a homicide will occur as a result, you should be held liable for that homicide.  New York Penal Law § 125.25 provides that a person is guilty of murder if, “in the course of and in furtherance of [designated felonies,] he, or another participant…causes the death of a person other than one of the participants.”  New York and New Jersey permit an affirmative defense for felons who can show that they had no reason to anticipate the use of deadly force.  Death of Co-Felons: A felon is not liable if the person who dies is a co-felon, because that‟s justifiable killing [could be used in conjunction with either of the first two, or by itself].

 Justifiable Homicide  Suppose a felon is justifiably killed by a police officer.  The court in Commonwealth v. Redline, argued that in such a situation, “the victim of the homicide was one of the [felons] who was shot and killed by a police officer in the performance of his duty. Thus, the homicide was justifiable and, obviously, could not be availed of, on any rational legal theory, to support a charge of murder. How can anyone, no matter how much of an outlaw he may be, have a criminal charge lodged against him for he consequences of the lawful conduct of another person?”  N.B. Ignores the possibility that one felon might persuade a cohort that the “coast is clear,” directing him to confront the police with firearms drawn, while he or she makes a getaway out the back. CAUSATION A. Causation Under the Common Law  The Basic Causation Doctrine  To be held criminally responsible for causing a proscribed harm under the common law, the defendant‟s conduct must have been both the “cause in fact” [the “but for” cause] and the “proximate cause” [the “legal” cause] of the harm.  The actus reus of a crime is composed of: (i) a voluntary act (ii) that causes (iii) social harm. As all offenses contain an actus reus, causation is an implicit element of all crimes  Actual Causation and Mens Rea  Independent concepts, both of which need to be proven by the prosecution.  Causation without mens rea → no conviction.

31

32
 “But for” cause without culpable mental state → no conviction.  Mens rea without causation → no conviction if defendant had the culpable mental state but the defendant‟s actions are not the but-for cause of the harm.  Multiple Actual Causes  Accelerating a result – there can be two but-for causes of the harm.  If ∆1 inflicting underlying injury and ∆ 2 accelerates the death by inflicting a second injury – both are considered actual causes of the victim‟s harm.  Most courts do not an individual who inflicted an initial mortal wound to avoid responsibility by claiming that a subsequent voluntary act of another human being was an intervening cause.  Obstructed Cause  For example, ∆1 shoots victim in the stomach, while simultaneously and independently, ∆2 shoots victim three times in the head.  Under this analysis, though ∆1 attempted to take the victim‟s life, he was thwarted in this goal because ∆2 was a more effective killer. Thus, ∆1 might only be convicted of attempted murder since ∆2 obstructed his goal of killing the victim.  Dependent Intervening Cause  A dependent intervening cause is one that was intended or reasonably foreseeable by the defendant, or sufficiently related to his conduct, to impose criminal responsibility for causing the harm. Characterizing the intervening cause as dependent results in a finding that the defendant proximately caused the harm.  In other words, the fact that another causal agent contributed to the result will not relieve the defendant of responsibility.
People v. Stewart Facts: The victim had been operated on for a stab wound in the stomach inflicted by the defendant. Soon afterwards, the surgeon performed an entirely unrelated hernia operation on the victim and he died. Holding: The court stated that the “prosecutor must, at least, prove that the defendant‟s conduct was an actual cause of death, in the sense that it forged a link in the chain of causes which actually brought about the death.” In this instance, the possibility that death resulted from a factor not attributable to the defendant could not be ruled out beyond a reasonable doubt, since the patient would, in all likelihood, have survived but for the hernia operation.

 Independent Intervening Cause  To find that the intervening cause is independent, the fact finder must conclude that (i) the harm was not intended by the defendant or was not reasonably foreseeable, or (ii) that it is simply unfair or unjust to hold him responsible for the harm that has occurred.  Concurrent Causation  Concurrent causation is the one situation when the cause in fact requirement does not have to be met. It occurs when two independent causes in fact occur at the same time, and either of them would have caused the result by itself.
People v. Arzon Facts: Defendant started a fire on the fifth floor of an abandoned building to keep warm. Firefighters arrived to fight the fire. Meanwhile, another fire started independently by somebody else on the second floor and trapped the firefighters. Overcome by smoke from the first and second fires, one firefighter died. The defendant was charged with two counts of second-degree murder and one count of third-degree arson. The defendant argued that a murder charge requires a causal link between the underlying crime and the death, a connection that in the defendant‟s view was lacking. Holding: The court rejected the defendant‟s argument and his motion to dismiss. The court held that an individual is criminally liable if his conduct was a sufficiently direct cause of the death, and the ultimate harm is something, which should have been foreseen as being reasonably related to his acts. Reasoning: The court explained that the defendant‟s conduct need not be the sole and exclusive factor in the victim‟s death. It was irrelevant that the second fire intervened and contributed to the conditions that culminated

32

33
in the fireman‟s death. The defendant‟s conduct was an indispensible link in the chain of events that result in the death – at the very least by placing the victim in a vulnerable position, susceptible to independent forces [fire].

 Foreseeable Human Action  Action taken in response to the danger created by the defendant is considered foreseeable.  An actor generally will be held responsible even if another person, including the victim, a would-be rescuer, or a police officer, actually brings about the harm.
People v. Acosta Facts: Acosta stole a car and led police on a 40-mile chase. Two police helicopters that were assisting to track Acosta during a police chase collided in midair, killing three people. Acosta appealed his conviction of three counts of second-degree murder on the grounds that there was insufficient evidence of proximate causation and of malice, and that the jury should not have been given an implied malice instruction. Holding: The court agreed and reversed the murder convictions. The court found that although defendant's attempted flight from the police was the proximate cause of the helicopter crash, insufficient evidence existed to show that he acted with malice. Reasoning: The court held that although persons on the ground during the pursuit faced a high probability of death, there was no evidence that defendant's driving affected the helicopters that gave chase. The court ruled that evidence that defendant knew that the helicopters were in pursuit was not sufficient to establish that he knew his conduct was a risk to the pilots and that he acted with a conscious disregard for that risk [no malice]. Dissent: The dissenting judge argued that the majority had failed to even demonstrate proximate cause. Quoting Justice Cardozo, the judge says “risk imports relation; it is risk to another or to others within the range of apprehension.” To suggest that the defendant‟s speeding on the roads created risk for helicopters in the sky defies common sense – they were simply not in the zone of danger.

 Harm Intended or Risked v. the Manner in Which It Occurs  If a defendant intended a particular harm or created a risk that a particular harm would occur but it occurs in a manner different than intended or expected, courts generally will find the intervening cause to be dependent, provided the specific causal mechanism was not entirely unexpected or coincidental.
People v. Kibbe Facts: Two defendants robbed a near-sighted and very intoxicated victim on a cold winter night in upstate New York where a heavy snow had just fallen. They left him on the side of a road surrounded by steep snow banks. The victim, unable to see the road clearly and still intoxicated, sat down in the middle of the road. Soon a truck driver, who was speeding, struck and killed the victim. The defendants claimed that they did not cause the victim‟s death and that either the victim – by putting himself in such obvious peril by sitting in the road – or the truck driver – who was speeding – was an independent and supervening cause. Holding: The New York Court of Appeals disagreed and affirmed the convictions. The court concluded that the defendants, in committing armed robbery and leaving their intoxicated victim in the harsh and perilous cold, could have or should have anticipated that he would seek help by moving onto the road. Nor was it unusual for drivers to be speeding at that hour of night. Reasoning: The court reasoned that the defendants knew that they created a strong possibility that the victim would be harmed, either from the cold or struck by a vehicle. Though the conceding that it was somewhat unusual for the victim to sit down in the middle of the road, the court concluded that the victim‟s death was foreseeable, even though the particular manner in which it occurred may not have been. As long as the ultimate harm is something that should have been foreseen as being reasonably related to the defendant‟s acts, the defendants are criminally responsible (i.e., hit by a meteor insufficient).

 Identifying the Specific Causal Mechanism  Some cases hold that the defendant cannot be held criminally responsible for causing a harm if the specific causal mechanism cannot be identified.
People v. Warner-Lambert Facts: Defendant corporation and its officers were charged with manslaughter and negligent homicide arising out of an explosion and fire at one of their facilities in which six employees died. Although there was evidence of a highly flammable chemical in the air and on the equipment, there was no proof of what triggered the explosion. Holding: On appeal, the court found no proof sufficient to support a finding that defendants foresaw or should have foreseen the physical cause of the explosion. Since the standard in a criminal case was higher than that in a tort claim, there was no legally sufficient evidence to establish the offenses charged or any lesser-included offense.

33

34
Reasoning: Recognizing that a distance separates the negligence which renders one criminally liable from that which establishes civil liability, both as to quantum and content of proof, the court holds that defendants should not be found guilty unless their conduct is a cause of death sufficiently direct as to meet the requirements of the criminal, and not the tort, law.  Key concept in proximate cause analysis is probability – probability as it would be understood by ordinary persons antecedent to the event, with no special access to information about the facts of the event.

B. Causation Under the Model Penal Code  Model Penal Code § 2.03 - Causal Relationship Between Conduct and Result  (1) Conduct is the cause of a result when:  (a) It is an antecedent but for which the result in question would not have occurred; and  (b) The relationship between the conduct and result satisfies any [if any] additional causal requirements imposed by the Code or by the law defining the offense [for example requiring “proximate causation” as well].  (2) When purposely or knowingly causing a particular result is an element of an offense, the element is not established if the actual result is not within the purpose or the contemplation of the actor unless:  (a) The actual result differs from that designed or contemplated, as the case may be, only in the respect that a different person or different property is injured or affected or that the injury or harm designed or contemplated would have been more serious or more extensive than that caused [responsible for lesser harms but not greater harms than what was intended or contemplated]; or  (b) The actual result involves the same kind of injury or harm as that designed or contemplated and is not too remote or accidental in its occurrence to have a [just] bearing on the actor's liability or on the gravity of his offense.  (3) When recklessly or negligently causing a particular result is an element of an offense, the element is not established if the actual result is not within the risk of which the actor is aware or, in the case of negligence, of which he should be aware unless:  (a) The actual result differs from the probable result only in the respect that a different person or different property is injured or affected or that the probable injury or harm would have been more serious or more extensive than that caused; or  (b) The actual result involves the same kind of injury or harm as the probable result and is not too remote or accidental in its occurrence to have a [just] bearing on the actor's liability or on the gravity of his offense.  (4) When causing a particular result is a material element of an offense for which absolute liability is imposed by law, the element is not established unless the actual result is a probable consequence of the actor's conduct.
 N.B.

Traditional language of proximate causation is replaced by language that focuses on the relationship between the purpose or contemplation of the actor and the actual result of his conduct.

 Other Causation, Concurrent Causation and Transferred Intent  The MPC allows legislatures to impose traditional causal elements in a statute if they wish, but it does not directly address “concurrent” causation. Common law cases of “transferred” intent are treated by the MPC as causes of causation, requiring causation analysis; that is, did the defendant cause the result?  This question arises only if the result that occurs is not within the purpose or contemplation of the actor. C. Subsequent Human Actions  The Law of Causation  The law of causation treats physical events that follow from a person‟s actions as caused by him or her (subject to the requirements of proximity, foreseeability, and so forth), but it ordinarily does not treat human action that follows from an initial actor‟s conduct as caused by that actor, even when the subsequent human action is entirely foreseeable.

34

35
 A defendant is far more apt to be relieved of criminal responsibility in the case of a “free, deliberate and informed” (i.e., voluntary) intervention of a human agent.
People v. Kern Facts: Defendants participated in an attack upon three black men, which resulted in the death of one of the victims when he was struck by an automobile while crossing a six-lane highway in an effort to evade the defendants. Holding: The court affirmed and held that the evidence was legally sufficient to support defendants' convictions of second-degree manslaughter. Reasoning: The evidence supported the jury's finding that defendants recklessly caused the victim's death because they were aware of the risk of death to the victim as they continued to chase him down a street and onto the highway, they consciously disregarded that risk, and, in so doing, grossly deviated from the standard of care which reasonable persons would have observed under the circumstances. The evidence was also sufficient to support findings that defendants' actions were a "sufficiently direct cause" of the victim's death and that although it was possible for the victim to escape his attackers by turning on to a service road rather than attempting to cross the highway, it was foreseeable and indeed probable that the victim would choose the escape route most likely to dissuade his attackers from pursuit. Stephenson v. State Facts: Defendant, with the aid of several associates, abducted the victim and sexually assaulted her over the course of several days. The victim seized an opportunity to secretly buy and take some poison in an effort to commit suicide. The victim became violently ill and the defendant drove her home. Soon thereafter she was taken to her parents house and they summoned a doctor to treat her for the poisoning. In the next few days all of her wounds healed except for one, which became infected resulting in her death. The coroner stated that the cause of her death was apparently a combination of shock, loss of food and rest, action of the poison and the infection, and lack of early treatment, probably none of which, taken singly, would have been sufficient to result in death. The defendant was charged and convicted of second-degree murder. Holding: The Indiana Supreme Court affirmed the conviction. Reasoning: Whenever a blow is inflicted under circumstances to render the party inflicting it criminally responsible, if death follows, he will be holden for murder or manslaughter, though the person beaten would have died from other causes, or would not have died from this one, had not others operated with it; provided, that the blow really contributed to the death as it actually took place in a degree sufficient for the law's notice.  The court quoted Bishop and stated, “when suicide follows a wound inflicted by the defendant, his act is homicidal, if the deceased was rendered irresponsible by the wound and as a natural result of it.” People v. Campbell Facts: Defendant discovered the decedent in bed with his wife. The defendant was later out heavily drinking with the decedent and was also aware that the decedent was severely depressed. He then provided the decedent a loaded gun and suggested that he “go kill yourself.” Decedent then shot himself in the head. Holding: The court held that the defendant had no intention to kill. “While it may be morally reprehensible, there must be more than the mere hope that such an event would occur.” Reasoning: The court noted that incitement to suicide had not been held to be a crime in two-thirds of the states of the United States, and no legislature classified such conduct as murder. The court also noted that it was not clear that incitement to suicide was ever considered murder at the common law. People v. Kevorkian Facts: Defendant devised a suicide machine by which terminally ill patients could take their own lives. However, he did not actually cause anyone‟s death – he just helped provide the materials allowing him/her to commit suicide. Defendant was charged with murder. The trial court dismissed the charges finding that assisted suicide did not fall within the language of the murder statute. The appellate court reversed. Holding: The Michigan Supreme Court remanded the case back to the appellate court to determine the degree of participation by the defendant in the events leading to the deaths of the terminally ill patients. The Court held that “only where there is a probably cause to believe that death was the direct and natural result of a defendant‟s act can the defendant be properly bound over on a charge of murder. Notes: The court also noted that persons who opt to discontinue life-sustaining medical treatment are not, in effect, committing suicide. There is a difference between choosing a natural death summoned by an uninvited illness or calamity, and deliberately seeking to terminate one's life by resorting to death-inducing measures unrelated to the natural process of dying.  Note that the court also points out, “there may be circumstances where one who recklessly or negligently provides the means by which another commits suicide could be found guilty of a lesser offense, such as involuntary manslaughter. There are a number of cases in which providing a gun to a person known to the defendant to be intoxicated and despondent or agitated has constituted sufficient recklessness to support such a conviction…”

35

36
 But doesn‟t that defy the logic of a not charging a defendant if a suicide victim was fully rational?  The Current Law on Assisted Suicide  The generally prevailing law in American jurisdictions is that one who successfully urges or assists another to commit suicide is not guilty of murder, at least as long as the deceased was mentally responsible and was not forced, deceived, or otherwise subject to pressures that rendered his action partly involuntary.  Most states also reject the possibility of a manslaughter or negligent homicide conviction, provided again that the deceased‟s actions were fully voluntary.  New York Penal Law § 125.15  New York departs from the restrictive approach by making it manslaughter when a person “intentionally causes or aids another person to commit suicide.”  The statute apparently applies regardless of whether the suicide victim was acting under deception or duress.  Model Penal Code § 210.5 – Causing or Aiding Suicide  (1) Causing Suicide as Criminal Homicide. A person may be convicted of criminal homicide for causing another to commit suicide only if he purposely causes such suicide by force, duress or deception.  (2) Aiding or Soliciting Suicide as an Independent Offense. A person who purposely aids or solicits another to commit suicide is guilty of a felony of the second degree if his conduct causes such suicide or an attempted suicide, and otherwise of a misdemeanor.
 Subsection

(1) does not state an independent offense but instead limits the applicability of the other homicide offenses to conduct that causes another to commit suicide. Specifically, this provision confines criminal sanctions to the case where the actor "purposely causes such suicide by force, duress, or deception."

