Criminal Law Outline[2]

CRIMINAL LAW OUTLINE Formula * ACT (Concurrence) + MENTAL ACTIVITY + (Causation) Resulting Harm = Criminal Liability. What constitutes the act and mental activity is defined by statute in area of criminal law. Criminal law originated from judicial decisions in common law. Over time, it was replaced by codified law (by legislative). Model Penal Code - illustrates legislative's best attempt to bring together criminal law. I. A. * 2. 3. B. 1. 2. C. 1. 2. 3. D. 1. 2. 3. 4. Overview of Criminal Justice System Legislative: Functions: 1. Before you can have a crime it must be defined. Main Function of legislative is to provide a definition of a crime. CREATE PENAL LAW. Monitors criminal justice system - allocation of resources. Focal point for form and policy issues - ex: NY debate on capital punishment. Executive: Functions: Moves legislative forward and approves it once it is passed. Provides resources to implement legislation. Police: Functions: Enforcement of law. Power of arrest. People often view their role as one of a deterrent to prevent crime. Prosecutor: Functions: Selects a charge against the Defendant. Selects what gets presented to a grand jury - (Prosecutor is only one with privilege to make a presentation before grand jury - to decide the charge). Plea disposition - NY disposes of 90% of cases. Burden of Proof vests in the people. * INFLEXIBLE LAW - UNJUST Both must exercise discretion - not every illegal activity results in arrest - not every arrest results in full scale prosecution. Citizens vest right of discretion in Police and Prosecution. Defense: Functions: Protect rights of accused - secure opportunities. Right to have witnesses, cross examine them; present and establish case. 2. Accused begins with assumption of his innocence. E. 1. a. F. 1. a. b. Judiciary: Functions: Resolution - 2 modes Plea - must be approved by judiciary Trial - Sentencing Objectives: Penal Code ?1.05 - Prevention Deterrence Rehabilitation Public Protection -Judiciary attempts to achieve objectives of prevention and deterrence with idea of Retribution - person who deserves punishment will rightly get it. Prevents vigilante approaches. -Judiciary tries to achieve deterrence by looking for mechanisms that will impact on society at large - Educate society - make people aware of nature of crime. -Judiciary tries to rehabilitate through Indeterminant Sentencing - sentence people for a period of time to be defined later. This ties in with rehab because see how a person is progressing when deciding their sentence. c. Forms of Sentencing A. Incarceration B. Community Service C. Fine D. Restitution G. Press: Functions: 1. Vehicle for venting public and official views. 2. Vehicle for mounting campaigns to achieve certain policies. H. Public: Function: 1. Generate pressure to bring about a major change - tries to impact leg., exec. and law enforcement agencies. I. Lawyers, ABA: Functions: 1. Raises issues. 2. Helps system perform efficiently. II. A. ex: Internal Regulations In Process of Defining What Is Criminal * Structure of Statutes Legislative enactments should represent a rational basis/relationship between purpose and means sought to affect it. hypo on making it criminal for short people to be out after 6 p.m. because of a rash of crimes. This enactment is arbitrary and discriminatory - infringes on person's right to exercise basic rights. -Role of Prosecutor extended. -Never an obligation to infringe on people's rights. Prosecutor must uphold not only law, but also CONSTITUTION. -Use his discretion - can give warning - make a public ed. campaign etc. - Can challenge statute, limit enforcement or NOT take enforcement steps at all. its * * -Public Servant - represents all people - even accused. Must make sure rights of all parties are taken care of. B. -Legislative enactments must be fair. Must give fair warning that the activity done by Defendant would be illegal . Must be definite - not vague. -Statute must give direction, clarity and guidance as to what would constitute criminal activity. -Statute must define the offense - should have within structure some ascertainable standard of guilt. If legislative is infringing on a constitutionally protected area, need a compelling interest in State. Penal Code ?1.05(2) * Fairness = Warning + Ascertainable Standard of Guilt Civil Rights Cases Reading statute must give you a sense of what proper behavior is. ex: "It is illegal to behave in annoying behavior" What is annoying behavior? ex: Wright v. Georgia -Could not use a statute to stop blacks from playing ball in a playground. -Can not create a new interpretation of a law and apply it retroactively - (lunch counter) Defendants would not be on notice they were behaving illegally. ex: Lambert -Case where you have to register if you are a felon. Nothing she could do would make her aware of any wrong doing; and also had no opportunity to comply. III. Classification Identifying Elements of Crime The way you classify a crime affects the type of sentence imposed - penalty. What you call a crime is important. Different jurisdictions may vary a classification scheme to enforce laws ex: Melton Case - In Montana - as opposed to Fed. Gov"t, the sentence actually imposed defines the crime - NOT the sentence that could have been imposed. *Fed Gov"t - sentence that could have been imposed defines the crime. -Classification has a wide range - someone may argue successfully that a lower charge be given. ex: A. Essential Elements of Criminal Behavior: Act: can be omission (aff. act) possession *Must be B. D. E. voluntary. can Not be: person's status or condition. ex - fact someone is homeless or addicted to drugs does not in itself constitute criminal behavior. Mental Element act combined with intent. Exception: Some areas do not require the intent element The activity in and of itself is serious enough that person is strictly liable STATUTORY RAPE. *Essential Statutes tell us what act and mental state is required. C. Joinder of act and mental state - mental state usually triggers the act. Resulting harm - Does not have to be actual harm - can be mental, emotional or potential harm. ex - bullet barely misses person. Causual Connection *ALL ELEMENTS MUST BE SHOWN BEYOND A REASONABLE DOUBT** *Level of Proof IV.A Act actus revs - nature of conduct required by any definition of crime including any circumstances or results required by definition. ex Robbery Defined - commission of act of larceny during which person threatens immediate use of force for purpose of taking or keeping property. Actus Revs -taking of property -use or threatened use of force to carry it out -property belongs to someone else. In case of making alcohol he had all the paraphernalia and intent to make it but it is NOT enough without act. He did not make the alcohol yet. Intent alone is NOT sufficient. Possession as Act - (ex - area of trafficking drugs) -Possession must be a knowing possession. -Can be actual or constructive. "Mere Presence" is not enough for possession -Control is the key - Dominion and control is reflected in ability of some person to dictate terms of sale, delivery or distribution. Dominion + control = Constructive Possession Omission as Act *Need a Duty -failure to perform an act when duty to perform is imposed by law. -Failure to act - used to identify a duty. -If you are charging someone with an omission - failure to meet a duty, Plaintiff has burden to prove the person had the ability to meet the duty. -Duty can be imposed: 1) because of a certain type of relationship - parental duties - there is a duty to care for your child. failure to do so may result in criminal charges Also - marital duties. (tricky) 2)Statutory Duty: ex: Statute in place to make parents seek medical treatment for their sick kids. If parents fail to do so properly, they are liable. *2)ex: child payment case ll/property owners statute imposes duty. **NY creates an affirmative defense for parents Penal Code ?260.15 D must show 1) he is parent 2) prayer is principle treatment 3) the child was treated with this treatment. If defendant can prove these, he has met the statutory defense test. Law imposes a duty must make sure jury is charged in order for omission to be basis for conviction, there must be a duty on Defendant's part. *Legal Duty - imposed either by law or by K. 3) ex: Contractual duties - reflected in professional occupations ex: lifeguards, health care. 4) Moral obligation in form of implied K. ex: Case of mother being cared for by child. 5) CONTROL - situations can give rise to liability. If a person is in a position to exercise control, has the duty to do so (employer/employee) and does not he will be held liable. ex: Chauffeur driving employer. 6) Creating a peril by your actions brings with it a duty and creation of perilous situation is basis for liability. ex: case of girlfriend abandoning her boyfriend. 7) Voluntary providing of care or undertaking of conduct which would prevent others from offering assistance. 8) Crimes that have liability on basis of failure to act Built in requirement ex: failure to sign up for draft. failure to file tax returns. THESE OMISSIONS MUST BE ACCOMPANIED BY MENTAL ELEMENT. 3) ex: Part 2: Mens Rea Mental Element Element of blameworthiness - state of mind basis for defining criminal liability Idea is to rehabilitate, so want to focus on intentional behavior because these people we know acted deliberately and the system is designed to rehabilitate them. Restitution: If someone acted intentionally, should get their just punishment. *Would rather use these approaches for intentional rather than negligent behavior. Range of Men's Rea at CL - also reflected in NY statute *Levels of Mental State I. homicide (killing) + malice aforethought to kill with no excuse or justification) homicide + non-intentional behavior, but it is so wanton and bizarre that it shows a depraved indifference* to human life. Intent highest degree of liability (blameworthiness) Wanton Behavior Someone causes death while in course of committing a serious crime - Felon Murder. II. Manslaughter A. highest level - intent to cause serious personal injury and death results. B. reckless - knew risk was present and did not display appropriate level of care. III. Crim. neg. homicide - act careless in a gross nature - More than civil tert(?) Neg. causes someone's death. -general intent underlying most criminal behavior is a mental attitude that in and of itself is evil and served no purpose. act to bring about a harm. -specific intent - you must do something harmful but some crimes require an additional element. *more specific intent requirement - use words like "with intent to". Murder (intention Focus - on what Defendant was actually thinking A. Contemplated conduct beyond ex: Burglary - Defendant breaking and entering at night into someone's home with intent to commit a felony. Specific Intent - not enough to show breaking and entering need to commit a felony. B. Crime is defined to have a contemplated impact: ex: Issuing bad checks. Besides this, person must know at some time in the future, the check will be turned down. ex:Receiving stolen property - must know property is stolen. *Covers all behavior that is not specific intent and not strict liability - covers neg. and reckless behavior. Way to Prove Intent: (Mental Element) 1) Direct Evidence What Defendant said. Often this is contradicted and you wind up with a credibility contest. 2) Circumstantial Evidence What weapon used? What part of body assaulted? 3) Permissible Inferences - certain proofs allow inferences to be drawn. ex: Inference can be drawn from possession of contraband that person did so with knowledge (mental element) Men Rea - Culpable mental state CL View | +-----------------------+ | | on intent | | conscious purpose to bring on a result Knowledge - Almost Certain what I am doing is almost certain to bring on a set of results. NY - separates these two. Intent Knowledge - have an awareness result will take place MPC Intent - knowledge to cause a result Intent (knowledge) - awareness of a very high degree that result will come about. NY Penal Code ?l5.05 4 levels of liability - | | (Model Penal) l) 2) 3) 4) intentionally knowingly - person is aware reckless negligence | | | | l) purposely " " " * Range - intentional most serious | crim.neg NY - requirement of knowing is separated from intent. Intent - knowledge to cause a result Knowing Behavior - awareness of a very high degree that result will come about. In MODEL PENAL CODE - speaks of a very high degree of certainty a result will come about. *CL lumped these two into requirement of intent. Intent] It is possible for a single crime to have differing mens rea requirements. ex: statute - whoever sells liquor to one whom he knows to be a cop and he should know to be on duty is guilty of a misdemeanor. If statute reads: person knows...calls for subjective standard - Defendant needs actual knowledge. If Defendant believes otherwise, that is a defense. person has reason to know person should know - Objective Standard - what would a reasonable person know or understand. *Penal Statutes If statute does not say anything specifically about intent it is always to be implied. INTENT REQUIREMENT NY ?l5.l5 Language in statutes is very important* To speak on general intent and mental state - use one of 4 levels. To denote specific intent - "with intent to defraud" _ "knowing it to be false" If there are a number of elements set out in a statute - mens rea requirement is applied to all, if only one is listed. If statute is silent - intent is always to be implied unless leg. said otherwise. Definitions of Mental State - intentionally -has a conscious objective to cause the result ~ engage in conduct. knowingly "aware" of his conduct and that it is of such a nature or that circumstances exist. recklessly person is aware of, but consciously disregards a risk that such a result will occur. Risk must be such that disregard would be a gross deviation from norm. Sub awareness. *Difference is in awareness standards. crim. neg. person fails to perceive a substantial and unjustifiable risk. Risk is foreseeable to ordinary person. Risk must be such that failure to perceive it is a gross deviation from norm. objective awareness. Strict liability - imposed for just the act - no mental element required. Neg. and Recklessness - do not have a specific intent to commit (Crim) a crime. | | | | carelessness | unaware of | risk but | should be | aware of it. | | know of risk and proceed anyway. Element of Knowledge (MPC is diff. - says knowing behavior is if D is practically certain his conduct will cause result. NY - only says awareness. An issue that often arises is what kind of knowledge to charge D with- (sub) actual - (obj) knowledge person should have had given the circumstances. Knowledge can be - Direct Presumed - Inferred. - high probability of existence of fact in ques. of which you are aware) Deliberate ignorance - can't claim ignorance if some effort would allow you to be aware. Statutes in NY - allow a presumption ?l65.55 Crim. possession of stolen property ?l - Person knowingly possesses stolen property, an intent is presumed - intent to benefit himself. ?2 - If person who loans, buys or deals in property possesses stolen property after not making a reasonable inquiry whether person he got it from has a legal right to it - it is presumed he knows property was stolen. Presumptions (rebuttable) help establish P's prove prima facie case - but not conclusive. case Helps MPC - Does not support sanctions without some showing of fault. DL (?) should be limited as much as possible. Liability is at lowest level - VIOLATION. safety. Strict Liability purpose to achieve public Goes against CL Here: Liability is imposed without need of a mental state. Most of these crimes are in public interest/welfare area - regulatory. CL - was always looking for some level of blameworthiness. was big. Motive In SL - Don't need a particular harm *D is usually in a position to prevent the harm by using care and control. SL motive doesn't play such a huge part. Consideration - Is it fair to impose strict liability with no reference to blameworthiness, intention or mental state in order to gain benefit for society? (Yes) Penalties - Prosecution has burden of persuasion. Always looking for a reasonable relationship between public morals/welfare and nature of conduct being prohibited. ex; Waste disposal } Seat belts } Alcohol Distrib. } Gen. Idea - D is in some control of item involved and there is some technology available to make it safer. Leg. in its Statute - must be clear (not vague or over broad) Also has to be aware of First Amendment concerns (ex: St. liab. -- for having obscene books. Could violate First Amendment rights to free speech). NY - Does not allow vicarious liability in area where strict liability is imposed. Alternatives to St. Liab. l. Establish some mens rea reg. ( like neg. or recklessness) and raise penalties at some time. << Because with St. Liab. Standard is NO FAULT and penalties may be less>> 2. Define conduct which you are trying to control and create an affirmative defense. Unlawful Conduct If you intend to commit a crime and another results, you are liable unless that crime has a specific intent. But unlawful conduct - (violation of a statute) liability from intended result -- unintended result. carries l) Mala in se - evil in itself - unlawful in itself - no matter who victim is. 2) Mala in prohibita - wrong because leg. says it is unlawful conduct not enough - need special mental element. l) If you commit mala in se crime (like suicide - that is unlawful but not illegal) liability will flow. If a violation is designed to protect life and limb and it is wantonly violated, could be mala in se. Could be liable for manslaughter if death results. Mala in prohibita - usually if violate a malum in prohibita statute and death results, in most statutory schemes won't be guilty of manslaughter. Mere violation is not enough. Need all elements. 2) If have general intent to harm and act in a unlawful fashion this carries with it responsibility for harm that results. However, if a specific intent is required for the crime, it is not enough they behaved intentionally. Need existence of special element. CL - If committing a misdemeanor and death results - guilty of homicide. Malice Basically - generalized intent to do something X. In NY malice is not one of the 4 culpable mental states but it tends to manifest itself in intention and sometimes recklessness. Wilfulness Historically - does not mean evil frame of mind - means intentional, voluntary. Leg. - attached meaning - with an evil purpose. (*Malice - not mentioned on 4 levels of liability - but usually comes in). Transferred Intent CL - address problem when have set of results (person's mental mind and act with intended outcome) and a different outcome results ex: Intend to shoot and kill B Hits C CL - can transfer the intent. CL - assigns liability on basis of blameworthiness Exception: If person acts on basis of a privilege - no basis to transfer intent. NY - Through statutes, incorporates way of assigning liability for unintended injury to third persons. ex: ?120 - assault Define assault as intent to cause physical injury to another person and he causes such injury to that person or a third person. "Unintended Victim" Only covers unintended victim with similar harm Does not cover unintended harm of a different nature. ?125.20 - Manslaughter - responsible on level of manslaughter if have intent to cause px injury and death results to target or a third person. No injury - Doctrine doesn't apply. Usually Occurs 1) where harm results unintended results of a comparable nature. ex: 2) Can cause injury to intended victim and if third person is injured as well, transferred intent applies. **(hypo - with drink). Motive *Some situations make motive element of crime ex: Burglary - enter unlawfully with purpose (motive) of committing a felony. -Not a Basis for assigning liability. ?125.5 Intentional Murder only requirement is that it was done intentionally. Can use motive as some circumstantial evidence to establish intent. BUT NOT BASIS TO ASSIGN LIABILITY ex: You hate someone - want him dead. You drive - he jumps in front of car - to extent you can show it was an accident, proof of his motive (evil) will not change innocent to guilty. Uses of motive 1) significant at time of sentencing EX: 2) may help to sustain a defense - justification - (because a critical element of that is that you acted on basis of beliefs. Motive not needed to establish guilt (ex: perjury area witness hypo) Concurrence Need combination of actus rea and mens rea - must occur jointly. Can produce results at a later time. ex: If borrow something. One week later, you like it so much you decide to keep it. Not larceny because no concurrence. When borrowed it (act) had no intent to steal it (mental). Only if act and NY intent. hypo above - car crash - no liability because no concurrence. Can have an overall intent plus act and be liable - ex Case where killer set car on fire with victim inside. He thought she was already dead so at time blaze was set, he didn't intend to kill her - liability still attaches. Modifying Circumstances *MISTAKE (or Ignorance) -law -fact 2 types of Defenses in Penal Law 1) In statute are defenses - created by attacking elements of crime charged ex: assault - It wasn't (one) D that hit. Injury wasn't result of attack. Proof for prosecution (who still has burden of proof) to disprove beyond a reasonable doubt. 2) Affirmative Defenses - "Confession and Avoidance" Do not attack elements of crime. D explains why he shouldn't be liable ex: entrapment justification D has burden of proof - Preponderance of Evidence. Mistake of Fact - "defenses" - goes to one element of crime. Prosecution must disprove. Mistake of Law - mistake of legal concept. (In some penal law it is an off. defense) 2 concepts | | ---------------------+ | | | | | 1) Ignorance of law - no | excuse. Everyone presumed | to know law. Don't want to | turn that into sub. test. | | Mistake of fact implying mistake of law collateral law - ex: Larceny - you take property but believe it to be yours (mistake of fact). BUT - this implies law that if it was yours, you could take it. This collateral law, if in good faith, may be an affirmative defense. (like mistake of fact because deals with essential element of crime). 3) CL risk of assumption - Re: Age No defense if say believed (even if reasonable) victim was at age of consent. 1) When mistake eliminate an Essential Element of Crime Misidentified Target with regard to intentional liability - can't be charged if intend to hit a wild animal and hit a person. Law enforce. officer warrant to arrest A - but get B instead. Not subject to unlawful imprisonment charges. Collateral matter with real property Enter someone's land - believing it to be own. Can challenge trespass charge. With collateral matter - underlying claim must be Valid. ex; owed a debt. see debtee in store and force money out of his pocket. NOT VALID - because could not have a reasonable belief that that money is yours in his pocket. 