D. Potential Problems with Foreseeability  Exceptional Victims  The common law rule is that you take the victim as you find them. Thus, if there is but-for causation, even when the victim is extraordinarily fragile, refuses medical attention, etc., there is criminal responsibility.  The MPC looks at intention and results that are “not too remote or accidental” to have an impact on justice. The MPC asks whether the harm that occurred was the same kind of harm that you intended, foresaw, or should have foreseen.  Unexpected Consequences  The common law considers foreseeability using varies tests including the “highly extraordinary result” standard, the year-and-a-day rule, and the sole cause rule among others.  The MPC looks at intention and foreseeability as it relates to an impact on justice. If the only unexpected consequence is that the actual victim is different from the intended victim, the actor is criminally responsible.  External Events  The common law recognizes the possibility of intervening actions by third-parties.  The MPC does not make an exception. If an individual intends to cause another person to take an action that causes harm, the first person is liable. ATTEMPT A. Expanding Liability  The Traditional Notion of Attempt  At common law, attempts were misdemeanors.

36

37
 Today, the usual punishment for attempt is a reduced factor of the punishment for the completed crime.  Justification for the Traditional Approach  J.F. Stephen argues that if two persons are guilty of the very same act of negligence, and if one of them causes a horrific railway accident, whereas the other does no injury to anyone, it would seem rather pedantic rather than rational to say that each had committed the same offense and both should be subject to the same punishment.  In one sense each has committed an offense, but the one has had the bad luck to cause a horrible misfortune while the other has had the good luck to cause no harm.  Both certainly deserve punishment, but it gratifies a natural public feeling to choose out for punishment the one who actually has caused a great harm, and the effect in the way of preventing a repetition of the offense is much the same as if both were punished.  H.L.A. Hart argues in response that there is no doubt that there is often an inclination to treat punishment like compensation and measure it by the outcome. But there seems no good reason for adopting this misassimilation as a principle or to stigmatize as pedantic the refusal to recognize that the difference made by “bad fortune” and “good luck” to the outcome of the very same act justifies punishing one and not the other. B. Attempt Under the Common Law  Mens Rea of Attempt  The defendant must have the same state of mind required for conviction of the target offense.  Because attempt is a specific intent crime at common law, the defendant must also intend: (i) To do the act; (ii) to accomplish the result; (iii) under the same circumstances that would be required for conviction of the target offense.  Intend the Act. The specific intent requirement means that a person cannot commit an attempt recklessly or negligently. He must, at the very least, intend the act (i.e., a person who knows that his car brakes do not work might commit attempted reckless driving if he gets into his parked car and starts it, intending to drive on the streets. However, because he does not actually drive the car, he cannot be convicted of reckless driving).  Intend the Result. To be convicted of attempting a crime that has a result element [murder → death of the victim], the defendant must intend the result (i.e., a defendant who drives his car so dangerously that he kills someone may be convicted of murder or vehicular homicide because his risk-creating behavior has resulted in death. If, however, the same defendant struck the victim while driving in the same reckless way but did not kill him, he cannot be convicted of attempted murder or attempted vehicular homicide because he did not intend death).  Intend the Circumstances. A defendant must know the circumstances of the target offense – even if strict liability applies (i.e., an adult who had sex with a juvenile under the age of 16 erroneously believe that she was 18, could be convicted of statutory rape. If, however, the same adult were arrested moments before having sex with the juvenile, he could not be convicted of attempted statutory rape because he did not intend the juvenile to be under 16).  Why Specific Intent?  One explanation is linguistic: to attempt something is to try to accomplish it, and one cannot be said to try if one does not intend to succeed.  One explanation is moral: one who intends to commit a criminal harm does a greater moral wrong that one who does so recklessly or negligently.  One explanation is utilitarian: “the importance of the intent is not to show that the act was wicked but that it was likely to be followed by hurtful consequences” – Justice Holmes
Smallwood v. State Facts: Smallwood was convicted of three counts of assault with intent to murder his three rape victims, because he knew was HIV positive and did not use a condom. Holding: The court reversed, holding that the trial court should not have inferred an intent to kill solely because Smallwood exposed his victims to a risk that they might contract HIV.

37

38
Reasoning: A conviction for “attempt” requires specific intent/purposefulness even though murder requires only depraved heart recklessness. Sometimes you can infer intent from the “natural and probable consequences” of the act, but the court said it couldn‟t make that inference in this case. While death was possible, it was not a probable result [magnitude of the risk] of being exposed to HIV, so there was not the same level of intent necessary for an attempt.  In HIV cases that have led to convictions, the defendant made some of kind of statement or otherwise demonstrated an intent to transmit the virus. Regina v. Kahn Facts: Defendant was charged with attempted rape. Holding: On appeal, the court affirmed, stating, “the only difference between [rape and attempted rape] is that in rape sexual intercourse takes place whereas in attempted rape it does not, although there has to be some act which is more than preparatory to sexual intercourse. Considered in that way, the intent of the defendant is precisely the same in rape and in attempted rape and the mens rea is identical, namely, an intention to have intercourse plus a knowledge of or recklessness as to the woman‟s absence of consent…” Commonwealth v. Dunne Facts: Defendant was convicted of assault with intent to commit statutory rape, an offense that the court referred to as attempted statutory rape. The statutory age of consent was 16, and the victim was 15 years and 4 months old. There was no allegation that the defendant knew, or should have known, that the victim was underage. Holding: The court affirmed the conviction, stating, “we held that in a prosecution for statutory rape it is immaterial that the defendant reasonably believe that the victim was 16 years of age or older. This is the rule in most jurisdictions. Similarly, in a prosecution for an assault with intent to commit statutory rape, this court has held that whether or not the defendant is aware of the victim‟s age is irrelevant…Indeed, it would be incongruous for us to posit one rule for the completed act and another for the attempt.

 Actus Reus of Attempt: The “Eagleton” Test  As formulated in R. v. Eagleton, the rule suggests that in “order to constitute a criminal attempt, as opposed to mere preparation, the accused must have taken the last step which was able to take along the road of his criminal intent…He must have done all that he intended to do and was able to do for the purpose of effectuating his criminal purpose…When he has stopped short of this, whether because he has repented, or because he has been prevented, or because the time or occasion for going further has not arrived, or for any other reason, he still has [an opportunity to repent or change his mind].”  Note that the “Eagleton” test is very favorable to defendants. Only after he has taken the very last step within his power and then events were out of his control could the law punish him for attempt.  “But the prior and preliminary acts of procuring and loading a pistol, and of going with it to look for his enemy, and of lying in wait for him, and even of presenting the pistol at him, would not constitute criminal attempts, none of these being the proximate and final steps towards the fulfillment of his criminal purpose…”  Actus Reus of Attempt: The Equivocality Test  Some have argued that the actus reus of attempt should by itself unquestionably show that the actor is truing to commit a crime. Otherwise, the defendant‟s behavior is merely “equivocal” – that is, it is consistent with either innocent or criminal purpose.  In R. v. White, the court held that the first administration of poison in a case of intended slow poisoning by repeated doses amounted in itself to attempted murder. The court stated, “the completion [or attempted completion] of one of a series of acts intended by a man to result in killing is an attempt to murder, even though the completed act would not, unless followed by other acts, result in killing.”  It may be the beginning of an attempt but would nonetheless be an attempt.  The court looks not to how far the defendant has gone but to how clearly his acts bespeak his intent to commit the target offense.  Note that this test is also favorable to defendants because virtually no preparatory act will be unequivocal – the prosecution cannot use evidence of the defendant‟s admissions or confessions as the “law does not punish men for their guilty intentions.”

38

39
McQuirter v. State Facts: A black man in 1950‟s Alabama was convicted of attempt to commit an assault with intent to rape after a white woman accused him of following her and the Chief of Police testified that he had stated while in jail that he was going to rape her and kill her if she screamed. Holding: The court affirmed the conviction, holding that the evidence (including the statements of the woman and the Chief of Police, as well as the races of the accused and the accuser) was sufficient for a reasonable jury to convict him.

 Actus Reus of Attempt: The Proximity Tests  Other courts have used a more flexible definition of sufficient actus reus of attempt.  The test allows the jury to weigh several factors, including the seriousness of the offense, community resentment, and closeness in space and time to completing the crime.  Physical Proximity Test: Actor‟s conduct must approach sufficiently near to it to stand either as the first or some subsequent stop in a direct movement toward the commission of the offense after the preparations are made.  Dangerous Proximity Test: When an act is so near to the result that the danger of success is very great.  Indispensable Element Test: No attempt if the actor has not yet obtained control of an indispensable feature of criminal plan (e.g., an instrumentality of the crime – gun, etc…).
People v. Miller Facts: Defendant went armed with a rifle into a field where the local constable and the victim were standing. Defendant walked in the direction of the constable and victim, stopped, loaded his rifle, but did not aim it, and resumed his approach. The victim fled, and ultimately the constable took away the defendant‟s rifle. Holding: The court held that the defendant was not guilty of attempted murder because “up to the moment the gun was taken from defendant, no one could say with certainty whether he had come into the field to carry out his threat to kill the victim or merely to demand his arrest by the constable.” People v. Rizzo Facts: Rizzo and three other defendants planned to rob a pay roll man of money they expected him to carry from the bank to a building owned by the United Lathing Company. They drove around looking for the man, but before they found him, the police arrested the defendants. Rizzo appealed from his conviction for attempt to commit robbery. Holding: The court reversed the convictions, stating, the “defendants were not guilty of attempt to commit robbery…when they had not found or reached the presence of the person they intended to rob.” Reasoning: The law has recognized that many acts in the way of preparation are too remote to constitute the crime of attempt. The line has been drawn between those acts which are remote and those which are proximate and near to the consummation. The law must be practical, and therefore considers those acts only as tending to the commission of the crime, which are so near to its accomplishment that in all reasonable probability the crime itself would have been committed, but for timely interference. As Justice Holmes said, “there must be dangerous proximity to success.” State v. Duke Facts: A detective in the county sex unit was surfing the internet chat rooms looking for persons attempting to solicit children for sexual acts. He found the defendant, and posing as a 12-year old girl named “Nikki,” had several conversations about engaging in sex. They arranged to meet at a certain night at a parking lot where the defendant would signal by flashing his lights and then take “Nikki” to his home to engage in various sex acts. As soon as the defendant flashed his lights, he was immediately arrested. Defendant was convicted of attempted sexual battery on these facts. Holding: The appellate court reversed on the ground that the defendant‟s overt acts did not go far enough to constitute an attempt at sexual battery. Notes: The court noted the difficulty in policing the internet to prevent criminal acts against children but suggest that this was an area that the legislature should address specifically.

C. Attempt Under the Model Penal Code  Model Penal Code § 5.01 – Criminal Attempt  (1) Definition of Attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:  (a) Purposely engages in conduct that would constitute the crime if the attendant circumstances were as he believes them to be; or

39

40
 (b) When causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or with the belief that it will cause such result without further conduct on his part; or  (c) Purposely does or omits to do anything that, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.  (2) Conduct That May Be Held Substantial Step Under Subsection (1)(c). Conduct shall not be held to constitute a substantial step under Subsection (1)(c) of this Section unless it is strongly corroborative of the actor's criminal purpose.  Without negativing the sufficiency of other conduct, the following, if strongly corroborative of the actor's criminal purpose, shall be [legally sufficient] as a matter of law:  (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, that are specially designed for such unlawful use or that 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, if 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. the common law, which required that the defendant know all circumstance elements, the MPC provides that, for these elements, the mens rea of the target offense controls. Thus, whatever mens rea toward circumstances is required by the target crime will also be required for an attempt under the MPC.  Unlike the statutory rape example under the common law, under the MPC, an adult who intended to have sex with a 16 year old female, erroneously believing she was 18, could be prosecuted for committing attempted statutory rape if arrested just before the act because age is a strict liability circumstance element of the target offense.  In contrast to the common law, the MPC does not require much of an actus reus before a defendant can be convicted of an attempt.
United States v. Jackson Facts: Defendants planned to rob a bank. They scheduled it for two different days and had to cancel. The third time they went back, the FBI was waiting and arrested them before they did anything. Defendants were convicted of attempted robbery but appealed, arguing that as a matter of law, their conduct never crossed the elusive line which separates “mere preparation” from “attempt.” Holding: On appeal, the Second Circuit affirmed the convictions and stated that the two-tiered test which mirrored the MPC‟s approach for distinguishing acts of preparation from acts constituting attempt was appropriate. The trial court formulated the approach as: (i) the defendant must have been acting with the kind of culpability otherwise required for the commission of the crime which he is charged with attempting…and (ii) the defendant must have engaged in conduct which constitutes a substantial step toward commission of the crime. A substantial step must be strongly corroborative of the firmness of the defendant‟s criminal intent.” Reasoning: The court reasoned first, that this formulation, mirroring the MPC, shifts the emphasis from what remains to be done – the chief concern of proximity tests – to what the actor has already done. The fact that further major steps must be taken before the crime can be completed does not preclude a finding that the steps already undertaken are substantial. This approach will broaden the scope of attempt liability. Second, although it is intended that the requirement of a substantial step will result in the imposition of attempt liability only in those instances in which some firmness of criminal purpose is shown, no finding is required as to whether the actor would have probably desisted prior to completing the crime. Third, the requirement of proving a substantial step generally will prove less of a hurdle for the prosecution than the res ipsa loquitur approach, which requires that the actor‟s conduct must manifest the criminal purpose. United States v. Joyce Facts: An undercover officer tried to sell cocaine to defendant. Defendant would not open the package, would not give undercover officer the money and eventually left the hotel room with no apparent intention of returning.
 Unlike

40

41
As he left, he was arrested and convicted of attempting to purchase cocaine with intent to distribute. Defendant appealed his conviction. Holding: The court reversed the conviction and found that although defendant had the intent to purchase cocaine with the intent to distribute, he had not taken a substantial step by merely meeting with undercover agents and had abandoned his activity before actually taking a substantial step in the commission of an offense. The court noted that mere intention did not amount to an attempt. The court also did not agree that an increased awareness of the risk of apprehension converts what would otherwise be “mere preparation” into attempt. Reasoning: Mere intention to commit a specified crime does not amount to an attempt. It is essential that the defendant, with the intent of committing the particular crime, do some overt act adapted to, approximating, and which in the ordinary and likely course of things will result in the commission of the particular crime. United States v. Harper Facts: Defendants were convicted of conspiracy, attempted bank robbery, and carrying a firearm during and in relation to a crime of violence after being discovered near a bank with guns. The defendants had set a “bill trap,” causing the ATM to shutdown and summon technicians to repair it. Holding: The court reversed the attempt conviction, stating, “while the bill trap would eventually bring service personal to the ATM, the robbery was in the future…and the defendants never made a move toward the victims or the bank to accomplish the criminal portion of their intended mission. They had not taken a step of „such substantiality that, unless frustrated, the crime would have occurred.” Reasoning: The court reasoned that when criminal intent is clear, identifying the point at which the defendants‟ activities ripen into an attempt is not an analytically satisfying enterprise. Making an appointment with a potential victim is not of itself such a commitment to an intended crime as to constitute an attempt, even though it may make a later attempt possible.

D. Abandonment and Renunciation  Abandonment Under the Common Law  The common law did not allow for the defense of abandonment. Once a defendant had crossed the line dividing preparation from implementation and had committed an attempt, he could not go back.  Remorse and restitution may affect the sentence, but they cannot erase liability once the elements necessary for conviction are complete.  Many courts continue to apply this view.  Some states, however, allow a defendant to prove that, though he committed an attempt, he subsequently abandoned his criminal purpose.  Generally abandonment is an affirmative defense, which must be proved by a preponderance of the evidence and is usually only available if the defendant changed his mind through genuine remorse and not because the risk of arrest or difficulty of committing the crime was greater than expected.  Allowing abandonment explains why the common law focused on the last few moments or actions before the attempt was committed so that the actor could have a chance to repent and abandon his effort.  Proponents argued that though allow such an affirmative defense permits the acquittal of someone who has demonstrated a willingness to engage in criminal conduct, the defense may encourage criminals to change their minds and not complete the crime, saving both the victim and society from more serious harm.
People v. Johnston Facts: Defendant entered a gas station, pulled a gun, and demanded money. When the attendant produced only $50 and said that it was all the cash available, the defendant left, stating, “I was just kidding, forget it ever happened.” The court denied a renunciation defense. People v. McNeal Facts: Defendant accosted a girl who had been waiting at a bus stop and forced her at knifepoint to accompany him to a house, with the intent to rape her. After an extended conversation in which the girl pleaded with the defendant to let her go, the defendant released the girl, saying he was sorry and would never engage in such behavior again. Holding: The court affirmed his conviction for attempted sexual assault, upholding a finding that because of the victim‟s “unexpected resistance,” the defendant‟s renunciation was not voluntary.

41

42
Ross v. State Facts: On similar grounds to People v. McNeal, the court found abandonment as a matter of law and reversed a conviction for attempted rape, stating, “[the] defendant did not fail in his attack. No one prevented him from completing it. The victim did not sound an alarm. She successfully persuaded [the defendant], of his own free will, to abandon his attempt.”

 Model Penal Code § 5.01 – Renunciation of Criminal Purpose  (4) When the actor's conduct would otherwise constitute an attempt under Subsection (1)(b) or (1)(c) of this Section, it is an affirmative defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose. The establishment of such defense does not, however, affect the liability of an accomplice who did not join in such abandonment or prevention. only when the target offense has a result or circumstance as a material element. It is not available when conduct is the only material element of the target offense because, once the defendant has completed the criminal conduct, the harm has been done and there is nothing for him to abandon.  It must be voluntary. The defendant must not have changed his mind because it was more difficult to commit the crime than originally anticipated.  It must be complete. The defendant must not have merely decided to wait for a better time or opportunity to make another attempt. E. Impossibility Under the Common Law  Legal Impossibility  The common law allowed for the defense of legal impossibility.  It exists when the intended acts, even if completed, would not amount to a crime.  It is irrelevant whether the act believes he is breaking the law – since the actor has not broken any particular law, he could not have the mens rea required to attempt an offense.  Most cases involve a hybrid of legal/factual impossibility but are generally treated as factual.
People v. Jaffe Facts: Defendant was charged with attempted possession of stolen property. The police running a “sting” operation had sold the defendant 20 yards of cloth, that had one time been stolen but had since been recovered by the original owner. The defendant believed that he was purchasing stolen property. An essential element of the crime was that the accused had known the property was stolen or wrongfully appropriated. Holding: The New York Court of Appeals held that if the immediate act, which the defendant had in contemplation, could not have been criminal under the statute even if the purchase had been completed, the defendant cannot be charged with attempt. Reasoning: No matter what was the motive of the defendant, and no matter what he supposed, he could do no act which was intrinsically adapted to the then present successful perpetration of the crime denounced by N.Y. Penal Law § 550, because neither he nor any one in the world could know that the property was stolen property inasmuch as it was not in fact stolen property.  “If what a man contemplates doing would not be in law a crime, he could not be said in point of law to intend to commit the crime. If he thinks his act will be a crime this is a mere mistake of his understanding where the law holds it not to be such, his real intent being to do a particular thing. If the thing is not a crime, he does not intend to commit one whatever he may erroneously suppose.”
 Available

 Factual Impossibility  Exists when a person‟s intended end constitutes a crime, but he fails to consummate the offense because of an attendant circumstance unknown to him or beyond her control.  The target offense is not committed because the actor chose the wrong victim, the victim was not present, the actor was not physically capable of committing the offense, or inappropriate means were used to commit the crime.  Had the circumstances been as the actor believed them to be, or hoped that they were, the crimes would have been consummated.

42

43

People v. Dlugash Facts: Defendant was convicted of murder for shooting victim. It turns out, the defendant shot the victim after a third party had already shot the victim three times. It was unclear whether the victim was alive at the time the defendant shot him. After his conviction, defendant moved to set the verdict aside. The basis of defendant's contention was that he was absolutely certain the victim was dead before he shot him. Holding: The New York Court of Appeals, agreed with the appellate court that the evidence did not prove that the victim was alive at the time the defendant shot him, and thus the murder conviction was reversed. However, the court found that if defendant believed the victim was alive at the time of the shooting [more importantly, since the jury in the original jury must have found that the defendant believe the victim was alive to convict him of murder], it was no defense to the charge of attempted murder that the victim may have been dead. The court held that, under N.Y. Penal Law §110.10, there was no defense to attempted murder since the murder would have been committed had the attendant circumstances been as defendant believed them to be. Reasoning: N.Y. Penal Law §110.10 provides that, if a person engages in conduct which would otherwise constitute an attempt to commit a crime, it is no defense to a prosecution for such attempt that the crime charged to have been attempted was, under the attendant circumstances, factually or legally impossible of commission, if such crime could have been committed had the attendant circumstances been as such person believed them to be.

 The Pickpocket Picks an Empty Pocket  Under the common law, a pickpocket could be convicted for attempted larceny when he picked an empty pocket – makes sense since the criminal should not receive a windfall because of the sheer luck that he picked the wrong pocket.  Inherent Impossibility  What if an actor wants to kill a former love but uses means that are inherently unlikely to accomplish the intended result – for example, using a voodoo doll. The actor clearly has a criminal attitude and has acted to implement her criminal intent.  Inherent impossibility was not a defense at common law, yet the demanding actus reus definitions likely provided means for avoiding confronting such situations. F. Impossibility Under the Model Penal Code  Legal Impossibility  The MPC does not explicitly provide a defense of legal impossibility. Instead § 5.01 requires the prosecutor to prove that there is a criminal statute punishing what the defendant intended to accomplish. Thus, a person who engages in behavior that he thinks is a crime, but is not, cannot be convicted on an attempt [effectively the same as if the MPC did provide a defense].  Factual Impossibility  Under the MPC, factual impossibility is not a defense to attempt pursuant to § 5.01. A defendant is guilty of an attempt if he would have committed the target offense had the facts or conditions been, as he believed them to be. Thus, if the MPC had been applied in Jaffe, the defendant could have been convicted of an attempt to purchase or receive stolen property because he believed the property to be stolen, and he would have committed the target offense if his belief were true.  Inherent Impossibility  The MPC does not allow a defense of inherent impossibility. However, it does permit the court to dismiss a prosecution in such a case if the defendant‟s conduct was so “inherently unlikely to culminate in the commission of a crime that neither such conduct nor the actor presents a public danger” pursuant to § 5.05 (2).  The Influence of the MPC on Federal/State Criminal Codes  Nearly two-thirds of states have revised their codes and nearly all of them have rejected the impossibility defense entirely.  Nearly all the federal courts of appeals now follow the MPC approach, with a few exceptions.

43

44
United States v. Berrigan Facts: Berrigan was convicted of an attempt to violate a federal statute making it criminal to take anything into or out of a federal prison contrary to regulations of the attorney general. The statute prohibited such traffic “without the knowledge and consent” of the prison warden. Berrigan believed that the prison warden was ignorant of his smuggling letters in and out of the prison, but in fact, the warden had prior knowledge of the arrangement and had agreed to let the courier pretend cooperation in the smuggling plan. Holding: The Third Circuit reversed the conviction. Reasoning: The Third Circuit reasoned, “here, were are faced with a third situation [aside from factual and legal impossibility] where there is a motivation, desire and expectation of sending a letter without the knowledge and consent, and the intended act is performed, but unknown to the sender, the transmittal is accomplished with the knowledge and consent of the warden…Applying the principles of the law of attempt to the instant case, the writing of the letters, and their copying and transmittal by the courier…constituted the act…What the government did not prove – and could not prove because it was a legal impossibility – was the “external, objective situation which the substantive law may require to be present,” to-wit, absence knowledge and consent of the warden. Without such proof, the consequence or result did not constitute an offense that violated the federal statute. United States v. Oviedo Facts: An undercover agent contacted defendant and asked to buy heroin. Defendant agreed and appeared at an arranged time and place with what he claimed was heroin. The agent conducted a field test with positive result and arrested defendant. However, laboratory analysis revealed that the substance was not heroin but procaine hydrochloride which was not a controlled substance. The prosecution therefore charged the defendant with attempted distribution of heroin, and a jury convicted, apparently rejecting defendant‟s testimony that he knew the substance was not heroin and was only trying to rip the buyer off. Holding: The Fifth Circuit reversed the conviction and rejected the traditional distinction between legal and factual impossibility. Reasoning: The court reasoned that to adopt the district court‟s approach and sustain a conviction since there is sufficient proof of intent would set a dangerous precedent. The court explained that when the defendant sells a substance which is actually heroin, it is reasonable to infer that he knew the physical nature of the substance, and to place on him the burden of dispelling that inference…However, if we convict the defendant of attempting to sell heroin for the sale of a non-narcotic substance, we eliminate an objective element that has major evidentiary significance and we increase the risk of mistaken conclusions that the defendant believed the goods were narcotics. Thus, we demand that in order for a defendant to be guilty of a criminal attempt, the objective acts performed, without any reliance on the accompanying mens rea, mark the defendant‟s conduct as criminal in nature.”

EXCULPATION A. Principle of Justification  J.L. Austin‟s Theory  One way of [defending conduct] is to admit flatly that he, X, did do that very thing, A, but to argue that it was a good thing, or the right or sensible thing, or a permissible thing to do, either in general or at least in the special circumstances of the occasion. To take this line of reasoning is to justify action, to give reasons for doing it…  In this line of reasoning, we accept responsibility but deny that it was bad. B. Self-Defense Under the Common Law  Why Allow Self-Defense?  A utilitarian might argue that failure to recognize a claim of self-defense would be pointless, since, as with other acts done under threat of death, the law‟s threat of punishment in the future is unlikely to deter an actor who believes he must act now or perish.  As Justice Holmes said, “detached reflection cannot be expected in the presence of an uplifted knife.”  A retributivist would argued that innocent victims of aggressive attacks are not immoral actors and cannot be seen as “blameworthy” when they respond to such attack.  A moralist would argued that the defendant has a right to autonomy, which he or she cannot be made to surrender even if he or she must kill to enforce that right. Thus, even if the defendant could avoid injury to the aggressor by retreating, we authenticate his or her right not to have her “space” and autonomy infringed.

44

45
 The General Requirements of a Claim of Self-Defense  For a valid exculpatory claim of self-defense, all of the following elements must be present: (i) Actual/apparent threat of (ii) death/serious bodily harm from (iii) an unlawful act that is (iv) imminent and defendant (v) both subjectively and objectively believed (vi) that the actual response was (vii) necessary and proportional to save him/herself or another (viii) and that there was no alternative to using deadly force (or was in a “protected area” like a home or place of work).  A valid self-defense claim contains a: (i) necessity component; (ii) a proportionality requirement; and (iii) a reasonable belief rule that overlays the defense.  N.B. Defendant‟s beliefs must be HONEST and OBJECTIVELY REASONABLE.  Clarification of Principles of a Claim of Self-Defense  Many American courts have adopted the rule that a defendant who killed in the mistaken belief that he was the victim of a deadly attack would entirely looks the defense if the mistake was unreasonable – the rule applies an “all or nothing” approach.  An aggressor is a person whose “affirmative unlawful act is reasonably calculated to produce an affray foreboding injurious or fatal consequences.”  A person is an aggressor even if he merely starts a non-deadly conflict.  A person is not an aggressor if his conduct, no matter how provocative, is lawful.  Many courts hold that when the victim of a non-deadly assault responds with deadly force, the original aggressor immediately regains his right of self-defense.  Other courts require the initial non-deadly aggressor to avail himself of an obviously safe retreat rather than allowing him to respond with equally deadly force.  Imperfect Self-Defense Claims  Some states recognize a so-called “imperfect” or “incomplete” defense of self-defense to murder, which results in conviction for the lesser offense of manslaughter.  One version is the retreat rule – retreat to known place of complete safety – if he fails to do so, his right of self-defense is considered imperfect.  Second version – some states provide that a defendant, who kills another because he unreasonably believes that factual circumstances justify the killing, is guilty of manslaughter rather than murder.
United States v. Peterson Facts: Defendant shot and killed a man whom he accosted removing parts from defendant's junked car. An altercation ensued and defendant went into his home and returned with a loaded gun. The victim advanced with a lug wrench when he was shot. Defendant contended he was not required to retreat because he was within the bounds of his dwelling. Holding: The appellate court disagreed and affirmed the conviction. The court held the right of self-defense was unavailable to an aggressor, and the no-retreat rule if attacked at home was available only to those who were without fault in causing the conflict. Reasoning: It has long been accepted that one cannot support a claim of self-defense by a self-generated necessity to kill. The right of homicidal self-defense is granted only to those free from fault in the difficulty; it is denied to slayers who incite the fatal attack, encourage the fatal quarrel or otherwise promote the necessitous occasion for taking life. The fact that the deceased struck the first blow, fired the first shot or made the first menacing gesture does not legalize the self-defense claim if in fact the claimant was the actual provoker. In sum, one who is the aggressor in a conflict culminating in death cannot invoke the necessities of self-preservation. Only in the event that he communicates to his adversary his intent to withdraw and in good faith attempts to do so is he restored to his right of self-defense. Commonwealth v. Colandro Holding: “If the act is committed under the influence of an uncontrollable fear of death or great bodily harm, caused by the circumstances, but without the presence of all the ingredients necessary to excuse the act on the ground of self-defense, the killing is manslaughter.” State v. Schroeder Facts: A 19 year-old inmate killed his older cellmate who made threats of bodily and sexual assault because of a gambling debt … on appeal, the majority found no error in the trial court‟s failure to given any instructions on self-defense – “words alone are not sufficient justification for an assault.”

45

46
State v. James Holding: “Imminence does not require an actual physical assault; a threat, or its equivalent, can support selfdefense when there is a reasonable belief that the threat will be carried out.” Jahnke v. State Facts: A 16 year-old boy waited with his shotgun for an hour for his parent to return from dinner and then shot his father dead as he entered the house. Evidence at trial revealed that for 14 years, the father had been physically and psychologically abusing the boy. Holding: The Wyoming Supreme Court found no error and upheld a verdict of voluntary manslaughter – “To permit capital punishment to be imposed upon the subjective conclusion of an individual that prior acts and conduct of the deceased justified the killing would amount to a leap into the abyss of anarchy.”

C. Self-Defense Under the Model Penal Code  Model Penal Code § 3.04 – Use of Force in Self-Protection  (1) Use of Force Justifiable for Protection of the Person. Subject to the provisions of this Section and of § 3.09 [mistake as to arrest], the use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.  (2) Limitations on Justifying Necessity for Use of Force.  
 (a) The use of force is not justifiable under this Section:  (i) To resist an arrest that the actor knows is being made by a peace officer, although the arrest is unlawful; or  (ii) To resist force used by the occupier or possessor of property or by another person on his behalf, where the actor knows that the person using the force is doing so under a claim of right to protect the property, except that this limitation shall not apply if:  (A) The actor is a public officer acting in the performance of his duties or a person lawfully assisting him therein or a person making or assisting in a lawful arrest; or  (B) The actor has been unlawfully dispossessed of the property and is making a re-entry or recaption justified by § 3.06; or  (C) The actor believes that such force is necessary to protect himself against death or serious bodily injury.  (b) The use of deadly force is not justifiable under this Section unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat; nor is it justifiable if:  (i) The actor, with the purpose of causing death or serious bodily injury, provoked the use of force against himself in the same encounter; or  (ii) The actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action that he has no duty to take, except that:  (A) The actor is not obliged to retreat from his dwelling or place of work, unless he was the initial aggressor or is assailed in his place of work by another person whose place of work the actor knows it to be; and  (B) A public officer justified in using force in the performance of his duties or a person justified in using force in his assistance or a person justified in using force in making an arrest or preventing an escape is not obliged to desist from efforts to perform such duty, effect such arrest or prevent such escape because of resistance or threatened resistance by or on behalf of the person against whom such action is directed.  (c) Except as required by paragraphs (a) and (b) of this Subsection, a person employing protective force may estimate the necessity thereof under the

46

47
circumstances as he believes them to be when the force is used, without retreating, surrendering possession, doing any other act that he has no legal duty to do or abstaining from any lawful action.
 N.B.