2) 3) Mistake: set out in-- Affirmative Defense - Leg. determines if something is an aff. defense. Creates a provision within the statute. -It is likened to Confession and Avoidance -Defendant has burden of proof. - preponderance of evidence. -Defendant has to raise. Burden of proof for prosecution - beyond a reasonable doubt. (for defenses and aff. defenses as well as all elements. neg. - makes a judgment as to where responsibility should lie. Mistake: ?130 1) 2) re: age Sex Offenses -Element - lack of consent, which results from: Forcible compulsion Incapacity to consent: 1) under 17 years 2) mentally defective 3) mentally incapacitated 4) physically helpless. This statute sets out an affirmative defense - if Defendant had lack of knowledge about plaintiff's inability to consent based on elements 2-4 - but not age. No defense that Defendant didn't know Plaintiff was underage. (This is like CL) There is no requirement of knowledge built into the statute so can't be a defense to say "I didn't know" because knowledge is not a requirement. If: the aff. defense sets out, then mistake about age can be a factor. Generally, the law in NY tends NOT to excuse mistakes regarding age. ex - dissemination of indecent material to minor - aff. defense that person had a reasonable belief the child was older and asked for I.D. ex - Bigamy - knowledge is not element of crime so not a defense. Leg. creates aff. defense - "I thought it was OK to get remarried". Never a defense that Defendant didn't know age of a child - esp. Statutory Rape. Policy - There is a responsibility and it is wrong to have sex with minor. No mental element needed. ?15.20 Mistake of Law People can not claim they didn't know the law. NY dispels relief of liability based on mistake of fact or law. Mistake of Fact - not a defense unless - it cancels out the culpable mental state (essential element) or set out in statute. Could be a mistake to any element of crime. Mistake of Law - Not a defense unless - the belief is based on statute, admin. order, judicial decision of state or federal court. Broad gage defense mechanism to apply to any section which has a culpable mental state. ex. of mistake of fact - bigamy serving alcohol to a minor distributing immoral material. CAUSATIONIs an element of crime. Question of fact for jury. 2 categories of crimes | | +---------------------------+ | | Consequence Crimes there is some of element of resulting harm ex: assault trespass arson Circumstance Crimes people are guilty because a situation they find themselves in ex: criminal possession of drugs Causation is an essential element in consequence crimes* I. A. Intentional Crimes - [act with intent or knowledge] Direct Causation - Direct Causation is source of harm. Causing agent is usually something of a sub. nature. B. Defendant's act directly cause harm. Indirect Causation - Defendant creates a situation or increases risk of some intervening cause operating to produce harm. 2 kinds of intervening causes a) intervening dependent b) intervening independent Intervening dependent - the dependent cause is tied into original stimulus (Defendant's act) in such a way that it is a normal response to original stimulus. ex: people on boat on lake. Defendant shoots near them. One boy jumps out and drowns. Defendant charged with homicide. ex: Defendant shoots and stabs someone. Wound is not fatal. Infection develops. The natural reaction can be a victim response Wounded victim refuses treatment - dies Wounded victim commits suicide to escape pain. The operating cause of death would be the intervening cause, however it came on as a direct result from Defendant's actions - therefore Defendant is liable. B) Intervening independent key element is Foreseeability. If Defendant could not foresee the intervening cause, it becomes a superseding cause. If it is a foreseeable cause resulting from Defendant's act, it is not a superseding cause - Defendant is liable. RULE Defendant Act Defendant Act hypo 1) Int. Ind. Cause Foreseeable Unforeseeable Defendant liable Defendant not liable IIC becomes superseding A) person wounded by Defendant lying on ground elephant tramples to death not foreseeable. 2) medical care being administered - if Dr. acts negligently - NY-CL- neg is considered foreseeable, therefore Defendant is not liable. gross neg. - considered unforeseeable, therefore Defendant liable. 3) cut off life support system - CL - not a foreseeable one Defendant not liable NY - Defendant caused brain death - Defendant liable. Pre-Existing Weakness - Where intentional crimes are concerned, Defendant takes victim as he finds him. If a negative act takes place, (witness, who sees person being inj unless there is some by defendant and fails to call for relationship help-) Not Superseding Cause II. Non-Intentional Crimes crim. negligent reckless Look at harm and try to establish causal connections - Should we charge Defendant with reckless or crim. negligent behavior? Reckless - Defendant knows about the risk but moves forward anyway Crim. Neg. - Defendant is unaware of risk but scareless - should have known about it. Question to ask - Is it fair to impose liability recklessness? Then ask: Is injury close in space and time to Defendant's harm? Was harm directly foreseeable? (element of recklessness) What category of risk is involved? Was victim in Zone of Danger? for 1) 2) 3) 4) Pre-Existing Condition - Defendant not held accountable here. Concurrent Cause - If Defendant's actions play a part, even if the intervening independent cause is unforeseeable, can have a concurrent cause. Review - Indirect Cause Ind. Dependent - driven by original stimulus Independent - foreseeable - Defendant liable not foreseeable - becomes actual cause death Defendant not liable. of Could use 2 arguments ex: Medical malpractice - Defendant causes original wound. 2 theories 1) Concurrent Cause - Defendant is liable because wound still contributed to death. 2) Inter. Ind. Cause - that is foreseeable - as long as not gross negligence. These questions are fact determinant. Causation with regard to Felony - Murder Rule it and of no ?125.25(3) - FMR - speaks of absolute liability, but still need to establish a causal connection. ex: Defendant driving with gun on street is a felony to have the firearm. While driving, the victim crosses the street Defendant hits and kills her because his careless driving. No felony, Murder liability because connection between firearm carrying and hitting victim. Ques.: Will liability be assigned for death of co-felon or innocent bystander shot by police? agency approach - liability is assigned where things are done furtherance of a common scheme. co-felons not responsible for acts done by others - esp. police because they try and upset the scheme. *No causal connection *Other j NY Another concept - Proximate Cause - restricts FMR *CL intentional behavior with regard to underlying felony and this applies to resulting death. NY -- also does not include death of participating felon. co-felon's death is not part of FMR. NY has enumerated felonies which apply in FMR statute. Homicide NY ?125 Murder in 1st degree restricted to where victim is a police officer and Defendant had intent to cause death of another person and caused death of victim. Murder in 2nd degree 4 categories NY I. 1) Person is guilty of murder when with intent to cause death of another person he causes death of that or a third person. <> - 2 elements - intent to kill - murder takes place. 2 affirmative defenses act was done under extreme emotional disturbance. This replaces CL "heat of passion" Mitigating circumstance which lessens liability. Like MPC, has an objective/subjective standard. A) objective - was extreme emotional disturbance reasonable - from viewpoint of someone in Defendant's position and under circumstances as Defendant believed them to be. subjective - How did Defendant view situation? Did Defendant himself/herself experience the emotion? There is no requirement of spontaneity - there can be a brooding period. ex: Man imagines a girl he is living with loves him. He has as a fantasy - he killed her. Intentional, but mitigating circumstance. ex: family from a different cultural background - in their country, talking to a man friend is seen a wrong. Because NY provision allows room for Defendant's experiences, there was enough to send it to jury on extreme emo. disturbance. CL Approach of extreme emotional disturbance "Heat of Passion" - person behaves intentionally response to a situation Defendant finds himself in (emotional reaction; outburst of anger). This is less culpable than intentional acts with no provocation at all. Has both obj. and sub. elements Obj. - Would a reasonable person behave as Defendant did? Subj.- Was this particular Defendant so provoked? *Mitigating circumstances lessens liability. provoked: CL saw situations where Defendant would be NY At CL there a) Defendant threatened by Px harm b) Battery or actual assault on Defendant c) Mutual combat -Not as clear when talking about words and language as provocation. - words of a certain character are included (ex: describing sex act. was also a "Cooling Off Period" - defense only worked if blood was boiling. If time has past when a reasonable person would calm down No Defense. (NY is different) Imperfect Right of Self Defense Defendant starts a situation and then has to Not self-defense perfectly, but could mitigate. has obj/sub standard - More emphasis on subjective - More latitude in looking At CL respond. MPC Like NY at individual circumstances. Divides: 1) behavior purposeful and 2) knowing Policy Behind this affirmative defense - Mercy and Justice. B) Second affirm. defense to intentional murder Defendant causes or aids another person to commit suicide without duress or deception. Second category of murder 2nd degree Defendant actions evidence a depraved indifference to human life. Activity is so reckless it creates a grave risk of death to one person. Gross deviation from standard. Unlike reckless in culpable mental state, defendant does not have to be aware of the risk. He is held responsible for what *a responsible person should be aware of - Objective Std. -Create a degree of risk that is so severe - highest level - depraved mind and heart. Ex: of behavior: firing into crowd shooting at train or car with people driving car at high speed on main street throwing stones off roof of tall building piloting speed boat through crowd of swimmers III. Felony Murder Rule - 3rd category of Murder,2nd Define: Defendant acting alone or with others commits attempts to commit: robbery sodomy burglary escape kidnapping sexual abuse arson rape Defendant in course of and furtherance of crime OR immediate flight therefrom, he or another participant causes death of a person other than participant. Death must occur. This is strict liability - no mental requirement. Need to prove intent to commit the felony itself, no mental req. to commit the eventual murder. Doesn't like FMR - has an intent requirement. Have to show culpable mental state with regard to the murder - either knowingly, purposefully or with depraved indiff. creates presumption of malice. 3 stages of crime where FMR applies - II. but MPC-- 1) In course of 2) In furtherance homicidal activity takes place during course of felony. ex: Robbery taking place. Robber recognizes victim as old enemy and kills him for revenge. FMR doesn't apply because not in furtherance of felony. 