Under the MPC, an exception to the duty to retreat occurs when the defendant is attacked in his own home. Thus, a father can kill his son rather than retreat.  This common law agrees as well!  Note that some jurisdictions read in a requirement to retreat from co-occupants.

People v. Goetz Facts: Defendant was indicted on four counts of attempted murder, assault, and criminal possession of a weapon for having shot and wounded four youths on a subway train after one or two of the youths approached him and asked for money. The lower courts, concluding that the prosecutor's charge to the Grand Jury on the defense of justification was erroneous, dismissed the charges. Holding: The reviewing court held that although N. Y. Penal Law § 35.15, and its predecessors, never required that an actor's belief as to the intention of another person to inflict serious injury be correct in order for the use of deadly force to be justified, the provisions had uniformly required that the belief comport with an objective notion of reasonableness. Reasoning: Consistent with most justification provisions, N.Y. Penal Law § 35.15 permits the use of deadly physical force only where requirements as to triggering conditions and the necessity of a particular response are met. As to the triggering conditions, the statute requires that the actor "reasonably believes" that another person either is using or about to use deadly physical force or is committing or attempting to commit one of certain enumerated felonies, including robbery. As to the need for the use of deadly physical force as a response, the statute requires that the actor "reasonably believes" that such force is necessary to avert the perceived threat.  Statutes or rules of law requiring a person to act "reasonably" or to have a "reasonable belief" uniformly prescribe conduct meeting an objective standard measured with reference to how "a reasonable person" could have acted.

 Model Penal Code § 3.09 – Reckless or Negligent Belief  (2) When the actor believes that the use of force upon or toward the person of another is necessary for any of the purposes for which such belief would establish a justification under §§ 3.03 to 3.08 but the actor is reckless or negligent in having such belief or in acquiring or failing to acquire any knowledge or belief that is material to the justifiability of his use of force, the justification afforded by those Sections is unavailable in a prosecution for an offense for which recklessness or negligence, as the case may be, suffices to establish culpability.
 However,

the MPC‟s standard (§ 2.02) for recklessness and negligence involves determining whether the actor‟s conduct “involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.”  Effectively, the MPC, and the courts follow its lead, allow juries to consider specific facts about the defendant‟s character – subjectivizing the “reasonable prudent person.”  This could arguably means that in order to find that someone has committed a reckless homicide in self-defense, the jury would have to find that he/she honestly believed in the threat but also was consciously aware of a risk that the belief was wrong.

D. Defense of Property  Defense of Property and Limits on Force  Generally, a person cannot use deadly force simply to protect her property against unlawful interference, even if there is no other way to prevent the threatened harm.  However, non-lethal force may be used to protect both real and personal property in one‟s possession if it reasonably appears necessary to prevent or terminate an unlawful intrusion onto or interference with that property.  Force is not reasonable unless a prior request to desist has been made.  Traditional rules require the property defended to be in the possession of the person using force; a person may not ordinarily use force to recapture property of which he has been unlawfully dispossessed.

47

48
 The one exception is that a person who acts promptly after dispossession may use nonlethal force, as reasonably necessary, to regain or recapture his property.  Spring Guns. At common law, a mechanical device may be used “where the intrusion is, in fact, such that the person, were he present, would be justified in taking the life or inflicting the bodily harm with his own hands.”
People v. Ceballos Facts: Defendant‟s garage below his apartment was repeatedly vandalized (i.e., had some tools stolen from his house). He set up a trap gun. Two boys broke into the garage when defendant was not there and the gun fired and hit one of the boys in the face. Defendant pleaded self-defense but was convicted of assault with a deadly weapon. Holding: The judgment was affirmed on appeal. The court rejected the defendant‟s plea, saying that spring guns can‟t be used to protect property, even if the owner would be justified in using the same amount of force were he present – his presence in the home is what allows him to protect himself with deadly force. Note: Note that in most states, if the kids had been breaking into the garage during the day, defendant still wouldn‟t have been allowed deadly force anyway because it‟s not a felony to “break in and enter” in the daytime (larceny) the way it is at night (burglary). And although the homicide is justifiable as a defense against a forcible and atrocious crime, the burglary by the kids here did not threaten death or serious injury to anyone since they were the only persons present. Neither can the use of deadly force be justified solely for the protection of property.

 Model Penal Code § 3.06 – Use of Force for Protection of Property  (1) Subject to the provisions of this Section and of § 3.09, the use of force upon or toward the person of another is justifiable when the actor believes that such force is immediately necessary:
  (a) To prevent or terminate an unlawful entry or other trespass upon land or a trespass against or the unlawful carrying away of tangible, movable property, provided that such land or movable property is, or is believed by the actor to be, in his possession or in the possession of another person for whose protection he acts; or  (b) To effect an entry or re-entry upon land or to retake tangible movable property, provided that the actor believes that he or the person by whose authority he acts or a person from whom he or such other person derives title was unlawfully dispossessed of such land or movable property and is entitled to possession, and provided, further, that:  (i) The force is used immediately or on fresh pursuit after such dispossession; or  (ii) The actor believes that the person against whom he uses force has no claim of right to the possession of the property and, in the case of land, the circumstances, as the actor believes them to be, are of such urgency that it would be an exceptional hardship to postpone the entry or re-entry until a court order is obtained.  (3) Limitations on Justifiable Use of Force.  (a) Request to Desist. The use of force is justifiable under this Section only if the actor first requests the person against whom such force is used to desist from his interference with the property, unless the actor believes that:  (i) Such request would be useless; or (ii) it would be dangerous to himself or another person to make the request; or (iii) substantial harm will be done to the physical condition of the property that is sought to be protected before the request can effectively be made.  (b) Exclusion of Trespasser. The use of force to prevent or terminate a trespass is not justifiable under this Section if the actor knows that the exclusion of the trespasser will expose him to substantial danger of serious bodily injury.  (c) Resistance of Lawful Re-entry or Recaption. The use of force to prevent an entry or reentry upon land or the recaption of movable property is not justifiable under this Section, although the actor believes that such re-entry or recaption is unlawful, if: (i) the re-entry or recaption is made by or on behalf of a person who was actually dispossessed of the property; and (ii) it is otherwise justifiable under Subsection (1)(b) of this Section.  (d) Use of Deadly Force. The use of deadly force is not justifiable under this Section unless the actor believes that: (i) the person against whom the force is used is attempting to dispossess him of his dwelling otherwise than under a claim of right to its

48

49
possession; or (ii) the person against whom the force is used is attempting to commit or consummate arson, burglary, robbery or other felonious theft or property destruction and either:  (A) Has employed or threatened deadly force against or in the presence of the actor;  (B) The use of force other than deadly force to prevent the commission or the consummation of the crime would expose the actor or another in his presence to substantial danger of serious bodily injury.
The Peairs Case in Louisiana Facts: A woman answered the door to her house to find two Japanese exchange students who were lost on the way to a Halloween party and who spoke little English. The woman‟s husband came to the door brandishing a handgun, by which time the boys had retreated to the sidewalk. One of the boys walked toward the man (apparently not seeing the gun – he didn‟t have his contact lenses in) and then man shot him at point blank range in the chest with a .44 magnum handgun. The husband was indicted for manslaughter but claimed that the shooting, though mistaken, was justified under a Louisiana statute which allowed for the use of deadly force based on a reasonable belief that an intruder is “likely to use any unlawful force against a person [in the dwelling] while committing… a burglary of that dwelling.” Holding: After a seven-day trial, the husband was acquitted. Notes: In a subsequent civil trial, the judge found “no justification whatsoever” for the shooting and awarded the estate of the Japanese student $650,000 in damages against the husband. Sydnor v. State Facts: Defendant was sitting on a stoop when a man approached, pulled a gun and told the defendant to hand over the gold chain he was wearing. After hitting the defendant over the head and taking $30 from his pockets, the man was just about to take the gold chain when the defendant, assisted by friends, grabbed the gun and took it away. The man attempted to flee but the defendant fired five shots hitting the man in the back four times. At the defendant‟s trial, the judge instructed the jury that before using deadly force, the defendant was required to retreat unless “at the moment the shots were fired the defendant was being robbed.” Defendant was convicted of voluntary manslaughter. Holding: On appeal, the court affirmed the conviction, rejecting the defense argument that the robbery was “a continuous transaction that is not complete until the perpetrator reaches a place of temporary safety.”

E. Battered Woman Syndrome and Self-Defense  The Syndrome  In most jurisdictions, expert testimony may readily be introduced to show either or both: (i) why the woman stayed with her batterer (i.e., important to her credibility as a witness; it answers the jurors‟ question: “Considering that she stayed with him, could the abuse really have been that bad?”); and (ii) that the woman has developed the ability to accurately evaluate her batterer’s dangerousness and anticipate a level of violence.  BWS expert testimony is ONLY admissible if it goes to supporting or clarifying an element of a defendant‟s self-defense claim; it is not in itself, a separate defense.  Both issues relate to the reasonableness of her belief that her actions were necessary for self-defense; though some feminists worry that this defense makes women look unreasonable and moves closer to insanity (excuse) than self-defense (justification).  Note, the morality of the victim should never be relevant, but the morality of the defendant always should; we cannot forgive a homicide because we dislike the victim.  Some critics argued that to allow such testimony is to create a slippery slope allowing other defendants to introduce expert testimony on a wide variety of other syndromes.
State v. Kelly Facts: Defendant was charged with murder after stabbing her husband. At trial, defendant attempted to argue that she suffered from battered spouse syndrome and that the stabbing was an act of self-defense. However, trial court excluded defendant's expert's testimony regarding battered spouse syndrome, regarding it as irrelevant. The jury subsequently found defendant guilty of reckless manslaughter. Holding: On appeal, the court first held that evidence relating to battered spouse syndrome was relevant in determining whether a reasonable fear of danger existed requisite to a self-defense claim. Thus, the court held that the trial court committed reversible error. However, examining the theory of battered spouse syndrome, as well as defendant's expert's record, the court held that the emerging nature of the syndrome's theory necessitated giving the trial court broad discretion in determining whether defendant's expert testimony was sufficiently reliable to be admissible.

49

50
Reasoning: As with the determination of the existence of the defendant's belief, the question of the reasonableness of this belief is to be determined by the jury, not the defendant, in light of the circumstances existing at the time of the homicide.  The jury, in determining objective reasonableness, must view the situation from the defendant’s perspective. To effectively present the situation as perceived by the defendant, and the reasonableness of her fear, the defense has the option to explain her feelings to enable the jury to overcome stereotyped impressions about women who remain in abusive relationships. It is appropriate that the jury be given a professional explanation of the battering syndrome and its effects on the woman through the use of expert testimony.”  “The jury must consider the defendant‟s situation and knowledge, which makes the evidence relevant, BUT the ultimate question is whether a reasonable person, NOT a reasonable battered woman, would believe in the need to kill to prevent imminent harm.”

 BWS and Non-Confrontational Self-Defense  In a confrontational battered woman case (i.e., the defendant killed him during the course of a beating), an instruction of self-defense is almost always given; the non-confrontations cases present a harder issue.  Most courts will not allow expert testimony in non-confrontational cases.  Similarly, a woman will not be allowed to present a BWS self-defense claim if she hired a third-party to commit the homicide.  Note that this many inconsistent with the characteristics of BWS itself.
State v. Norman Facts: Defendant had been abused by her husband for 25 years, and had sought help from the police, tried to kill herself, and tried to get welfare so that she could leave him just 3 days prior to the killing. She finally killed her husband in his sleep. Defendant was tried for first-degree murder and found guilty of voluntary manslaughter. Holding: The court held that the trial court was correct to not allow the jury to find perfect self-defense, because there was no imminent threat by defendant‟s husband at the moment she killed him; she had ample time and opportunity to resort to other means of preventing further abuse by her husband. Speculative belief about remote or inevitable harm is not enough for self-defense. State v. James Holding: “Imminence does not require an actual physical assault; a threat, or its equivalent, can support selfdefense when there is a reasonable belief that the threat will be carried out.”

 A Duty to Retreat v. the Right to Stand Your Ground  The general rule is that self-defense is measured against necessity (i.e., that deadly force may not be used to repel aggression if such force is unnecessary).  No Retreat Rule: A majority of jurisdictions have adopted the rule that a non-aggressor is permitted to use deadly force to repel an unlawful deadly attack, even if he is aware of a place to which he can retreat in complete safety.  Retreat Rule: In contrast, a minority of states adopt a rule that an innocent person threatened by deadly force must retreat rather than use deadly force if he is aware that he can do so in complete safety; the person has to be aware of place of complete safety.
Regina v. Field Facts: Court reversed a conviction because the instruction indicated that if defendant could reasonably have left the place where he was before his attackers arrived, he had a duty to do so and he should not have stayed to defend himself … “not duty to retreat could arise until the parties were at any rate within sight of each other and the threat to the person relying self-defense is so imminent that he was unable to demonstrate that he did not mean to fight.” State v. Abbott Facts: A dispute erupted; Abbott was charged with assault and battery against his neighbors and their son after the three of them ended up with hatchet wounds. He was found guilty of the charges relating to the son. Holding: The court held that the trial court‟s instructions on the duty to retreat were ambiguous and confusing. The correct instructions would be that a defendant is entitled to hold his ground unless he intends to use deadly force against his assailant(s). Then, he is required to retreat only if he “knows that he can avoid the necessity of using such force with complete safety by retreating” [language from the MPC]. Note: The “true man” doctrine limits the duty to retreat in many American jurisdictions. The issue of retreat only arises if D resorted to deadly force; it is deadly force which is not justifiable when an opportunity to retreat is at

50

51
hand; it is not the nature of the force defended against which raises the issue of retreat, but rather the nature of the force which the accused employed in his defense.