3) Immediate flight from if flight has taken place, felony terminates (and then FMR is inapplicable) when a) reach place of temporary safety (ex hideout, changing place store proceeds) b) Jury also looks at time elapsed, distance travelled, are Defendants in possession of fruits of crime, are police in close or hot pursuit. *Jury Ques. If can determine that Defendants are still not safely out of danger, FMR would apply. Defendant can set activities in motion during which killing takes place. Person commits arson. He gets arrested so his part ends but fireman goes into fight blaze and dies of heart attack. FMR will apply because even though defendant's part ended, the danger he created did not abate. 5) Statute also talks about an attempt taking place killing going on during attempt stage. Attempt places Defendant in dangerous proximity of his and if death occurs, could be liable. 4) of - ex: and goal Conclude: FMR 1) need to have enumerated felons taking place 2) killing must have taken place in one of the five situations above 3) Causation ** Doesn't apply if co-felon killed another felon. Doesn't apply if police killed bystander. Bystander killing with - felon - No - not in furtherance of crime. EFFORTS TO RESTRICT FMR Efforts to restrict it because it was too broad because no intent needed to be shown. A) If you have a situation where defendant's act is at an end he is subdued by police, it may be hard to get him under FMR, but could say his behavior was so depraved that it constitutes extreme indifference to human life. (ex: Bomb hypo). Burglary enter unlawfully with intent to do something B) illegal. The illegal activity was assault - which resulted in death of 2 people. CA - says murder merges into felony. No FMR. NY - Burglary with intent to commit an assault - NY will allow application of FMR. Reason - people in their homes should have benefit of FMR. Policy Behind FMR 1) eases prosecutor's intent. Fairness. burden no necessity to show 2) Affirmative Defense - for FMR way 1) Defendant did not commit the homicidal act in any and 2) was not armed with a deadly weapon and 3) had no reason to believe anyone else (participant) had deadly weapon and 4) had no reason to believe any other person who participated was armed with a deadly weapon and intended to engage in conduct likely to result in death or serious Px injury. IV. 4th category of Murder 2nd Defendant engages in conduct which causes a grave risk of physical injury or death to a person under ll. Not necessarily done with recklessness or intent as in other provisions, but because activity is directed toward a child, a grave risk is created where it might not in adult. Common Law - Concept of Murder CL - responsible if you take another life without justification or excuse. CL - there comes a point beyond which liability doesn't extend "1 year and 1 day" rule. Death had to occur within this time. NY Maj. - don't follow this. Murder at CL - 4 categories - at CL - if you had malice aforethought, even if you only intended Px injury still liable for murder. aforethought. Appropriate mental state - malice 1) intent 2) intent 3) malice 4) taking CL combines to kill to inflict serious Px injury aforethought with extreme recklessness part in a felony concept of murder and manslaughter Manslaughter - person is liable for killings even though intent is mitigated or he is careless. 1) Voluntary man - Defendant acts because of provocation. Circumstances are mitigated. "Heat of Passion" and Defendant has not had time to cool off. 2) Imperfect Right of Self-Defense Defendant creates situation and then responds to it. If - even intentional - may be manslaughter. Behavior behaving recklessly negligently leads to victim's death. or death results Mitigating. 3) Involuntary NY 1st degree injury person* 1) Manslaughter Defendant has intent to cause serious physical but he causes death of another person or a 3rd by 2) If Defendant kills- has intent to cause death but it is based on extreme emotional disturbance (defined murder ?) can mitigate charge from murder to this. Pros. usually won't charge this initially. -Creates liability for behavior that was subject to factor in intentional murder. 3) Commits abortional act upon female more than 20 a weeks pregnant and causes her death. 4) Intent to cause less serious injury. Because of child's age and behavior, a grave risk of serious injury is created. Person dies. Intent to cause Px injury to another person and engage in reckless conduct which creates a grave risk. **** Murder 2nd degree and Manslaughter 1st degree deal with intentional behavior and behavior that is so reckless that it amounts to depraved indiff. to human life. (not reckless on mental state level) Manslaughter 2nd ?125.15 This involves reckless behavior of such a degree that it is not as high as murder or manslaughter. 2nd 1) person recklessly causes death of another person. 2) Causing female death by abortion that justifiable. is not 3) He intentionally causes or aids another person to commit suicide. ?125.10 Criminally Negligent Homicide Person criminally negligently causes death of another. Need more than mere negligence and proximate cause. ex: Mother left kids alone. This is neg. but not gross. Can't make people criminally liable for carelessness. Procedure: Homicide 1) Affirmative Defense with regard to murder for ex: Prosecution - overall burden of proving all elements beyond reasonable doubt. If there is a defense, prosecution must disprove that also (beyond doubt). reasonable Since statute provides for all aff. defense Defendant can raise it to mitigate. Defendant has Burden of proof }with regard to Burden of persuasion }this element only. 1) 2) 2) Corpus Delecti - must be proven at outset. - shows element of probable cause Prosecution must show: some loss or harm. loss based on/tied in with/ some criminal agency. A showing of this does not mean Defendant is guilty. Still need to require proving all elements of the crime. Usually - allows prosecution to move forward where there is no evidence of body found. To show corpus delecti - mainly use circumstantial evidence - ex - presence of Defendant at scene. motive flight of Defendant Confessions - made out of court are not used to show corpus delecti - Need evidence aside from this. RD: Not all confessions are People enjoy confessions. Evidence of Corpus Delecti must be separate from evidence of confession. If, absent a confession, there is no element of criminal behavior - no corpus delecti. Type of confession that is allowed - if by your statements about your activities you give away something that links you to crime, that is O.K. No Direct confessions. voluntary. Hypo - Defendant confesses to killing his brother. Investigators find car with pieces of skull and brain. Evidence Defendant hated brother. Defendant bought a rifle. Defendant wanted to kill him. Witness placed a scheme Defendant had to lead victim. There is enough evidence absent confession to establish corpus delecti - with No Body found. Hypo - Bridge - sees body floating. Person died because of drowning. Defendant confesses. Not enough. Hypo - Witnesses see Defendant and person struggle on bridge. See Defendant toss victim. No Body. Enough. Defendant confesses. 3) Victim defined for homicide purposes CL Fetus had to be born alive and be able to survive on its own to be considered a human being. NY Same standard - in order to be a victim, have to be born alive. 1) Statute says - "Intent to kill human (person) being". If you intend to kill baby while still in womb and then it is born alive and dies - NO LIABILITY under murder. Intent was to kill fetus statute says have to intend to kill human being. No Concurrence between Act, Intent and ensuing result. 2) If intend to kill fetus and baby dies in womb - No liability under murder. 3) Intend to kill mother - injures mother and fetus. Mother lives and fetus dies after being born alive and living for one day. Under intentional Murder - is this Defendant liable - "with intent to cause death of another person". He causes death of such person or a 3rd person. This hypo allows Defendant intent to kill mother (person 1) to transfer to fetus born alive (person #2). argue under provision #2 - depraved Hypo: Intent to kill fetus - Mother is killed. Can't get him under intentional section, but could say his behavior amounted to such a grave risk - depraved indiff. to human life -{MOTHER'S LIFE} No specific intent required here. Fetus not born alive - considered an abortional act. 4) Premeditation Some j. have a requirement in homicide premeditation. Some statute - early cases said all you need for premeditation - is intentional behavior. Today - need anticipation and reflection on part of Defendant before event took place. ?110 Attempt - Person needs specific intent to commit the crime and he engages in conduct which tends toward commission of crime. *Does Not Apply to Reckless or Neg. *ex: where there is no intent req.--murder aspect of FMR - no attempt. Policy - Body of law developed to impose liability for something short of consummated criminal act. (Includes solicitation also) Want to discourage the type of activity which tends toward criminal activity. Harm - putting another person under threat Still need Act and Intent | | | | | | | | | | | +----attempt - tends to focus on intent and for the act, it is how close Defendant gets to realizing criminal goal. 3 Theories - CL, NY, MPC. - These theories deal with Act. CL - Looked at how much remained to be done before target crime is committed - LAST PROXIMATE ACT - when Defendant had done all he could to commit target crime - then have attempt. CL also looked at physical nearness of Defendant. CL had indispensable element test - if Defendant has not gained control of an element that is necessary to ultimate goal - not close enough for attempt. doesn't have weapon yet. ex: Defendant NY - translate "tends toward commission of crime" to mean is in "dangerous proximity" - Defendant is in close range of his goal. Mere preparation is not enough. "Tending to effect commission of a crime" "How close are you to ultimate commission?" MPC - "substantial steps" test - look for direct movement toward crime. How much ground have you covered from ground 0? Ex of substantial step: (A) lying in wait, searching for or following the contemplated victim of the crime. -enticing or seeking to entice victim to go to place contemplated for its commission -unlawful entry of a structure, vehicle or enclosure in which it is contemplated that crime will committed. of be -possession of materials to be employed in commission a crime. Can have an attempt situation even where crime is committed. Ex. of Dangerous Proximity I. Look at crime - how close has Defendant gotten - tending toward commission of crime. Burglary - unlawful entry for purpose of committing another crime ex: 2 a.m. - person crouched by 3rd floor window Attempt Found. ex: Bar and Grill. Closed. Defendant found in doorway with a satchel of tools. Pry marks found on door. Attempt Found ex: Defendant found close to a business, in desolate area after business is closed. When Defendant was seen, he hid. Evidence of breaking marks on door. Attempt Found - Fleeing is also seen as evidence of guilt. ex: Business closed. Defendant at window. Another man close by watching. Need additional showing.(?) No Attempt. Robbery - Using physical force to take others property. ex: 2 Defendants - driving car without plates. Go into 7/11. 1 Defendant has a gun - pulls it out - other stays in running car. They hear a siren and flee. Attempt Found Potential Drug Transaction Defendant and undercover cop talk and set up a transaction (Defendant agrees to pay a price for coke). When they both meet, Defendant has no money and cop has no drugs. No Attempt. Attempt to Rob Bank Young case - guy cased the bank - never went in because ct said he got very close and his behavior would have caused others to react. Attempt Found Hindering of Prosecution Defendant kills victim (intentionally). Wants a friend to help him hide the body. The friend agrees and both go to the scene, but as Defendant's friend gets close, friend decides he doesn't want to and leaves. No Attempt Larceny - Intent to deprive another of property and appropriate same to himself or a third person, he wrongfully takes obtains or withholds such property from owner. ex: Insurance scam - make claim on car - Defendant gives keys to third person to have him dispose of car - Which is done. He then tells insurance company of loss. Scheme unravels. Attempt Found - Disposition of car and reporting it is enough. ex: Cops learn of a plan for Defendants to rob a messenger. Plan is to catch messenger leaving hotel. Defendants go to hotel and are arrested - but messenger had left one hour earlier. No Attempt - (Closer case - if they had been there waiting for messenger - then attempt would be found) ~ACT TENDS TOWARD COMMISSION OF OFFENSE~ II. ex: No Attempt if Crime Itself Was Completed Power failure widespread property damage taking place. Investigator of one damaged store finds Defendant crouching in corner, plate glass window broken, store contents in disarray. Can Defendant be charged with attempted burglary? Ct found substantive crime had already been committed. (Unlawful entry for purpose of committing a crime [illegal purposes]). * Attempt Merges. III. Also can not have charge of attempt if underlying act is not illegal. ex: Forgery attempt--Defendant's act in changing marginal figures wouldn't make the money forged. Underlying act not illegal, so no attempt. No Attempt if There is NO Underlying Crime. hypo Shooting at empty bed. physical injury. liability imposed for attempted murder No Criminal Under CL test "last proximate act" - Last thing Defendant will do is shoot - so he has committed last proximate act. Under MPC test - "substantial steps" - he has taken substantial steps although Defendant would say there was no way to finalize, so no liability. Under NY Statute - "Dangerous proximity" - he did everything he could to achieve liability - he fired gun even. Absent that, however he probably would still be liable. Liability would exist in these situations even though it is factually impossible to commit the crime. Things That Can Keep Attempt From Being Successful I. -intervening cause -arrest -failure of element of the plan -Impossibility | | } These were defenses to charge attempt. of | | +------------+ | | | | factual legal Someone sets out to achieve an objective is confronted with unknown facts or a legal environment making completion of ultimate crime NOT possible. - legally or factually. Factual - empty bed - assume victim is there. Defendant is mistaken about a fact - but if everything is done in the factual situation Defendant assumed existed, a crime would be committed. Legal - lack of some aspect which would otherwise make Defendant's behavior criminal. Everything , if done in the factual situation that exists and Defendant's full intent, does not amount to a crime because some aspect is missing. ex: Want to steal a jacket. Then you realize it is your own jacket - Can not appropriate what is legally yours. ex: Want to enter premises illegally - it is your intent to do so. But you have permission to enter so it is not a crime. Legally impossible. (But underlying situation, if fact was different, would be a crime). Historically - Cts viewed these separately factual imposs. - seen as No Defense. legal imposs. - considered as a defense. * RD: Just because Defendant made a mistake - he is still liable. RD: Even if Defendant did all he planned - No Crime. Can"t attempt what is not a crime. It is very hard to draw distinctions between these two. NY ?ll0.l0 imposs. * Abolishes distinction between legal and factual Neither is a block to prosecution. Defendant's conduct. Focus is on nature of So now even in situations where there is no possibility for prosecution of the substantive crime because of impossibility, an attempt conviction can stand. ex: Defendant shoots victim - has intent to kill. Victim was dead already. So - it is factually impossible to be charged with crime of murder. However - can now in NY charge him with attempt because intent was there. The overt act toward commission of crime and now - factual impossibility is No Block. Policy - This is behavior you want to control. II. Inherent Impossible Situation Conduct undertaken which can not as a physical matter, accomplish the criminal objective. Policy - have to draw the line somewhere. ex: Go up to mountain top because want to kill people in Middle East. Shoot but there is no way goal could be achieved. Can't charge Defendant with attempt. Could also see this as not getting within dangerous proximity. III. Doctrine of Legality Underlying conduct is legal! (Unlike legal impossibility where but for a mistake, the crime would be committed.) Here, no matter what mistake, the act will never be a crime. It simply isn't illegal. Doesn't matter if you have the intent to commit this act. Can't make something illegal which is legal. ex: Local law allows pot. If you don't know this and go to smoke pot thinking it is illegal (try and buy it but it is unavailable) Conduct by Defendant is legal conduct - can't be prosecuted for it even though Defendant believed it was illegal. Statutory Rape - consenting age is l7. Woman is l8. Defendant knows woman is l8, but Defendant believes his act is illegal because he thinks the age for consent is l9. It is not possible for him to commit Statutory Rape because what he did is no illegal. ex: Can not make legal conduct illegal by your mistake. Policy - Leg. must create a boundary - only when you intend to do something within the illegal boundary are you liable. ex: Try and pick an empty pocket. This is still attempt because pick pocketing is within realm of illegal activity. ex: ex: Forged instrument - not illegal to try and put number where Defendant did so no attempt (see ex. prior). Shooting at empty bed - This is illegal activity and just because person wasn't there - no excuse - still liable. Stolen Property CL - Old NY Cases - found that if the police intercepted stolen property it is no longer stolen - character of the goods change. So if Defendant received these goods, they were no longer stolen and Defendant could not be charged with receiving stolen property. Legal Impossibility. This was the defense. NY ex: today removes legal impossibility and allows Defendant to be guilty of attempt. Drug transaction - substance turns out to be aspirin Defendant had intent to sell narcotic drug so it is not a legality question because that would be a violation of law and impossibility is not a defense. Defendant guilty. Policy - After intent is clearly established, Ct feels that you have to look at the kind of behavior where you want a sanction imposed. Some statutes in NY have attempt built into them - they included attempt as part of the substantive crime. No separate action for it. ex: ?200 Bribery - guilty when you confer or offer to confer a benefit on a public servant whether or not officer accepts bribe is irrelevant. Crime completed when money was offered. ?240.25 Harassment - attempting to harass is also part of sub. crime. ?l65.25 Jostling - this crime is usually of an attempt nature Sub crime is made of someone who is moving in dangerous proximity - like attempted larceny. Mistaken Identity hypo Defendant intends to injure A. He thinks B is A and shoots at him. Defendant misses. An attempt is being made, without a doubt. but on whom? The attempt is being made on B - the very person in front of him. NY ex: also tries to get at behavior which could erupt into criminal activity by treating possession as crime. possession of stolen goods ex: ex: ex: possession of burglary tools possession of forged instrument possession of forged instrument devices. Element - Intent to use these things for an offense. Offenses Anticipatory *To renunciate solicitation - if crime is not committed, Defendant has to show that it was his actions that prevented the commission. It goes through - Defendant can't renunciate may be able to raise an aff. defense that he tried to back out. 3 Kinds: l) Solicitation 2) Facilitation 3) Conspiracy. With these three offenses, there is not a requirement that actual crime be committed. These three help define behavior in the area between attempt and commission. I. Solicitation commission A ?l00 fills gap between attempt and Person has intent that another person engage in conduct constituting a class A felony - Based on this intent, he solicits, requests, commands, importunes or otherwise attempts to cause other person to engage in such conduct. Defendant reaches out and tries to get someone to commit a more serious crime (doesn't apply to minor crimes). Need specific intent specific crime** to have another person commit a ** Policy - This reaching out is a thing to present. Looking at substantive crime - reaching out to make someone commit a crime is bad in itself. There is a recent provision in NY where a person over l8 solicits etc. a person under l6 to commit a class A felony. Hypo: Defendant wants X to steal a car. He tells him he won a car in a contest and he should go get it. Defendant has specific intent that X commit grand larceny. B Defense - It is NOT a defense that person who Defendant tries to get to commit the crime is not capable of being prosecuted for the crime because of either criminal impossibility or legal capacity or exemption or basically being unable to form the requisite mental state required to commit the crime. Defendant is still liable for solicitation. hypo above about grand larceny. X has a mental disease and can't form the requisite intent. Defendant is still liable for solicitation. Exemption: ex: A person is not guilty of criminal solicitation when his solicitation constitutes conduct of a kind that is necessarily incidental to the commission of the crime solicited. Sale of Drugs - Defendant communicates with X attempted to get him to sell drugs. Since communication is inherent to crime. It becomes merged into the substantive crime. Actor (Defendant) now becomes guilty of the sub. crime itself - not the solicitation. ex: If a person who solicits another can not himself be liable for the crime because of infirmity or infancy, he can not be prosecuted for solicitation. RD: Unable to formulate requisite intent. ** If person who is solicited agrees to commit the crime, the individual who solicits can be responsible and take on full criminal liability as an accomplice of person to whom request is made. Both solicitor and actor will have full liability for crime. Solicitation applies where crime has not yet been committed, technically, he can be charged with solicitation, but usually it will merge into substantive crime and solicitor will get accomplice liability. Facilitation * render aid with knowledge. directing or recommending a source or supply is not facilitation. Intent to aid but not necessarily specific intent to commit crime. ex: supply guns to someone you know is in process of setting up robbery or burglary. ex: X intends to engage in narcotics transaction. Knowing this D provides $. This gives means and opportunity for crime to take place. ? ll5 Diff. from solicitation l) 2) 3) target crime is committed. intent is to aid or provide means or opportunity for commission of a crime. Provide support and assistance. D has actual (or probable belief) knowledge that person already intends to commit the crime . D has to believe that he is giving assistance which is geared towards committing the crime. has specific intent to aid but not necessarily spec. intent to commit crime itself or benefit from it or participate. Intent is to assist - no requirement facilitator has intent to commit underlying crime. 