F. Use of Force by Law Enforcement  Use of Force in Law Enforcement  Generally, a police officer or private person is justified in using non-lethal force upon another if she reasonably believes that: (i) such other person is committing or has committed a felony, or a misdemeanor amounting to a breach of the peace; and (ii) the force used is necessary to prevent the commission of the offense, or to effectuate an arrest.  Model Penal Code § 3.07 – Use of Force in Law Enforcement  (1) Use of Force Justifiable to Effect an Arrest. Subject to the provisions of this Section and of Section 3.09, the use of force upon or toward the person of another is justifiable when the actor is making or assisting in making an arrest and the actor believes that such force is immediately necessary to effect a lawful arrest.  (2) Limitations on the Use of Force.  (a) The use of force is not justifiable under this Section unless: (i) the actor makes known the purpose of the arrest or believes that it is otherwise known by or cannot reasonably be made known to the person to be arrested; and (ii) when the arrest is made under a warrant, the warrant is valid or believed by the actor to be valid.  (b) The use of deadly force is not justifiable under this Section unless: (i) the arrest is for a felony; and (ii) the person effecting the arrest is authorized to act as a peace officer or is assisting a person whom he believes to be authorized to act as a peace officer; and (iii) the actor believes that the force employed creates no substantial risk of injury to innocent persons; and (iv) the actor believes that:  (A) The crime for which the arrest is made involved conduct including the use or threatened use of deadly force; or  (B) There is a substantial risk that the person to be arrested will cause death or serious bodily injury if his apprehension is delayed.  (3) Use of Force to Prevent Escape from Custody. The use of force to prevent the escape of an arrested person from custody is justifiable when the force could justifiably have been employed to effect the arrest under which the person is in custody, except that a guard or other person authorized to act as a peace officer is justified in using any force, including deadly force, that he believes to be immediately necessary to prevent the escape of a person from a jail, prison, or other institution for the detention of persons charged with or convicted of a crime.  (4) Use of Force by Private Person Assisting an Unlawful Arrest.
  (a) A private person who is summoned by a peace officer to assist in effecting an unlawful arrest, is justified in using any force that he would be justified in using if the arrest were lawful, provided that he does not believe the arrest is unlawful.  (b) A private person who assists another private person in effecting an unlawful arrest, or who, not being summoned, assists a peace officer in effecting an unlawful arrest, is justified in using any force that he would be justified in using if the arrest were lawful, provided that (i) he believes the arrest is lawful, and (ii) the arrest would be lawful if the facts were as he believes them to be.  (5) Use of Force to Prevent Suicide or the Commission of a Crime.
  (a) The use of force upon or toward the person of another is justifiable when the actor believes that such force is immediately necessary to prevent such other person from committing suicide, inflicting serious bodily injury upon himself, committing or consummating the commission of a crime involving or threatening bodily injury, damage to or loss of property or a breach of the peace, except that: (i) any limitations imposed by the other provisions of this Article on the justifiable use of force in self-protection, for the protection of others, the protection of property, the effectuation of an arrest or the

51

52
prevention of an escape from custody shall apply notwithstanding the criminality of the conduct against which such force is used; and (ii) the use of deadly force is not in any event justifiable under this Subsection unless:  (A) The actor believes that there is a substantial risk that the person whom he seeks to prevent from committing a crime will cause death or serious bodily injury to another unless the commission or the consummation of the crime is prevented and that the use of such force presents no substantial risk of injury to innocent persons;  (B) The actor believes that the use of such force is necessary to suppress a riot or mutiny after the rioters or mutineers have been ordered to disperse and warned, in any particular manner that the law may require, that such force will be used if they do not obey.  (b) The justification afforded by this Subsection extends to the use of confinement as preventive force only if the actor takes all reasonable measures to terminate the confinement as soon as he knows that he safely can, unless the person confined has been arrested on a charge of crime.
Durham v. State Facts: Defendant, a game warden, arrested Long for illegal fishing. Long fled to his boat to attempt to escape. Defendant pursued but Long then hit him with an oar. Defendant than shot Long in the arm and was prosecuted for assault and battery. Holding: The court reversed the defendant‟s conviction. For misdemeanors, the officer may use all of the force necessary to make the arrest, except that he may not use deadly force or inflict serious bodily harm on one merely fleeing arrest. If the person resists arrest, such that the officer‟s life is in danger or serious bodily harm is threatened, the officer may take the person‟s life if necessary. Tennessee v. Garner Facts A Tennessee fleeing felon statute authorized police officers to use deadly force to capture unarmed suspects fleeing from nonviolent felonies. One night, an unarmed 15 year-old boy broke into an unoccupied house to steal money and property. Two police officers responded and one yelled at the boy to stop. As the boy tried to climb over a fence, the officer shot and killed him. Garner‟s estate sued the Memphis Police Department seeking damages under §1983. The state intervened to defend the statute. Holding: According to the Supreme Court, a police officer violates the Fourth Amendment prohibition against unreasonable searches and seizures if she uses deadly force to effectuate an arrest unless: (i) she “has probable cause to believe that the suspect poses a significant threat of death or serious bodily physical injury to the officer or others; and (ii) such force is necessary to make the arrest or prevent escape. The Court balanced the suspect‟s rights against those of society – the intrusion on a suspect‟s rights is “unmatched” when an arresting officer uses deadly force. United States v. Hillsman Facts: Defendant and several others were attending funeral. Plainclothes agents were in the crowd. A fight broke out and one of the agents fired his weapon. The agents fled. Defendant and other chased one of the agents and fired shots at him, but did not injure him. Defendant was convicted of assaulting a federal officer. Holding: The court affirmed the conviction, holding that a person may be liable for assaulting a federal officer when he did not know the victim was a federal officer. Defendant only requested instruction as to voluntary manslaughter. The jury found that the agent had not committed a felony, thus defendant was properly convicted.

G. Choice of the Lesser Evil  The Doctrines of Necessity  Under the common law, there must be (i) a threat of (ii) imminent injury to the person or property (iii) from which there are no [reasonable] alternatives except the commission of a crime; (iv) the defendant‟s acts must prevent an equal or more serious harm; and (v) the defendant must not have created the conditions of his own dilemma.  Note that there are two major differences between duress v. necessity: first, necessity does not require a threat of death or serious bodily harm – as long as the defendant actually inflicts less harm than he was threatened with, the claim of necessity can be made; and second, while necessity requires a weighing of the injury inflicted with the injury threatened, there is no inherent reason to restrict necessity to threats against life or person.

52

53
 Model Penal Code § 3.02 – Justification Generally: Choice of Evils  (1) Conduct that the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that:
  (a) The harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged; and  (b) Neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and  (c) A legislative purpose to exclude the justification claimed does not otherwise plainly appear.  (2) When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his conduct, the justification afforded by this Section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability.
People v. Unger Facts: Defendant was charged with escape. At trial, defendant testified that he had been threatened by a fellow inmate. The inmate brandished a knife in an attempt to force defendant to engage in homosexual activities. Defendant was subsequently transferred to an honor farm and was assaulted and sexually molested by three inmates. Five days after the assault, defendant was threatened because it was believed that defendant reported the assault to authorities. Defendant claimed he left the honor farm to save his life and planned to return once he found someone that could help him. The trial court instructed the jury to disregard defendant's reasons for escape and refused to instruct the jury on the statutory defenses of compulsion and necessity. Defendant was convicted, and he appealed. Holding: The appellate court reversed the conviction and remanded for a new trial, holding that the instruction was reversible error. The State appealed. The court held that defendant was entitled to submit his defense of necessity to the jury. The appellate court's judgment was affirmed. Reasoning: Conditions that are relevant factors to be used in assessing claims of necessity are: (1) the prisoner is faced with a specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future; (2) there is no time for a complaint to the authorities or there exists a history of futile complaints which make any result from such complaints illusory; (3) there is no time or opportunity to resort to the courts; (4) there is no evidence of force or violence used towards prison personnel or other "innocent" persons in the escape; and (5) the prisoner immediately reports to the proper authorities when he has attained a position of safety from the immediate threat.  The existence of each condition is not, as a matter of law, necessary to establish a meritorious necessity defense. The conditions are matters, which go to the weight and credibility of the defendant's testimony. A court will not weigh the evidence where the question is whether an instruction is justified.  The absence of one or more of the elements listed does not necessarily mandate a finding that the defendant cannot assert the defense of necessity State v. Rasmussen Facts: Defendant‟s license to drive had been suspended. On a cold night during a snowstorm he found himself stranded on a highway in North Dakota. His car had broken down, and the person driving had gone to look for help. When the driver did not return, the defendant tried successfully to get the car started and took the wheel driving away. He was caught and prosecuted for driving with a suspended license – a strict liability offense. United States v. Schoon Facts: Protestors gained admittance to the IRS office in Arizona where they chanted, “Keep American tax dollars out of El Salvador,” splashed simulated blood all over the office and obstructed the office‟s operation. The protestors were arrested, charged and convicted failing to comply with an order of a federal police officer. The district court denied the necessity defense on the grounds that the requisite immediacy was lacking, the actions taken would not abate the alleged evil, and other legal alternatives existed. Protestors appealed. Holding: The Ninth Circuit affirmed the convictions and agreed with the district court, asserting that to forgive a crime taken to avert a lesser harm would fail to maximize social utility, the cost of the crime would outweigh the harm averted by its commission, and criminal acts could not be condoned to thwart threats that were yet to be imminent or for which there were legal alternatives to abate the harm. The court asserted that there was no evidence that the procedure by which an El Salvador policy was adopted was in any way improper nor that appellants were prevented from participating in the democratic processes through which a policy was chosen. The court found that the El Salvador policy was not in itself a legally cognizable harm, so the harm resulting from criminal action taken to secure its repeal outweighed any benefit because such indirect protest was unlikely to immediately change Congress' policy.

53

54
Reasoning: To invoke the necessity defense, defendants must make a colorable showing that: (1) they were faced with a choice of evils and chose the lesser evil, (2) they acted to prevent imminent harm, (3) they reasonably anticipated a direct causal relationship between their conduct and the harm to be averted, and (4) they had no legal alternatives to violating the law. Necessity is, essentially, a utilitarian defense. It justifies criminal acts taken to avert a greater harm, maximizing social welfare by allowing a crime to be committed where the social benefits of the crime outweigh the social costs of failing to commit the crime. The necessity defense in indirect civil disobedience cases is a back door attempt to attack government programs in a manner foreclosed by federal standing requirements.

 Necessity and Taking a Life  Under the common law, a defendant who deliberately killed an innocent person, even for the survival of he and of others, is not permitted to claim self-defense.  However, it is unclear if a chance of luck in selecting the victim would be permitted.  In contrast, the MPC would allow such an act of homicide, holding that most “persons probably think a net saving of lives is ethically warranted if the choice among lives to be saved is not unfair. Certainly the law should permit such a choice.”  The MPC‟s determination turns on a calculus of greater and lesser harms.
Regina v. Dudley and Stephens Facts: Floating adrift in a rowboat for several days, likely thousands of miles from shore, the two defendants decided that they would put to death a third companion [the weakest] to save the rest. The companion refused to consent, and the two defendants killed him while he slept. The men fed upon his body for three days and on the fourth, they were rescued by a passing vessel. The defendants were convicted of murder but pleaded a defense of necessity. Holding: The court held that the defendants were not entitled to a self-defense claim. Reasoning: Quoting Lord Hale, the court said, “if a man desperately assaulted and in peril of death, and cannot otherwise escape unless, to satisfy his assailant‟s fury, he will kill an innocent person then present, the fear and actual force will not acquit him of the crime and punishment of murder, if he commit the act, for he ought rather to die himself than kill an innocent; but if he cannot otherwise save his own life the law permits him in his own defense to kill the assailant, for by the violence of the assault, and the offense committed upon him by the assailant himself, the law of nature, and necessity hath made him his own protector.”

EXCUSE A. Principles of Excuse  What Are Excuses?  A defendant is excused when he is judged to be not blameworthy for his conduct, even though the conduct itself is improper or harmful.  All excuse defenses are predicated upon the presence of some disability or disabling condition affecting the actor claiming the defense.  Excuses can be organized into three categories: (i) involuntary actions; (ii) actions related to cognitive deficiencies; and (iii) actions related to volitional deficiencies.  Justification for Having Excuses  J. Bentham explained the point of excuses to be that they identified situations in which conduct is non-deterrable, so that punishment would be so much unnecessary evil. For since only the non-deterrable are excused, withholding punishment offers no comfort to those who are deterrable.  H.L.A. hart argued that by confining liability to cases in which persons have freely chosen, excuses serve to maximize the effect of a person‟s choices within the framework of coercive law, thereby furthering the satisfaction people derive in knowing that they can avoid the sanction of the law if they choose. Hart‟s account focuses on the interest and satisfactions of the great majority of us who never become targets of law enforcement – our security in knowing we will never be punished if we do not choose to break the law. B. Duress  The Doctrine of Duress  At the common law, a claim of duress could only be made if the follow elements were present:

54

55
 (i) A well-founded fear, generated by (ii) a threat from a human being of (iii) an imminent [immediate] (iv) serious bodily harm or death (v) to himself [or sometimes a near relative] (vi) not of his own doing.  Model Penal Code § 2.09 – Duress  (1) It is an affirmative defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, that a person of reasonable firmness in his situation would have been unable to resist.  (2) The defense provided by this Section is unavailable if the actor recklessly placed himself in a situation in which it was probable that he would be subjected to duress. The defense is also unavailable if he was negligent in placing himself in such a situation, whenever negligence suffices to establish culpability for the offense charged.  (3) It is not a defense that a woman acted on the command of her husband, unless she acted under such coercion as would establish a defense under this Section. [The presumption that a woman acting in the presence of her husband is coerced is abolished.]  (4) When the conduct of the actor would otherwise be justifiable under § 3.02, this Section does not preclude such defense.
State v. Toscano Facts: Defendant was convicted of conspiring to obtain money by false pretenses. Defendant appealed his conviction, arguing that he acted under duress. The lower court held that the threatened harm to defendant and his family was not sufficiently imminent to justify charging the jury on the defense of duress. Holding: The New Jersey Supreme Court reversed defendant's conviction, enunciating a new rule. The supreme court held that duress was a defense to crimes other than murder if defendant engaged in conduct because he was coerced to do so by the use of, or threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would not have been able to resist. The court continued that defendant had the burden of proving by a preponderance of the evidence the defense duress. Reasoning: At common law the defense of duress was recognized only when the alleged coercion involved a use or threat of harm which is "present, imminent and pending" and of such a nature as to induce a well grounded apprehension of death or serious bodily harm if the act is not done. In charging the jury the trial judge should advert to the factor of immediacy, as well as the gravity of the harm threatened, the seriousness of the crime committed, the identity of the person endangered, the possibilities for escape or resistance and the opportunities for seeking official assistance. The judge should also emphasize that the applicable standard for judging the defendant's excuse is the person of reasonable firmness in the defendant's situation. United States v. Fleming Facts: The defendant was a military officer charged with aiding the enemy and promoting Communist propaganda while he was held as a prisoner of the Korean War. He was convicted by general court-martial. The Army Board of Review affirmed the defendant‟s conviction of violations of the Article of War. Holding: On petition for review, the court affirmed. The evidence supported the findings of guilt. Reasoning: The good motives of the defendant in communicating with the enemy were no defense to his crime; he intended to do the acts charged. The threat of duress or coercion was not so immediate as to legally justify the defendant‟s acts. The instruction on duress and coercion was proper. The accused had not acted under a reasonably grounded fear of immediate death or great bodily harm.  However, the court said that if his captors had started some form of punishment before he agreed to cooperate, he might have then had a valid defense.

C. The Insanity Defense  Insanity in General  Insanity is a complete defense, but has serious consequences – “winning” means a mental facility with others who have been found either not guilty by reason of insanity or incompetent, where you will be involuntarily treated, often for the rest of your life.  Only in cases of serious felonies do people prefer to be placed in long term, indefinite mental health care. In less serious crimes, the insanity defense is typically not raised.  Mental illness is a very large category, diagnostic term for people who need treatment.  Insanity concerns the state of mind at the time of an offense that renders a person not criminally responsible for the offense.

55

56
 Competency refers to the minimum state of mind you must have in order to be tried; a relatively low standard (as long as the defendant has a basic understanding of what is going on in the trial, he/she is generally deemed competent).  The M‟Naghten Test  A person is insane if, at the time of her act, she was laboring under such a defect of reason, arising from a disease of the mind, that she: (i) did not know the nature and quality of the act that she was doing; or (ii) if she did know, she did not know that what she was doing was wrong, i.e., the accused at the time of doing the act did not know the difference between right and wrong.  The M‟Naghten Test turns on the defendant‟s knowledge and reason – the mental illness must have virtually nullified the defendant‟s cognitive capacity so that he was unable to exercise the moral understanding of normal persons. Without rational ability to recognize and evaluate moral issues raised by his behavior, the criminal law could not influence him.  The word “know” used in both prongs may be interpreted narrowly or broadly. Narrowly: A person may be found sane if she can describe what she is doing and can acknowledge the forbidden nature of her conduct – formal cognitive knowledge; deeper meaning: absent unless the actor can evaluate her conduct in terms of its impact on others and appreciate the total setting in which she acts.  In 2006, the Supreme Court concluded that due process does not require a state to use both prongs of the M‟Naghten test.  About 10 states limit their M‟Naghten test to people who did not know their criminal act was wrong – but it raises the question of the meaning of “wrong.”  Some courts will hold a mentally ill actor responsible if he knew his actions were against the law; consistent with the general rule that ignorance of the law is no excuse.  Some states will excuse an actor if, because of serious mental illness, he believed he had received a direct command from God to commit the harmful act.  Most U.S. jurisdictions use some version of the M‟Naghten Rule.  The M‟Naghten Test is criticized for being “grossly unrealistic” because, by its terms, it does not recognize degrees of incapacity; places “unrealistically tight shackles” upon expert psychiatric testimony; is outdated because it disregards mental illnesses that affect volition; is too narrow in terms of penological theory – if a person knows what she is doing but cannot control her conduct, she is undeterrable – no reason to punish.
M‟Naghten‟s Case Facts: M‟Naghten was indicted for the murder of the prime minister‟s secretary, whom he had apparently mistaken for the prime minister. He had delusions that he was being persecuting and threatened by the government. Holding: The jury found M‟Naghten not guilty for reason of insanity. Following this trial, the House of Lords debated the verdict and the insanity defense in general, and the judiciary attended the debate in order to answer some questions. In the course of their questioning, the famous M‟Naghten Rule for the insanity defense came out: it must be proved that at the time of committing the act, the defendant had a defect of reason or disease of mind such that (i) he did not know the nature and the quality of the act or (ii) he did not know that what he was doing was wrong. Notes: Defendants are presumed to be sane (i.e., doe not require prosecutor to prove sane). And notice there is no language regarding whether or not he could control himself. The King v. Porter Facts: The judge explained the M‟Naghten Rule to the jury in terms of the purposes of punishment, saying that it is pointless for the law to attempt to deter people from committing crimes if their mental condition makes it impossible for them to be influenced by potential punishment. Although many criminals are abnormal in some way, the insanity defense is reserved for people with a temporary or longstanding disease, disorder, or disturbance that makes them unable to know what they are physically doing or unable to understand that it is wrong.