4) 5) Temperal Dimension - Belief is needed on D's part - D must believe the assistance he is giving is helping a person who intends to commit a crime. Sub. knowledge or belief. ex: Cop asked D where there was pot for sale. D recommends him to another seller - No Facilitation because seller (D) at the time had no way (belief) that other seller would commit the crime. Crime must occur, but if there is no prosecution for it, doesn't bar pros. for facilitation. Conspiracy ? l05 3 Elements: l) l) 2) 2) Intent - need 2 aspects. intent on part of parties to agree Criminal intent in terms of substantive crime (This differs from both sol. and facil) Agreement -need an agreement between 2 or more people. Meeting of minds formed around attempt to commit a crime. All parties must have intent to achieve same criminal result. Statute - "A person is guilty of Conspiracy in 2nd degree when, with intent had conduct constituting a class A felony be performed, he agrees with one or more persons to engage in and cause performance of such conduct. Agreement is addressed to these crimes where there is a specific intent to carry out criminal objective. It is almost impossible to carry out those crimes which are reckless/ neg. based. 3) Overt Act - This act in and of itself doesn't need to be illegal. Needed to provide some element of concrete proof. of conspiracy. Without this, there is no provable conspiracy. The underlying crime doesn't need to be committed. Defenses Impossibility is not a defense. Policy - Possibility of group action is in and of itself a threat. We want to deter this - so fact that underlying crime is impossible doesn't rule out criminal activity. ? l05.30 Conspiracy - no defense Unilateral approach - If you are capable of being in conspiracy and think others are, even if not. *If one member of the conspiracy would be ineligible for liability for the crime or conspiracy because of incapacity, illegality etc, this doesn't bar prosecution, or prosecuting co-conspirators for either conspiracy OR the object crime. ex: D enters into agreement with undercover cop. There is no mental state on part of cop. D is still responsible. Changed CL - at CL - each member had to have the requisite intent to commit the crime. Rule of Consistency - if trials are together, can't be guilty of others are not. NY - Person can be guilty of conspiracy even though everyone else might be immune from prosecution for reason like age or incapacity. Mental Incapacity is NOT a barrier to liability. NY allows conspiratorial liability in and of itself - liability for being in conspiracy - if you believe the others intend to conspire also - even if they do not or can not. NY - Can be charged with both conspiracy and underlying crime. BUT, have to prove all the elements of the underlying crime. NOT A MERGER CRIME Fed. Rule - If all act in conspiracy and only one does the crime All will be liable even if they didn't act. NOT SO in NY - need particular participation in each element. Accomplice CL - complicated doctrine ? 20 - When one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof he solicits, requests, commands, importunes or intentionally aids such person to engage in such conduct. - Need requisite intent to commit crime itself - Does a supportive type of action (as above). -Behavior is consummated. Doesn't deal with requesting someone else to engage in crime (solicitation) but if crime occurs, solicitation merges and both solicitor and solicitee are liable under accomplice and principal. -Shared Intent - Share intent to commit the crime with the person who is being helped. (This differs from facilitation because there you do not intend to commit the crime, you intend to help the other person.) Fac. provides means and opportunity but didn't participate beyond that in commission of crime itself. -Facilitation not guilty under accomplice because there is no shared intent. -Accessional - If he intends to share in benefit of crime and he provides means and opportunity. You provide assistance and derive liability as if you participated. -You can still be guilty even if principal is not guilty of the offense because of criminal irresponsibility or other legal capacity or exemptions or if other person has not been prosecuted or connected of any offense or has been acquitted. -If the offense is question can only be committed by a particular class of people and the D does not belong to such class and is therefore legally incapable of committing the offense, he can still be liable as an accomplice. EXCEPTION: If act of D is of a kind which is necessarily a part of the underlying offense, he is not liable as accomplice. ? 40.l0 Defense to: l) Accomplice - aff. defense if D manifests a voluntary and complete renunciation of his criminal purpose. D withdraws from participation prior to commission and made a substantial effort to present commission of. Facilitation - aff. defense if - prior to commission of felony in which he facilitated, D made a substantial effort to prevent commission of such felony. Attempt - aff. defense - if under circumstances manifesting a complete and voluntary renunciation of criminal purpose - D avoided commission of the crime attempted by abandoning his criminal effort and - if mere abandonment was insufficient to accomplish such avoidance - he takes further and affirmative steps which prevented crime. MUST AVOID CRIME Renunciation - Affirmative Defense 2) 3) 4) Conspiracy - if crime contemplated was not in fact committed, it is an aff. defense that D manifest a voluntary and complete renunciation and D prevents commission of crime (?enough - ex- only still liable) Policy - Encourage people to change behavior. Can't be just on fear of getting caught. Need change of heart - shown by complete withdrawal. Substantial effort needed on part of D - usually means personal effort - putting body in line. 5) * Solicitation - Vol. and comp. renun. of criminal purpose and D prevented crime. If individual renounces, he may still be liable for attempt because there is no defense or basis of impossibility. In a group setting - it could be harder to show renunciation because a substantial effort may not be good enough. If person withdrew but it does not amount to substantial effort, D could be liable for attempt. D alone - withdrawal will end events. Attempt sit - even if D's behavior is renounced, if some harm has been created it may be too much to allow renunciation statute to take place. ex: D approaches victim and fires a shot. It misses. D says Sorry - throws gun away. This behavior creates too much in way of harm. So - in attempt area - it is refined to reflect some degree of activity and harm to victim. -Multiple Offenders If D's own act is in and of itself NOT enough to prevent crime from taking place, has to take further steps to prevent crime. MUST AVOID COMMISSION ex: Conspiracy - D decides he is stopping. come and STOP. NY He calls cops and they This is not enough for renunciation (even if crime doesn't go through) because it was NOT D's substantial step which prevented crime. -Can't be voluntary if D believes the chances of the crime are lessened or they are postponing it. Renunciation l) Accomplice (crime attempt is already committed) l) voluntary and complete manifestation of renunciation of criminal purpose, 2) completely withdraw before crime committed, 3) have made substantial efforts to prevent commission. Solicitation l)prevent crime, 2) voluntary and manifestation of renunciation of criminal purpose. Facilitation (crime is also committed) substantial efforts to prevent commission. complete made 2) 3) 4) l)D Conspiracy l) voluntary and complete manifestation of renunciation of criminal purpose, 2) D must prevent crime conspired to. 5) Attempt l) complete and voluntary manifestation of renunciation of criminal purpose, 2) D prevented crime by abandoning his criminal effort and if mere abandonment is not enough, by taking further and affirmative steps which prevented commission thereof ? 40.l5 Aff. defense involving lack of criminal responsibility is a complete defense. Insanity - Some deficiency which keeps person from being able to distinguish between mental capacity and behavior. Tests involved Distinction - separating someone's mental capacity at time crime was committed and behavior that might effect someone's competency to stand trial (Insane at time of crime and time of trial). Can be sane at time crime was committed and insane at time of trial. Procedural Aspects Notice must be given where D intends to raise insanity defense allows rebuttal and psychiatric tests. No element of surprise. Burden of Proof - If raised as aff. defense - D has to raise some evidence. Mostly, D must establish it by preponderance of evidence. Fed. Burden - Clear and convincing evidence. Classic Test - incorporated into many statutes today. l) M'Naughten -looks to what can you determine examining D ability to know. D's mental capacity - Does he know difference between right and wrong. "irresistible Impulse" - separate but used with M'Naughten test also. Person has no control and it is temporary and they are deprived of reason and they are led to behavior that leads them against law. - Whether or not irresistible impulse. person performed act on basis of 2) TEST 3) Durham Test - effort to try and identify direct causal link between mental disease and behavior. use in few states. 4) Largely been limited to MPC - (not liable if he lacks sub. capacity to know or appreciate) drawn on M'Naughten but has tried to expand it. Dealing with key element - ability to develop mental capacity to do criminal behavior to extent you can't develop this, won't be liable for behavior. -M'Naughten - Insanity - major disability in person's cognition. Look at D's status at time of act - Asked if D at time was laboring under defect of reason from disease of mind. 2 branches (areas of analysis) l) 2) What Person affected by mental disease to point where he doesn't know nature and quality of act. Even though there may have been an awareness of what person was doing - he didn't know what he was doing was wrong. can you identify through cognitive process? Focus on knowledge and person's capacity to receive knowledge. Every aspect of D's behavior would be scrutinized and if someone lacked knowledge it had to be a total failure. No varying degrees of incapacity. (Criticized for total element) - very rare you find people with total failure. Another area of concern about this - tight limit placed on expert testimony. because it focuses on cognition - this is way expert testimony is directed. Doesn't allow a broad range of ques. or full exam. Narrow Focus. - Feeling this focus on cognition is scientifically outdated. Idea that mental illness can impair person's volition even in situation where cognitive abilities are fairly well intact. ex: Person is unable to control will and power to resist taking part in activity even though he knows right/wrong. -Irresistible Impulse - gives D an opportunity to argue liability shouldn't be imposed because there is a condition which causes D to lose power to chose right/wrong and lose power to control behavior because his free agency has been destroyed or impaired. -Lose Power to Exercise Free Agency -D acted from irres/ uncontrollable impulse. This test also successfully because Drs. behavior that requires total incapacity for defense to be employed. Limitation on expert testimony may have a hard time distinguishing between can not be resisted and behavior that D chooses not to resist. MPC - pg.649 Dual Approach - draws on 2 prevalent variation Cognitive/Volitional. Branch l Looks at impact of mental disease distinguish between right and wrong. on ability to Branch 2 It also looks at individual capacity to bring behavior within confines of what law requires. Recognition of volitional aspect of human behavior. Language - D must show he/she lacks "substantial capacity" - Key substitution - tried to move MPC test away from criticism of M'Naughten and carries impulse standard which requires total incapacity. MPC standard shows there is a significant impairment without having to meet somewhat unrealistic test of total incapacity. Effort to create more realistic approach. Durham - tries to make connection between mental disease and conduct. If you can do this - make finding that conduct is a product of mental disease/defect - clear basis for putting them in mental health arena. Not very successful - partly because there was no def. of mental disease/defect. Left to others to come up with own standards. These cases relied on testimony of experts. Jury Rule - accepting l expert testimony over another. Fed. Test - (done because of attempt on R. Reagan's life) Clear ex. of current events affecting judicial process. '84 Congress changed test and said D has to establish by clear and convincing evidence (increased) that D is unable to appreciate nature of conduct. Fed. Test - makes same TOTAL REQUIREMENT (incapacity) to app. nature and quality of conduct. Tougher Test Maj. M'Naughten Same if have abolished insanity as aff. defense. Say - if claim is insanity, lets focus on mens rea aspect of criminal defense and apply mens rea standard to allegation of mental disease/illness. If client has mental disease and as a result is unable to form required mens rea of crime, that is basis for acquittal. Since this isn't aff. defense, burden is on prosecution to establish D has capacity to meet mens rea requirement. Burden is beyond reasonable doubt. NY Up to '65 NY treated M'N Rule as basis for insanity defense. "People" bore burden of disproving element of D's case beyond a reasonable doubt. '65 NY broadened test by drawing on aspect of MPC formulation and used "substantial capacity". ? 40.l5 speaks of knowing or appreciate nature and consequences of conduct or conduct was wrong. Contemplates situation where someone may know something is wrong but lacks substantial capacity to appreciate it was wrong. '84 NY changed it to an affirmation defense. rests on D. Burden of proof Culpability - There may still be situations where issue is D's ability to formulate req. intent as statute requires. Sometimes. it may be relevant to issue of intent whether D formulate req. intent - even if issue of insanity has not been raised. ex: Someone charged with larceny - have to have intent to take someone's property and keep it. Inability to have this intent because of mental illness can be established. -Delusional elements might be drawn on to show someone didn't have. Diminished Capacity - points to specific ability with regard to mental elements of crime charged. - Limiting someone from - Person can't form consequence of reckless/negligent Capacity may be liability. forming mental state. culpable state required but may have reducing someone's liability to behavior. less - may not necessarily eliminate Durham Drew - Fairly good summary of some j. rationale of having sense of restrictions/limitations and using as alternative test developed by American Law In. and adopted by MPC. pg. 638 Friedman - sets out Fed. Test pg.640 Ramsey - represents approach - look to same def. of conduct that may have mental conduct. Intro. verdict of "guilty but mentally ill" Way of trying to relieve people who will be relieved of all liability. Illness doesn't negate mental element of crime. Class *Intox is not as such a defense, but in any prosecution for an offense, evidence of intoxication of D may be inferred to negate an element of crime charge. *Vol. Intent is not a defense to reckless behavior because it was reckless to put yourself in that position (get ?) Criminal Law Intox, Duress, Necessity (?) Intoxication - Defense - will negate some particular element of crime charged. It most often will negate mental element - D because of intox was unable to form requisite intent for crime. Deff. when it comes to reckless behavior. ? l5.l5 - Recklessly - last sen., excludes the defense of intox. from reckless. Still liable for reckless behavior even if you are unaware because of vol. intoxication. Applies also to depraved homicide murder 2. indifference to human life sec. of Available to negate someone's ability to form mental state (not so with recklessness). Powell Case - pg. 662 - Someone charged with being drunk in a public place can be connected even if they are a chronic alcoholic because there is still an element of choice as to what particular time he was drunk. *Reckless Distinction - Drug addiction is an illness - to punish them you would be punishing them for being sick. Powell This person was drunk on that particular occasion. Despairing opinion - Involuntary Intox. Duress - different from necessity. Justification - PL says this is conduct we are trying to encourage - it is justified - not a crime because there is some value society derives (protect themselves from violent attacks, protect homes) Don't put criminal label on it if person can meet circumstances. When talk about this - we are talking about activity, even if justified, is a crime. We say that this crime has a defense society will recognize. Crime does take place but we will excuse behavior. justification. Crime but we will excuse it. Why draw this distinction? ?When looked at accomplice - possible to have D liable under ? 20 and other one who actually did activity, may have an affirmative defense available (entrapment etc.) Duress - coercion - leaning on action - focuses in on those kinds of things which represent an aspect of imminency. If force or threat being made can't be realized without immediacy - won't apply. Also - deals with measure of objectivity - What is to be immediate may vary from person to person. What sort of standard will be used to measure. Will a person of reasonable firmness have been able to resist? Jury can take into account Px characteristics of person. Speaks of D's situation. Can't intentionally or recklessly expose yourself to this duress. Nature of what D claims is that there is no intent to commit crime. There is an act but no concurrence between D's mental state. Not voluntary hypo: Prosecution is trying to overcome situation by a preponderance of evidence this aff. defense - try to rebut notion that D had no intent to commit offense. If there are prior criminal acts on part of D, this may be proof that he did have intent to commit prior acts. Ordinarily, D's prior background is not an issue because there is nothing putting his character on issue. When D Why we call it testifies, however, this may open gates to someone else allowing evidence in. -Not frequent defense Necessity Should be in Justify - arise in context where society excuses conduct is permitted because i represents benefit of some sort. NY Looks to very narrow situation in which there is an emergency and emergency cries out for behavior which would otherwise be criminal but nature of emergency justifies using this conduct. MPC - "Choice of Evils" defense - People choose between these evils - lesser evil (ex. take loaf of bread rather than let someone go hungry) Not such an emergency as NY sees it. Section 35.05 - You don't get benefit of this defense until it rules as matter of law that what you plan to show meets statute's requirements. ** ex: Only statute that has this limitation. Situation where fire is spreading and in order to stop it have to burn something else - ex - another house to create cross current. Commits arson but is excused. Bar fight - only one exit and he was in danger of being killed. Only way to avoid it is to break through glass and open emergency exit. CT said it as a matter of law this is an emergency and action that were taken (if believed separate question) would clearly outweigh desirability to avoid injury. ex: Justification - is a defense. *Only burden for Defendant is to come forward. For Defendant to raise and prosecution to disprove beyond a reasonable doubt. Unlike duress/entrap - aff. defenses Defendant would have sustain by prep. of evidence. ?35.l0 Use of force provision - provides a guide Physician/Common Carriers - Use of Force Parents - px - never deadly Warden px CarrierCarrier - px deadly if reasonable Stop Suicide- px Dr. px to render treatment , self defense. GN - areas where people have resp. for others - Parents. Dr. Sec. allows for emergency situation - so force used - if Dr. reasonably believes it is necessary. Will be allowed under this sec. Sit - look to situation ourselves or others. where we try to defend ?35.l5 Generally looking for a reasonable belief on part of person that force is necessary to defend either actor himself or someone else and whether in addition there is a reasonable belief the person must confront use or imminent use of force by someone else. Dual Approach - reasonable in my belief force is necessary. reas. belief unlawful physical force is being applied upon me. Mae focused when looking at deadly physical force. Belief that you need to use this - had to believe deadly physical force is about to be used against me. Focus on risk individual is faced with as well as capacity that whatever that threat is to inflict of harm. Not what actually happens or what actor intends to - it is risk he creates. ex: ex: Gun pointed, cocked. Risk of serious physical injury is now there. Doesn't require someone to actually pull trigger. handkerchief, sidewalk, baseball bat - All things, harmless in itself. Can be used in a way to make them deadly. Retreating - limitation on use of deadly physical force. Can't use deadly physical force unless certain conditions are met. If you know you can retreat in complete safety, deadly physical force is not an option. Can't use it (it is an excuse) if there is an avenue of safety. Exceptions l) Individual is under attack in his or her dwelling, no duty to retreat. If in home and not initial aggressor. 