 The Irresistible Impulse Test  A person is insane if, at the time of the offense: (i) he “acted from an irresistible and uncontrollable impulse;” (ii) he “lost the power to choose between the right and wrong, and to avoid doing the act in question, as that his free agency was at the time destroyed;” or (iii) the

56

57
defendant‟s will … has been otherwise than voluntarily so completely destroyed that his actions are not subject to it, but are beyond his control.”  Some courts supplemented the M‟Naughten Rule with the “irresistible impulse” doctrine, to deal with behavior that was compelled even though the actor may have had an abstract knowledge of the wrongness of an act.  The “policeman at the elbow” modification holds that if the defendant would still have committed the act if there had been a policeman at his/her elbow, it was an irresistible impulse.  The Irresistible Impulse is criticized for being psychologically naïve by requiring total incapacity, and by excluding from its boundaries behavior that is the result of extended internal conflict; a majority of psychiatrists now believe that they do not possess sufficient accurate scientific bases for measuring a person‟s capacity for self-control or for calibrating the impairment of that capacity.  Model Penal Code § 4.01 – Mental Disease or Defect Excluding Responsibility  (1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law.  (2) As used in this Article, the terms "mental disease or defect" do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.
 To

be held irresponsible, the individual must, as a result of a mental disease or defect, either lack substantial capacity to appreciate the criminality [wrongfulness] of his conduct or lack substantial capacity to conform his conduct to legal requirements. The standard does not require a total lack of capacity, only that capacity be insubstantial. An individual's failure to appreciate the criminality of his conduct may consist in a lack of awareness of what he is doing or a misapprehension of material circumstances, or a failure to apprehend the significance of his actions in some deeper sense. Wrongfulness is suggested as a possible alternative to criminality, though it is recognized that few cases are likely to arise in which the variation will be determinative. An individual is also not responsible if a mental disease or defect causes him to lack substantial capacity to conform his conduct to the requirements of the law. This part of the standard explicitly reaches volitional incapacities.

 MPC Test and It‟s Criticism of the M‟Naghten Test  The drafters of the MPC test criticized the M‟Naghten Test on several grounds:  The M‟Naghten Test addresses itself to the actor‟s “knowledge,” which can naturally be understood as referring to a simple awareness by the actor of his wrongdoing such as would be manifested by a verbal acknowledgment on his part of the forbidden nature of his conduct.  The shortcoming of this criterion is that it authorizes responsibility in a case in which the actor is not seriously deluded concerning his conduct or its consequences, but in which the actor‟s appreciation of the wrongfulness of his conduct is a largely detached or abstract awareness that does not penetrate to the affective level.  In contrast to the M‟Naghten test and the “irresistible impulse” modification, the MPC formulation reflects the judgment that no test is workable that calls for complete impairment of ability to know or to control.  Substantive Differences in the MPC Test of Legal Insanity  The MPC test expands the test of legal insanity significantly.  First, it expands the kinds of psychological impairments that can excuse a defendant; now, volitional as well as cognitive disability qualifies.  Second, the MPC test does not require total impairment; instead, if a person “lacks substantial capacity,” he may be excused.  Third, it expands the scope of relevant testimony by mental health professionals.  The MPC does not define “mental disease or defect” other than to provide that these terms do not “include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.” This caveat was added to ensure that someone could not claim he was mentally ill

57

58
just because he had an extensive criminal history. Therefore, it excludes psychopathic or sociopathic personality disorders.  The MPC test‟s use of “appreciate” rather than “know” suggests that purely verbal knowledge that an act is wrong will not suffice to find a defendant legally sane. Rather, the defendant must have a deeper understand of its wrongfulness.  The MPC does not require complete inability to know or to choose. Instead, a person may be legally insane if his impairment is substantial. This requirement may require the fact finder to make a value judgment in light of the evidence.  The MPC is also criticized for providing too much room for experts to recognize new kinds of mental illness that can excuse individuals from criminal responsibility and second, that mental health experts cannot determine with reasonable accuracy an individual‟s capacity for selfcontrol or measure the extent of that impairment.  Model Penal Code § 4.03 – Mental Disease or Defect Is an Affirmative Defense  (1) Mental disease or defect excluding responsibility is an affirmative defense.  (2) Evidence of mental disease or defect excluding responsibility is not admissible unless the defendant, at the time of entering his plea of not guilty or within ten days thereafter or at such later time as the Court may for good cause permit, files a written notice of his purpose to rely on such defense.  (3) When the defendant is acquitted on the ground of mental disease or defect excluding responsibility, the verdict and the judgment shall so state.

 Subsection

(1) makes mental disease or defect excluding responsibility an affirmative defense. Under the Model Code this means that the prosecution need NOT disprove the defense until evidence supporting it is introduced, but, once such evidence is introduced, the prosecution must negative the existence of the defense beyond a reasonable doubt.

 The Federal Insanity Test – 18 U.S.C. § 17  (a) Affirmative Defense. It is an affirmative defense to a prosecution under any Federal statute that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.  (b) Burden of Proof. The defendant has the burden of proving the defense of insanity by clear and convincing evidence.
 The

federal test is arguably tougher than even the M‟Naghten test adopted over a century ago. The defendant must now suffer from a “severe” mental disease, established by clear and convincing evidence.  Like the MPC test, it uses the word “appreciate” rather than “know” which should render the test broader than M‟Naghten.  Like the M‟Naghten test, but unlike the MPC standard, cognitive incapacity must be total.
United States v. Lyons Facts: Defendant was convicted on numerous counts involving controlled narcotics. Defendant informed the prosecution that he intended to raise an insanity defense. Defendant proffered evidence that his involuntary addiction to prescribed narcotics affected his brain and consequently he lacked substantial capacity to conform his conduct to the requirements of the law. The trial court excluded any evidence of defendant's addiction, holding that an addiction did not constitute a mental disease or defect. Holding: The court appeals reversed, holding that it was the jury's duty to decide whether involuntary drug addiction constituted a mental disease or defect. On en banc rehearing, the court ruled that addiction alone was insufficient to support insanity defense, and overruled United States v. Bass, insofar as it may be read to hold that mere drug addiction, voluntary or involuntary, can be a mental disease for legal purposes. Reasoning: The volitional prong of the insanity defense – a lack of capacity to conform one's conduct to the requirements of the law – does not comport with current medical and scientific knowledge, which has retreated from its earlier, sanguine expectations. Consequently, the court now holds that a person is not responsible for criminal conduct on the grounds of insanity only if at the time of that conduct, as a result of a mental disease or defect, he is unable to appreciate the wrongfulness of that conduct.

58

59
 REJECTS 2nd Prong of MPC Test!  Court explains that most psychotic persons who fail a volitional test would also fail a cognitive test,  Court stated, “we see no prudent course for the law to follow but to treat all criminal impulses –
including those not resisted – as resistible. thus rendering the volitional test superfluous for them.

GROUP CRIMINALITY A. Complicity  Accomplice Liability In General  There are two general ways of helping someone commit a crime: (i) Physical aid; the defendant can physically help another person commit a crime, perhaps by furnishing materials, serving as a lookout or driving the getaway car; (ii) Psychological aid; the defendant can encourage or reinforce the primary actor‟s decision to commit a crime.  Note that it is a form of group criminality; it necessarily involves at least two individuals – a primary actor and a secondary actor or accomplice.  Although the accomplice is held accountable because of his own voluntary act and mens rea, his guilt is based on the commission of a crime by the primary actor; thus, the accomplice‟s guilt is derivative. Conversely, if the primary actor doesn‟t commit a crime, the accomplice cannot be convicted at common law because of there is an absence of a “guilty principal.”  Accomplice liability differs from the law‟s general approach to human causation. Accomplice liability does look beyond the last responsible human agent and makes others also responsible for the primary actor‟s conduct. This extended reach is justified because the accomplice, by his actions and his state of mind, has chosen to adopt the primary actor‟s criminal act as his own.  Being an accomplice is not a separate crime – it is another way of committing a crime (i.e., if you are an accomplice to murder, you are guilty of murder). The only exception is the separate crime of accessory after the fact to murder in some jurisdictions.  Accomplice liability still requires proof of mens rea and actus reus.  Mens Rea. A person is an accomplice in the commission of an offense if he has: (i) the intent to assist the primary party to engage in the conduct that forms the basis of the offense; and (ii) the mental state required from commission of the offense, as provided by the definition of the substantive offense. Frequently, the second mental statue may be inferred upon proof of the first.  Accomplice Liability Under the Common Law  The common law used fairly precise terms to describe individuals who could be responsible for crimes committed by others.  A Principal in the First-Degree (P-1) is the individual who (i) personally commits the crime or (ii) uses an innocent agent to commit a crime.  When someone uses an innocent agent to commit a crime, the law considers him a principal in the first-degree and not an accomplice.  An Innocent Agent is someone who (i) commits a criminal act but (ii) lacks capacity to commit a crime or the mens rea for the crime and (iii) is fooled or forced to commit the criminal act.  An innocent agent is usually a person but it can also be an animal or an inanimate object.  A Principal in the Second-Degree (P-2) is the individual who intentionally helps or encourages the principal in the first-degree to commit the crime and is actually present at the crime scene or is constructively present (i.e., close enough to assist P-1 if needed).  An Accessory Before the Fact (A-BTF) is someone who intentionally helps P-1 beforehand, perhaps by obtaining the murder weapon or by encouraging P-1 to commit the murder, but is not present or nearby when P-1 commits the crime.  An Accessory After the Fact (A-ATF) is someone who, though not part of the planning or commission of the crime committed by P-1, intentionally renders aid after the crime. An AATF obstructs justice by making it more difficult to apprehend and convict the others parties to the crime.

59

60
 At common law, husbands and wives could not be A-ATFs – because of the marital relationship, they were expected to aid each other and therefore had an excuse if they did.  Model Penal Code § 2.06 – Liability for Conduct of Another: Complicity  (1) A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both.  (2) A person is legally accountable for the conduct of another person when:  (a) Acting with the kind of culpability [mens rea] that is sufficient for the commission of the offense, he causes an innocent or irresponsible person to engage in such conduct; or  (b) He is made accountable for the conduct of such other person by the Code or by the law defining the offense; or  (c) He is an accomplice of such other person in the commission of the offense.  (3) A person is an accomplice of another person in the commission of an offense if:  (a) With the purpose of promoting or facilitating the commission of the offense, he (i) solicits such other person to commit it, or (ii) aids or agrees or attempts to aid such other person in planning or committing it, or (iii) having a legal duty to prevent the commission of the offense, fails to make proper effort so to do; or  (b) His conduct is expressly declared by law to establish his complicity.  (4) When causing a particular result is an element of an offense, an accomplice in the conduct causing such result is an accomplice in the commission of that offense if he acts with the kind of culpability [mens rea], if any, with respect to that result that is sufficient for the commission of the offense.  (5) A person who is legally incapable of committing a particular offense himself may be guilty thereof if it is committed by the conduct of another person for which he is legally accountable, unless such liability is inconsistent with the purpose of the provision establishing his incapacity.  (6) Unless otherwise provided by the Code or by the law defining the offense, a person is not an accomplice in an offense committed by another person if:  (a) He is a victim of that offense; or  (b) The offense is so defined that his conduct is inevitably incident to its commission; or  (c) He terminates his complicity prior to the commission of the offense and (i) wholly deprives it of effectiveness in the commission of the offense; or (ii) gives timely warning to the law enforcement authorities or otherwise makes proper effort to prevent the commission of the offense.  (7) An accomplice may be convicted on proof of the commission of the offense and of his complicity therein, though the person claimed to have committed the offense has not been prosecuted or convicted or has been convicted of a different offense or degree of offense or has an immunity to prosecution or conviction or has been acquitted.
 Subsection

(3) does not mean that the precise means used in the commission of the crime must have been fixed or contemplated or, when they have been, that liability is limited to their employment. One who solicits an end, or aids or agrees to aid in its achievement, is an accomplice in whatever means may be employed, insofar as they constitute an offense fairly envisaged in the purposes of the association. But when a wholly different crime has been committed, thus involving conduct not within the conscious objectives of the accomplice, he is not liable for it [rejects the natural and probably consequences doctrine]. Whatever may have been the law on point…it is submitted that the liability of an accomplice ought not to be extended beyond the purposes he shares.

 Model Penal Code § 242.3 – Hindering Apprehension or Prosecution [A-ATF]  A person commits an offense if, with purpose to hinder the apprehension, prosecution, conviction or punishment of another for crime, he:


60

61
 (1) Harbors or conceals the other; or  (2) Provides or aids in providing a weapon, transportation, disguise or other means of avoiding apprehension or effecting escape; or  (3) Conceals or destroys evidence of the crime, or tampers with a witness, informant, document or other source of information, regardless of its admissibility in evidence; or  (4) Warns the other of impending discovery or apprehension, except that this paragraph does not apply to a warning given in connection with an effort to bring another into compliance with law; or  (5) Volunteers false information to a law enforcement officer.  The offense is a felony of the third degree if the conduct which the actor knows has been charged or is liable to be charged against the person aided would constitute a felony of the first or second degree. Otherwise it is a misdemeanor  The Mens Rea of the Crime Aided  The Common Law  An accomplice must act with at least the same mens rea or culpability required for conviction of the offense committed by the principal. If the object offense requires specific intent, the accomplice must act with that same intent. If the object crime requires only recklessness or negligence as to result, it if sufficient if the accomplice acts with the same mens rea toward result as is required by the object offense.  The Model Penal Code  The MPC would also require that the accomplice act with at least the same culpability of mens rea of the crime being aided.  The Mens Rea to Be an Accomplice: Purpose or Intent to Aid the Principal‟s Criminal Action  The Common Law  An accomplice must want to help someone else commit a crime.  Conduct. Most jurisdictions require the accomplice to act with the purpose or intent to encourage or assist the conduct element of a crime. Requiring the high level of mens rea or culpability for conduct makes sense because, the actus reus of accomplice liability can be quite minimal; one does not have to provide very much help to become an accomplice.  Recklessness or Negligence as to Result. The general rule is that the accomplice must act with the same mens rea toward result as is required to convict the principal of the object crime.  Strict Liability. Though it works in theory, most courts find the reach of strict liability through the doctrine of complicity to be unfair.  The Model Penal Code  To be an accomplice, the actor must act with the “purpose of promoting or facilitating the commission of an offense” [under § 2.06 (3)(a)].  Conduct. The accomplice must have as his purpose that the principal will engage in the conduct elements of the object crime. Knowledge as to the principal‟s conduct is an insufficient basis for responsibility under the MPC.  Circumstances. The commentaries indicate to let the courts decide whether purpose as to circumstances is required for conviction or simple the same culpability or mens rea toward circumstances as is required for the object crime. Courts that demand purpose as to circumstances may require a higher culpability for the accomplice than might be required for the principal.  Result. The MPC requires the same culpability or mens rea toward result as would be required for conviction of the principal for the object offense [under § 2.06 (4)].  Knowledge That Another Intends to Commit a Crime. In contrast to the common law, many courts take the MPC approach and require purpose or intent rather than knowledge for accomplice liability.  Commentators‟ suggestions for dealing with the MPC‟s struggle with the mens rea for complicity have included requiring mens rea of purpose or knowledge for all accomplices (as in first draft of MPC); requiring substantial aid rather than minor aid

61

62
(also in the first draft of MPC); linking mens rea to the seriousness of crime (U.S. v. Fountain: J. Posner said knowledge was enough if crime was extremely serious - in this case, murder); or linking mens rea to the seriousness of punishment (Material Support to Terrorism and the NY crime of Facilitation provide less serious punishment for providing any support).
Hicks v. United States Facts: Two American Indians, Hicks and Rowe, were indicted for the murder of a white man, Colvard. Rowe shot Colvard in the presence of Hicks, and there was some evidence that Hicks‟s words and actions might have encouraged Rowe to shoot. Hicks was found guilty. Holding: The Supreme Court reversed, holding that two of the trial judge‟s jury instructions were erroneous. First, the judge should have instructed the jury that in order to be guilty, Hicks must have intended his acts or words to encourage Rowe to commit the murder, not just that he intended to say those words and then they actually did encourage Rowe. Second, the judge should not have instructed the jury that Hicks could be found guilty if he had initially planned to assist with the murder but then decided it wasn‟t necessary, because there was no evidence of a conspiracy. Reasoning: A defendant is not responsible for the independent actions of another unless he had the purpose AND effect of encouraging that other to commit a crime. His intent to utter words and the effect of those words isn‟t sufficient – intended effect of words is what matters, as well as actual effect.

 Providers of Goods and Services  The Common Law  Most jurisdictions permit conviction only if the prosecutor can prove that the defendant acted with a purpose to aid. The prosecutor has to demonstrate that the defendant had “a stake in the venture.”  The MPC also requires the prosecution to prove that the actor had the “purpose of promoting or facilitating” the commission of the crime [under § 2.06 (3)].  Model Penal Code § 5.01 (3) – Conduct Designed to Aid Another in Commission of Crime  A person who engages in conduct designed to aid another to commit a crime that would establish his complicity under § 2.06 if the crime were committed by such other person, is guilty of an attempt to commit the crime, although the crime is not committed or attempted by such other person.
State v. Gladstone Facts: Gladstone was found guilty of aiding and abetting Kent in the sale of marijuana. Gladstone had directed Thompson to Kent‟s house and told him that he would sell to him. Holding: The court reversed. All Gladstone had really done was predict that Kent would be willing to commit a crime, so it is not clear that he had the specific intent to aid Kent in selling marijuana. Reasoning: The court said that a vital element was missing: a nexus between the accused and the party he is charged with aiding. However, this is not the real issue, because it is certainly possible to aid and have the purpose to aid without actual communication between the principal and the accomplice, as in a bar fight where an otherwise uninvolved party locks the door so the victim can‟t run out.  “There is no aiding and abetting unless one in some sort of associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed. All the words used – even the most colorless, „abet‟ – carry an implication of purposive attitude towards it.”  Although the word "aid" does not imply guilty knowledge or felonious intent, the word "abet" includes knowledge of the wrongful purpose of the perpetrator, as well as counsel and encouragement in the crime. To abet another in the commission of a crime implies a consciousness of guilt in instigating, encouraging, promoting or aiding in the commission of such criminal offense.

 Liability for Unintended Crimes Committed by the Principal  The Common Law  A number of cases have expanded an accomplice‟s liability to include acts that the accomplice should have “reasonably foreseen” or that were a “natural and probable consequence” of the offense that the accomplice intended to aid.  More recently, courts have supported an even broader extension of accomplice liability to include crimes committed by the principal that the accomplice has “naturally, probably and foreseeably put in motion.”

62

63
 More than half the jurisdictions follow this rule.  The Model Penal Code  The MPC does not permit responsibility to be imposed on an accomplice because of negligence toward unanticipated crimes committed by the principal. Thus, the accomplice cannot be convicted of crimes that were the natural and probable consequence of the crime that the accomplice did intend to assist. Instead, the MPC‟s culpability requirements for conduct and result elements must be met.
People v. Luparello Facts: Defendant wanted to locate a woman who had left him, and enlisted some friends to help him find her, saying he wanted to get info about her whereabouts from Martin at any cost. The friends ended up shooting Martin and the defendant was convicted of murder. Holding: The court affirmed, holding that an actor is guilty of any reasonably foreseeable offense that follows from the earlier completed offense he/she aided and abetted. Concurrence: Said that he concurred in the judgment but lamented the application of the “foreseeable consequence” test – said that just because something is foreseeable doesn‟t mean that the defendant had the same intent as the actual murderer and that therefore he should not be held to the same standard for his own negligence (in essence) rather than the murderer‟s specific intent.  “This and the felony murder rule are based on the same outmoded and logically indefensible proposition that if a person exhibits some intent to violate the law,” that it doesn‟t matter that the crime that took place was far more serious than the crime intended/foreseen. Roy v. United States Facts: Defendant agreed to sell a gun to an undercover police informant. Defendant directed him to an associate named Ross, who completed the sale but then changed his mind and robbed the informant. Defendant was convicted as an accomplice to Ross‟s armed robbery. Holding: The court reversed, finding the evidence insufficient to support a conviction on the “natural and probable consequences” theory. He did not intend a crime of violence to be committed, only the misdemeanor of illegally selling a gun, a crime of which he was separately convicted. Reasoning: An accessory is liable for any criminal act, which in the ordinary course of things was the natural and probable consequence of the crime that he advised or commanded, although such consequence may not have been intended by him. A natural consequence is one, which is within the normal range of outcomes that may be expected to occur if nothing unusual has intervened. It is not enough for the prosecution to show that the accomplice knew or should have known that the principal might conceivably commit the offense, which the accomplice is charged with aiding and abetting. A natural and probable consequence in the ordinary course of things presupposes an outcome within a reasonably predictable range.

 How Much Aid Is Enough?  The Common Law  Any aid! Note that it is not necessary for the principal to know that the accomplice is assisting him before the accomplice can be found guilt of accessorial responsibility. However, when the offered assistance will have no impact on the principal‟s commission of the crime, as long as the aid is completely ineffective or the principal does not know that any encouragement is being given, most courts will probably not find liability.  The Model Penal Code  The MPC takes a broader approach. It considers any effort at aiding, even if ineffective or unknown to the principal, as satisfying the actus reus requirement of accessorial liability.
Wilcox v. Jeffery Facts: An American musician named Hawkins was in England. His visa did not allow him to work in England , but he held a concert anyway. At the concert was the defendant who published a jazz magazine. Defendant paid for a ticket, applauded Hawkins playing, and published a review. Defendant was arrested and charged with aiding and abetting Hawkins' crime. Defendant was not responsible for bringing Hawkins to England, and didn't set up the concert. The trial court convicted the defendant and he appealed. Holding: The appellate court upheld the conviction. The court found that the defendant knew that the concert was illegal, and supported the concert with his attendance. In addition, the defendant materially benefited from the concert because he used the review to sell magazines. Therefore he aided and abetted Hawkins' crime. The Court noted that if the defendant had attended the concert to boo and tell Hawkins to get off the stage, then that would not be aiding and abetting.

63

64
State ex rel. Attorney General v. Tally Facts: Defendant knew that a group of men were riding off to catch up with a man in a nearby town to kill him for offending their sister. The man‟s relatives sent him a telegram to watch out for the strangers. The defendant sent a message to the telegram operator to not deliver the relatives‟ warning. The man was killed and the defendant was charged with aiding and abetting the murder. Holding: The court found him guilty of the charge of aiding and abetting the murder, as when he had full knowledge of their intentions, he kept a watch and sent a message preventing a warning from reaching the victim. The court held that one could be guilty of murder by aiding and abetting if his actions prevented the deceased from exercising one final chance at survival, even though it was likely that the result would have been the same without his actions. He was constructively present, and thus guilty. Reasoning: Assistance given need not contribute to the criminal result in the sense that but for it the result would not have ensued. It is quite sufficient if it facilitated a result that would have transpired without it. It is quite enough if the aid merely renders it easier for the principal actor to accomplish the end intended by him and the aider and abettor, though in all human probability the end would have been attained without it. If the aid in homicide put the deceased at a disadvantage, to have deprived him of a single chance of life, which but for it he would have had, he who furnishes such aid is guilty though it can not be known or shown that the dead man, in the absence thereof, would have availed himself of that chance. One who counsels murder is guilty as an accessory before the fact, though it appears probable that murder would have been done without his counsel. One being present by concert to aid if necessary is guilty as a principal in the second degree, though had he been absent murder would have been committed. He who facilitates murder, even by so much as destroying a single chance of life the assailed might otherwise have had, is guilty as principal in the second degree at common law, and is principal in the first degree, notwithstanding that in all human probability the chance would not have been availed of, and death would have resulted anyway.

 Legal Incapacity to Commit Substantive Crime  The Common Law  Occasionally, only an individual with certain attributes can commit a crime. For example, under the common law a husband could not rape his wife, but he could be guilty of raping his wife if he acted as an accomplice. Thus, while he could not be held liable as a principal, he can be held criminally liable as an accomplice.  The Model Penal Code  The MPC follows the common law approach. Under § 2.06 (5) a defendant who was himself legally incapable of committing a particular crime may become an accomplice if he helps someone who is legally capable of committing the offense.  Relationship Between Principal and Accessories  The Common Law  Requirement of a Guilty Principal. At common law the acquittal of the principal, for whatever reason, precluded the conviction of an individual as a principal in the seconddegree or as an accomplice.  The Pretending Principal. An accomplice cannot be convicted if the principal does not have the mens rea necessary for conviction.  Differences in Degree of Culpability. At common law, the accomplice was convicted of the same offense as the principal unless the crime was homicide. Some jurisdictions have changed the common law approach and permit the accomplice to be convicted of a more serious offense than that of the principal. This approach allows the law to assess the moral culpability of each party according to his or her individual mens rea.  Withdrawal of Aid. At common law, an accomplice can avoid criminal responsibility if he withdraws his aid before the principal commits the offense. The accomplice must (i) inform the principal not to commit the offense and (ii) do everything possible to render ineffective any aid he has already given.  The Model Penal Code  Requirement of a Guilty Principal. The MPC seemingly does not require the conviction of the principal for the accomplice to be guilty, provided that the principal has engaged in the conduct required by the commission of the object crime or by an attempt to commit it. This is true regardless of the basis of the principal‟s acquittal.  Differences in Degree of Culpability. Under the MPC an accomplice is graded based on the conduct committed by the principal and the culpability of the accomplice. Thus, the MPC readily allows differential punishment for the principal and the accomplice.

64

65
State v. McVay Facts: The boiler on a boat exploded, killing many on board. Three indictments for manslaughter, each containing four counts, were brought against the captain and engineer as principals and against defendant as an accessory before the fact. Defendant argued that there could be no accessory before the fact in manslaughter that arose from an allegation of criminal negligence. Holding: The court disagreed. The court stated that although there could have been no accessory before the fact when a killing resulted from a sudden and unpremeditated blow, it did not think it could be broadly stated that premeditation was inconsistent with every charge of manslaughter. Manslaughter could consist, among other things, of doing an unlawful act resulting in unintentional killing. The court found that manslaughter was likewise committed if an unintentional killing is occasioned by gross negligence in the doing of an act lawful in itself. The court held that there was no inherent reason why, prior to the commission of such a crime, one could not aid, abet, counsel, command or procure the doing of the unlawful act or of the lawful act in a negligent manner. Reasoning: While everyone must agree that there can be no accessory before the fact when a killing results from a sudden and unpremeditated blow, the court does not think it can be broadly stated that premeditation is inconsistent with every charge of manslaughter. Manslaughter may consist, among other things, of doing an unlawful act resulting in unintentional killing, such as violation of motor vehicle laws or administration of drugs to procure an abortion. Manslaughter is likewise committed if an unintentional killing is occasioned by gross negligence in the doing of an act lawful in itself. There is no inherent reason why, prior to the commission of such a crime, one may not aid, abet, counsel, command or procure the doing of the unlawful act or of the lawful act in a negligent manner. A premeditated act may be involved in such unlawful homicides. At common law there may be accessories before the fact to involuntary manslaughter. Manslaughter does not commonly admit of an accessory before the fact, because when the killing is of previous malice, it is murder. This is the ordinary doctrine yet probably there may be a manslaughter wherein this is not so, as, if one should order a servant to do a thing endangering life yet not so directly as to make a death from the doing murder, it might be manslaughter then, why should not the master be an accessory before the fact in the homicide? People v. Russell Facts: Defendants were charged with second-degree murder in the death of a bystander who was struck by a bullet fired during a gun battle between defendants. Defendants challenged the sufficiency of the evidence, arguing that each did not possess the necessary intent for a murder conviction. Holding: The court ruled that the defendants' actions in participating in an inherently dangerous activity, with knowledge that their actions would endanger others, was sufficient to establish each defendant's guilt under the crime alleged. Defendants' self-defense claims were rejected because each defendant could have avoided further harm during the gun battle by retreating. Reasoning: The evidence adduced at trial was sufficient for the jury to determine that all three defendants acted with the mental culpability required for depraved indifference murder, and that they intentionally aided and encouraged each other to create the lethal crossfire that caused the death of the bystander. State v. Hayes Facts: Defendant unknowingly approached a shop owner's stepson and suggested they steal from the shop. The shop owner's stepson advised the local authorities of the plan, and when they broke into the shop the shop owner's stepson actually entered the shop after breaking a window latch and handed defendant some merchandise, and the authorities who were laying in wait arrested defendant. Defendant was convicted for burglary and larceny and appealed. Holding: The court reversed and held that the jury should have been instructed that if the stepson had entered into the shop without criminal intent the defendant could not be guilty of burglary and grand larceny because defendant could not be guilty of aiding and abetting the offenses if the stepson did not have criminal intent when he performed the act. Reasoning: Where each of the overt acts going to make up the crime charged is personally done by the defendant, and with criminal intent, his guilt is complete, no matter what motives may prompt, or what acts done by the party who is with him, and apparently assisting him. When some act essential to the crime charged is in fact done by the detective, and not by the defendant; and, this act not being imputable to the defendant, the latter's guilt is not made out. The intent and act must combine; and all the elements of the act must exist and be imputable to the defendant. Vaden v. State Facts: Fish and Wildlife Protection officers received a tip that the defendant, a local guide, was promoting illegal hunting practices by his customers. The agency assigned an undercover officer to pose as a hunter and commission the defendant‟s services. On the trip, the defendant piloted the aircraft and maneuvered it to facilitate the undercover officer‟s shooting game from the plane with a shotgun that the defendant had lent him. The defendant was convicted, as the undercover officer‟s accomplice, is violating the Alaskan hunting laws. The defendant appealed and argued that the charges in the cases should have been dismissed because the undercover government agents who hired them as guides also engaged in illegal hunting and fishing activity but were protected by quasi-governmental immunity; thus no real violation of law.

65

66
Holding: The Supreme Court of Alaska affirmed the conviction. Reasoning: Alaska Stat. § 11.16.120 provides: In a prosecution for an offense in which legal accountability is based on the conduct of another person; (2) it is not a defense that (A) the other person has not been prosecuted for or convicted of an offense based upon the conduct in question or has been convicted of a different offense or degree of offense; (B) the offense, as defined, can be committed only by a particular class of persons to which the defendant does not belong, and the defendant is for that reason legally incapable of committing the offense in an individual capacity; or (C) the other person is not guilty of the offense. A justification defense is personal to the undercover agent and not transferable to the accomplice. A principal does not need to be found guilty or even prosecuted in order to convict the accomplice. It is the abettor's state of mind rather than the state of mind of the perpetrator, which determines the abettor's guilt or innocence. Because the accomplice's state of mind is the focus, defenses of entrapment, duress, and heat of passion are not imputed to the accomplice. Common Law Defense unavailable – you‟re guilty as an accomplice. No accomplice liability. No accomplice liability – you must have encouraged or actually helped. MPC Renounce your involvement and (1) deprive your fellow actors of effectiveness or (2) give timely warning to law enforcement. You‟re guilty of attempt. You‟re guilty as an accomplice.

Renunciation

No Complete Crime Unsuccessful Attempt to Aid / Abet

B. Conspiracy Under the Common Law  Defining a Conspiracy  A common law conspiracy is an agreement be two or more persons to commit a criminal act or a series of criminal acts, or to accomplish a legal act by unlawful means.  Criticisms of the definition include: (i) so vague that it defies definition [acts against public policy]; (ii) a person may be convicted of an offense well before she commits any act in perpetration of a substantive crime; and (iii) the crime is always predominantly mental in composition because it consists primarily of a meeting of minds and an intent.  Punishment and Grading  A common law conspiracy, like attempt, merged into the completed substantive offense. Conspirators could not be punished for both conspiracy and the target offense.  Today, in most jurisdictions conspiracy is a separate offense and does not merge with the object crime.  Conspirators can be (i) convicted of both the crime of conspiracy and of the target crimes actually committed in furtherance of the conspiracy and (ii) sentenced to consecutive sentences for both conspiracy and the target offense.  Joint Trials and the Use of Hearsay Evidence  Because all members of a conspiracy are considered to have committed the same crime, coconspirators may be tried together in a single trial.  Under the law of conspiracy, each co-conspirator is deemed to have authorized other members of the conspiracy to act and speak on his behalf.  The jury may hear hearsay evidence in determining whether a conspiracy existed.  Responsibility for Crimes Committed by Co-Conspirators  Under the “Pinkerton Rule,” each co-conspirator is responsible for (i) any reasonably foreseeable crime committed by a co-conspirator (ii) in furtherance of the conspiracy.  Essentially establishes vicarious liability for every member of a conspiracy for all foreseeable crimes without requiring the government to establish accessorial liability.  Does not have to prove that the defendant intended to aid and abet or otherwise facilitate or encourage the commission of these crimes; he only has to prove that they were foreseeable.

66

67
 Under the Pinkerton Rule, each conspirator, by entering into a conspiratorial agreement, authorizes other members of the conspiracy to act as his agent to commit crimes necessary to implement their criminal objective.  Establishes vicarious liability based on negligence; the lowest level of culpability.  Pinkerton Rule imposes criminal liability on co-conspiratos for contingent crimes to which they did not agree but which, under the circumstances, might well be necessary.  However, the rule is not retroactive. A person who joins a conspiracy is not responsible for crimes already committed by co-conspirators.
Pinkerton v. United States Facts: Two brothers, Walter and Daniel Pinkerton, were indicted for ten substantive counts and one conspiracy count. The jury found both guilty of conspiracy, Walter guilty on nine of the substantive counts, and Daniel guilty on six of the substantive counts. There was no evidence that Daniel participated directly in the commission of the substantive offenses (Daniel was in prison); there was only evidence showing that he had generally agreed to participate with Walter in the activity. Holding: Supreme Court affirmed, holding that an overt act committed by any conspirator may be attributed to a co-conspirator in order to hold him/her liable for the substantive crime, as long as it was reasonably foreseeable and in furtherance of the conspiracy.  Pinkerton (in its modern form) says that if you‟re a conspirator, and your co-conspirator commits any crime that‟s reasonably foreseeable and in furtherance of the conspiratorial goals, you‟re liable for the substantive crime. State v. Bridges Facts: Bridges brought two acquaintances, Bing and Rolle to a party, anticipating a fight. A fight ensued, and Bing and Rolle fired guns, fatally wounded one person. Bridges was convicted of murder. Holding: The court held that Bridges was liable for murder under Pinkerton liability. It held that a coconspirator may be liable for the commission of substantive crimes that were not within the scope of the conspiracy if they were reasonably foreseeable as natural consequences of the conspiracy. In this case, since Bridges knew that Bing and Rolle were carrying guns, it was reasonably foreseeable that one of them would fire at somebody.  Bridges modified Pinkerton liability, removing the requirement that the criminal act fall within the scope of the conspiracy. The Bridges version of Pinkerton liability is the one most commonly used. United States v. Alvarez Facts: During a drug buy at which two undercover ATF agents were present, one of the agents was killed and the other wounded. The two dealers who shot agents were convicted of first-degree murder, while three other dealers were convicted of second-degree murder, although they did not participate in the shooting. Holding: The court upheld the convictions, finding that murder was reasonably foreseeable – based on the large quantity of drugs and money involved, the defendants must have known that some of the dealers were carrying weapons and willing to use deadly force. The court also found that they were not “minor” participants in the conspiracy. Notes: In a footnote, the court made it clear that its extension of Pinkerton liability to reasonably foreseeable crimes was only applicable to conspirators who played more than “minor” roles, or those who had actual knowledge of at least some of the circumstances and events culminating in the reasonably foreseeable crime.  Because both (2) and (3) have been relaxed, Alvarez would exempt minor participants from Pinkerton liability.

 Duration and Extending the Life of a Conspiracy  A conspiracy usually terminates when all of its objectives have been achieved or when all of its members have abandoned all of its objectives.  Case law permits the government to use hearsay testimony made after the normal end of a conspiracy only if it can prove an express agreement to conceal the conspiracy or if it can show that ongoing concealment was essential to the conspiracy‟s success.
Krulewitch v. United States Facts: Federal prosecutors charged two defendants with conspiracy to violate and with completed violations of a law prohibiting interstate transportation for prostitution. The government argued that the conspiracy continued after the commission of the violations, for the purpose of concealing evidence, in order to gain the procedural advantages of conspiracy.

67

68
Holding: The Supreme Court rejected the government‟s theory of an implied, on-going conspiracy. As Jackson pointed out in his concurrence, “the assumption of an indefinitely continuing offense would result in an indeterminate extension of the statute of limitations.” Reasoning: Jackson‟s concurrence identified several other concerns about conspiracy law, including the vague definition of conspiracy; that conspirators may be punished for contemplating acts that wouldn‟t even be crimes if not committed as the object of a conspiracy; that conspirators may be tried in jurisdictions they‟ve never set foot in, if another conspirator did any act in furtherance of their objective there; and that the difficulty of separating evidence of acts from evidence of conspiracy means that “a conspiracy often is proved by evidence that is admissible only upon assumption that conspiracy existed.”

 The Mens Rea of Conspiracy  Under the common law, conspiracy is a “specific intent” crime. First, the defendant must intend to agree with someone else. Second, the defendant must intend to commit the offense [and all its elements] that is the object of the conspiracy.  Act and Result. Because conspiracy is a specific intent crime, it can require a higher mens rea than the crime the parties agree to commit.  Circumstances. The Supreme Court has held that under the federal conspiracy statute, the prosectur is only required to establish the same mens rea toward a circumstance element as that required for conviction of the substantive crime.  The Actus Reus of Conspiracy  At common law, the actus reus was an agreement between two or more parties to commit a criminal or unlawful act or a lawful act by unlawful means.  An “overt act” in furtherance of the conspiracy was not required.  What is required is a shared determination to accomplish a goal that is punished by the applicable conspiracy statute; the parties do not have to know all of its details, but they do have to know its basic purpose.  Overt Act. Most modern statutes also required that one member of the conspiracy commit an overt act in furtherance of the conspiracy for the crime to be committed. The overt act demonstrates that the conspiracy has gone beyond the merely mental state and has reached the implementation stage. Also, the overt act does not in itself have to be unlawful.  In general there must be “on the part of each conspirator communication with a mind and will outside herself.”  Conspiratorial agreement may be established directly or through entirely circumstantial evidence.  A conspiracy may be inferred from a development and a collocation of circumstances.
Interstate Circuit, Inc. v. United States Facts: Conspiracy of eight film directors to violate the Sherman Anti-trust Act. There was a lack of evidence of the agreement – but there was some evidence from which inferences could be drawn. Holding: The court held that a conspiracy may exist if there is no communication and no express agreement, provided that there is a tacit agreement reached without communication. Reasoning: The essence of conspiracy is the agreement – the union of wills – and not the group of conspirators. In order to aid and abet a conspiracy, therefore, defendant must intentionally aid and abet the formation of the agreement, rather than aid the parties after the latter have formed the conspiratorial arrangement. Mulcahy v. The Queen Facts: The court rejected the argument that an indictment was defective for failing to charge some overt act: “when two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or the use of criminal means. Notes: American conspiracy statues have typically added an overt-act requirement (although not unusual for statutes to dispense with this requirement in the case of conspiracies to commit the most serious offenses. Yates v. United States Holding: The function of the overt act in a conspiracy prosecution is simply to manifest that the conspiracy is at work … and is neither a project sill resting solely in the minds of neither the conspirators nor a fully completed operation no longer in existence.

68

69
 Wharton‟s Rule  Wharton‟s rules says that conspiracy cannot be used to criminalize an agreement that is a logically required component of the substantive offense.  The Crimmin‟s Doctrine  In an opinion written by Judge Learned Hand, the Second Circuit reversed a conviction for conspiracy to transport stolen securities in interstate commerce because the government had failed to prove that the defendant knew the bonds had moved across state lines.  To justify his holding, Just Hand used the now famous traffic light analogy; he argued that although a defendant can be convicted of running a traffic light he was unaware of, he cannot be found guilty of conspiring to run a traffic light if he did not know there was a traffic light in the first instance.  Judge Hand‟s analogy assumes that knowledge of material facts is essential to an agreement to engage in conduct that includes those facts.  Although the Supreme Court has not explicitly rejected the traffic light analogy, it has indicated that “as long as the parties agree to engage in conduct that constitutes a malum in se crime, the government can convict them of violating the federal conspiracy statute even when they did not know the facts that would sustain a federal law enforcement interest.  Abandonment and Withdrawal  Under the common law, the defense of abandonment to a conspiracy is not allowed. The crime of conspiracy is complete with the agreement and no subsequent act can exonerate the actors.  The defense of withdrawal is available in some jurisdictions. Giving reasonably adequate notice to all co-conspirators that one no longer intends to take part in the criminal plan in time for the other conspirators to abandon the conspiracy is usually sufficient to establish withdrawal. C. Conspiracy Under the Model Penal Code  Defining a Conspiracy  Under the MPC, the object of agreement must be a crime for a conspiracy to be committed.  Model Penal Code § 5.03 – Criminal Conspiracy  (1) Definition of Conspiracy. A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he:
  (a) Agrees with such other person or persons that they or one or more of them will engage in conduct that constitutes such crime or an attempt or solicitation to commit such crime;  (b) Agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.  (2) Scope of Conspiratorial Relationship. If a person guilty of conspiracy, as defined by Subsection (1) of this Section, knows that a person with whom he conspires to commit a crime has conspired with another person or persons to commit the same crime, he is guilty of conspiring with such other person or persons, whether or not he knows their identity, to commit such crime.  (3) Conspiracy with Multiple Criminal Objectives. If a person conspires to commit a number of crimes, he is guilty of only one conspiracy so long as such multiple crimes are the object of the same agreement or continuous conspiratorial relationship.  (4) Joinder and Venue in Conspiracy Prosecutions.
  (a) Subject to the provisions of paragraph (b) of this Subsection, two or more persons charged with criminal conspiracy may be prosecuted jointly if: (i) they are charged with conspiring with one another; or (ii) the conspiracies alleged, whether they have the same or different parties, are so related that they constitute different aspects of a scheme of organized criminal conduct.  (b) In any joint prosecution under paragraph (a) of this Subsection: (i) no defendant shall be charged with a conspiracy in any county [parish or district] other than one in which he

69

70
entered into such conspiracy or in which an overt act pursuant to such conspiracy was done by him or by a person with whom he conspired; and (ii) neither the liability of any defendant nor the admissibility against him of evidence of acts or declarations of another shall be enlarged by such joinder; and (iii) the Court shall order a severance or take a special verdict as to any defendant who so requests, if it deems it necessary or appropriate to promote the fair determination of his guilt or innocence, and shall take any other proper measures to protect the fairness of the trial.  (5) Overt Act. No person may be convicted of conspiracy to commit a crime, other than a felony of the first or second degree, unless an overt act in pursuance of such conspiracy is alleged and proved to have been done by him or by a person with whom he conspired.
 
 
  (6) Renunciation of Criminal Purpose. It is an affirmative defense that the actor, after conspiring to commit a crime, thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.  (7) Duration of Conspiracy. For purposes of § 1.06(4):
  (a) Conspiracy is a continuing course of conduct that terminates when the crime or crimes that are its object are committed or the agreement that they be committed is abandoned by the defendant and by those with whom he conspired; and  (b) Such abandonment is presumed if neither the defendant nor anyone with whom he conspired does any overt act in pursuance of the conspiracy during the applicable period of limitation; and  (c) If an individual abandons the agreement, the conspiracy is terminated as to him only if and when he advises those with whom he conspired of his abandonment or he informs the law enforcement authorities of the existence of the conspiracy and of his participation therein.
 Subsection

(1) explains that guilt as a conspirator is measured by the situation as the actor views it; he must have the purpose of promoting or facilitating a criminal offense, and with that purpose must agree (or believe that he is agreeing) with another that they will engage in the criminal offense or in solicitation to commit it. It also is sufficient if the agreement is to aid another in the planning or commission of the offense, or of an attempt or solicitation to commit it. The purpose requirement is meant to extend to result and conduct elements of the offense that is the object of the conspiracy, but whether or how far it also extends to circumstance elements of that offense is meant to be left open to interpretation by the courts. The mens rea does not include, however, a corrupt motive or an awareness of the illegality of the criminal objective.

 Model Penal Code § 5.04 – Incapacity, Irresponsibility or Immunity  (1) Except as provided in Subsection (2) of this Section, it is immaterial to the liability of a person who

solicits or conspires with another to commit a crime that:  (a) He or the person whom he solicits or with whom he conspires does not occupy a particular position or have a particular characteristic that is an element of such crime, if he believes that one of them does; or  (b) The person whom he solicits or with whom he conspires is irresponsible or has an immunity to prosecution or conviction for the commission of the crime.  (2) It is a defense to a charge of solicitation or conspiracy to commit a crime that if the criminal object were achieved, the actor would not be guilty of a crime under the law defining the offense or as an accomplice under Section 2.06(5) or 2.06(6)(a) or (6)(b).

 Model Penal Code § 5.05 – Grading; Solicitation and Conspiracy  (1) Grading. Except as otherwise provided in this Section, attempt, solicitation and conspiracy are crimes
of the same grade and degree as the most serious offense that is attempted or solicited or is an object of the conspiracy. An attempt, solicitation or conspiracy to commit a [capital crime or a] felony of the first degree is a felony of the second degree.  (2) Mitigation. If the particular conduct charged to constitute a criminal attempt, solicitation or conspiracy is so inherently unlikely to result or culminate in the commission of a crime that neither such conduct nor the actor presents a public danger warranting the grading of such offense under this Section, the Court

70

71
shall exercise its power under Section 6.12 to enter judgment and impose sentence for a crime of lower grade or degree or, in extreme cases, may dismiss the prosecution.  (3) Multiple Convictions. A person may not be convicted of more than one offense defined by this Article for conduct designed to commit or to culminate in the commission of the same crime.
 Subsection

(1) sets the punishment for conspiracy at the same grade and degree as the most serious object crime, except that a conspiracy to commit a capital offense or a felony of the first degree is punished as a felony of the second degree.  Note that the MPC does not permit conviction for both conspiracy and the target crime except in rare situations [under § 1.07 (1)(b)].  Also note that the MPC does not permit conviction for both conspiracy and an attempt to commit the target crime [under § 5.05 (3)].

 Responsibility for Crimes Committed by Co-Conspirators  The MPC rejects the Pinkerton rule because the scope of vicarious responsibility theoretically possible under this rule is too broad.  A co-conspirator must satisfy the MPC elements for accessorial liability set forth in § 2.06, which are more narrow than the common law.  This means that conspiracy by itself is not a basis for establishing complicity for all reasonably foreseeable substantive offenses committed in further of the conspiracy. Instead, the MPC asks, “where the defendant solicited commission of the particular offense or aided, or agreed or attempted to aid, in its commission.  Majority of states, including New York, following the MPC in rejecting the Pinkerton rule.  MPC Rejects Wharton‟s Rule  Instead, the MPC provides that a person who could not be convicted of the substantive offense or as an accomplice to the substantive offense may not be convicted of conspiracy to commit that offense [under § 5.04 (2)]. Under the MPC‟s unilateral approach to conspiracy, immunity for one defendant under the section does not prevent conviction of another coconspirator.

71


								
To top