2) Retreat not required - police/peace officer in process of making an arrest or someone assisting an officer at his direction. If those are satisfied, where jus. is met. law is saying use of force is privileged under those circumstances and conduct is lawful. Not trying to negate partic. element of crime charged. Doesn't matter what level Defendant is charged with because once you meet jus. requirements, his behavior is lawful - approval of all of behavior that takes place. Does not attack particular element of crime charged. * * When say jus. winds up with an approval it is because jus. ha been successful with regard to use of force. Will not protect behavior that falls under some aspect of PL - ex: Defendant is successful of asserting jus. for using a firearm. No means of complete retreat and all beliefs were reasonable etc. * If weapon itself was illegally in Defendant's possession, he can be liable because j. only applies to use of force. Pg. 792 - Goetz NY Goetz sitting on train - Goetz said he was - Charges attempted murder, assault. accosted. To determine whether there was justification, have to determine a standard of reasonableness. Is there an objective notion of reasonableness in NY statute The opinion before us comes in before trial. Should indictment stand or not? CT finds - looking at historical pattern, CT finds there is an objective standard. When it goes to that, using objective standard, it opens way of some consideration of particular characteristics of the individual. Look obj. and also consider sub. aspects that are characteristic ex: prior experience which would lead to reasonableness of his belief. Leg. had a choice to make. MPC - diff. standard. - sub. oriented test. Dual Standard Obj. - stand. but allows. Sub. - look at particular aspects of individual. Defenses Intoxication Vol. Intox. no defense in reckless behavior because that was reckless in itself to get drunk. Intox is not a defense in itself but can us it to negative an essential element of crime. Duress ?40.00 - Aff. defense - It is aff. defense that Defendant engaged in the proscribed conduct because he was coerced by use or threatened imminent use of unlawful physical force *upon him or a third person which force a person in his situation, one of reasonable firmness, would be unable to resist. Not available if person intentionally or recklessly places himself in situation in which it is probable he will be subject to duress. Defendant isn't denying he did crime, he is denying he had intent to do it. Not voluntary. To rebut - prosecution may bring in evidence to show past crim. conduct - tends to show there was intent. Entrapment ?40.05 - Defendant may say it is an aff. defense that he engaged in the proscribed conduct because he was induced or encouraged to do so by a public servant who was seeking to obtain evidence against him for purpose of criminal prosecution and where the methods used were such that they created a substantial risk that the defense would be committed by a person not otherwise disposed to commit it. Obj. 2 Elements: l) Gvt's encouragement must be active. Gov't overreaches and it is such a way that any reasonable person may succumb just to get them off back. 2) Have to look at the Defendant. Does he have a predisposition to commit a crime that Gov't is merely turning into - if so Gov't is only affording the person an opportunity to commit-no relation . Justification Defense* * Once you reach this your behavior is lawful. ?35.05 - Part of Justif. -generally- Necessity - Justification - Value society will get from conduct. to encourage. ex: Behavior try protect yourself from violent attacks,protect your home. The activity is a crime but the law excuses it because it benefits society. Necessity Conduct which would be an offense is justifiable when - there is an emergency and conduct is necessary to avoid imminent public or private injury which is about to occur in a situation of no fault of actor. Before this defense can be raised, CT must make a preliminary determination about the necessity of emergency. ex: spreading a fire, bar fight. choice. I. Public Policy - want people to make a right Justification Use of Physical Force - Use of physical force upon another person which would otherwise constitute an offense is justifiable and not criminal if: l)parent or guardian of child - can use physical force to maintain discipline or promote welfare - never deadly force. Usually in situation where people have reason for others Warden - physical force to maintain order Common Carrier - physical force to maintain order but can use deadly physical force Dr. - physical force in treatment and in emergency situation if he believes it necessary. Person can use physical force to defend himself or a 3rd about larceny, crim. mischief or to capture a person from prison. Self Defense - Use of physical force in defense of a person. May use it if he reasonably believes such to be necessary to defend himself or a 3rd person from what he reasonably believes to be use or imminent use of unlawful physical force by such person. 2 objective - l) need a reasonable belief other person is using force, 2) need to have a reasonable belief force is necessary to stop him. Exceptions Defendant conduct provoked other person to injure a 3rd party. Actor was initial aggressor and his use of physical force is never justifiable unless he has withdrawn ex: and communicates his withdrawal to other person. Deadly Physical Force Can use deadly force if have a reasonable belief it is about to be used on you. May not use deadly physical force if you can retreat safely. 2 exceptions to retreating. l) person in home and not initial aggressor, 2) police officer. Self-Defense ?35.l5 Use of physical force sets higher standard for use of deadly physical force. Retreat in connection with requirements dealing with deadly physical force - if actor knows he can retreat in complete safety - he can't use deadly physical force. However, if he is in his dwelling, doesn't have to retreat. Goetz more detailed description of standard Obj. nature of standard - but does take into account particular nature Defendant finds himself in and past experiences of Defendant. MPC is more subjective. *Reasonable person BUT can take into account characteristics of person. pg.802. Liquori Way law was before change in MP law. If were in a situation as an innocent victim of attack, you were subject to deadly physical force being used, had to respond to this - without any duty to retreat. Castle Doctrine - NY Statute - Person occupying dwelling may use deadly physical force to stop burglary if he believes it reasonable. If you are within own dwelling - notion of having no retreat is not applicable. Defense of Habitation - spelled out in NY Statute - where use of deadly physical force can be used (?doesn't speak of danger but there is still a test of reasonableness implied (reasonable belief) ?35.20 Para. 2 - Can use deadly physical force to prevent arson not limited dwelling. Anyone can. ?35.20 ?32.52 criminal to those who occupy Based on Sanctity of One's Home. Use of physical force to prevent mischief with respect to property larceny or other than premises. Other Defenses Entrapment Defense 2 lines of opinion as to where focus should be in deciding if defense should be allowed and to what measure it should be. A person who had no conception of criminal activity but was provided and educated to point where his activities really stem from and are generated by gov't. This case really, a lack of inclination to take part by Defendant. Both elements of entrap l) What does gov't do - are they overreaching being so over zealous in their approach. ex: Gov't agent calls someone in and engages in a long conversation and person goes along just to get him off his back). This is objective std. for entrapment - is behavior such that reasonable person would succumb simply because techniques used are more than would expect a reasonable person to avoid. 2) Sub element - focuses on Defendant. Is it this individual who had no predisposition - was basically innocent. I whose ability to resist was overcome. Does Defendant have a predisposition to commit crime which govt is merely turning into? This predis. may turn up in prior behavior etc. and if it is there, govt merely provides an opportunity. This doesn't violate standard. NY?40.05 creates a defense based on what govt did. Aff. defense - Defendant has to move forward. Classic confession and avoidance defense (admit to elements of crime but disclaim crime. intent - Everything was done but done to satisfy agents of govt. How does this come about? l) Work of govt agents or people on behalf of them - trying to prosecute target individual. 2) Through use of methods which create a substantial risk the target Defendant would commit a crime. Defendant disclaims crim. intent - This opens possibility by way of rebuttal by govt to counter arg. Defendant wasn't predisposed to crime. Can show inconsistent prior conduct by Defendant. Factors Cts have looked at: 1) have police manufactured a crime that otherwise wouldn't have happened OR have they involved themselves in some ongoing crim activity. 2) Whether police themselves took part in crim. or improper conduct which in some way itself repugnant (not talking about sting operations - talking about illegal activities such as placing evidence where it can be available to Defendant) 3) Was Defendant's reluctance as displayed by agents, overcome by appeals to sympathy, past friendship or some persistent solicitation - in face of Defendant's unwillingness. NY Crim. Procedure Law Vehicle for general remedial action by Cts. - to extent there is conduct which Cts. believe constitute serious misbehavior by Govt. It may further dismiss charges (in addition to entrapment defense). (If Defendant is predisposed, entrapment may not apply but if govt act is so harmful it may be worth a separate determination. * hard judgement to make. speaks of Active Inducement. method about entrapment. Infancy ?30, pp.2 Create host of serious crimes for people who would otherwise be treated as juveniles now, by statute, they are treated as adults. Burglary CL Special concern to keep people secure in homes. Through crime of burglary - any attempt for breaking that sanctuary should be treated as harsh. Illegal entry with specific intent constitutes burglary (even if don't take anything). CL added in element of entry at night. (?) Merely affording ? person This was way of dealing with fact that attempt at treated rather leniently. Didn't matter what crime was to take place. matter now. Doesn't * NY Statute - 3 degrees define. Knowingly enters or remains unlawfully (knowingly enters unlawfully or knowingly remains unlawfully) in a building with intent to commit a crime. 3rd degree - person goes into a building or real property (remains unlawfully in building. at CL had to force way in. Not time now. at CL had to take place at night - not time now. 2nd degree - more serious - weapon involved, injury occurs. Fact that building is someone's dwelling in and of itself makes it a more serious degree. * If he knowingly enters or in law remains - and - he and another is armed if weapon or causes physical injury. lst degree - combine weapon and causing injury with fact it is someone's dwelling. It is most serious form of all. Entry is important. If enters premises with license or believing they have license, they are missing one key element of burglary - they are entering knowingly unlawfully. Not necessary for prosecution to specifically show what crime have to commit. Crime is committed with entry itself. If target crime couldn't be committed (painting to be gone) burglary still exists (?) because l) unlawfully enter or remain 2) spec. intent. Law unity between two. Don't have to actually do the crime. Arson - intentional based crime Different from CL - dealt with burning dwelling place essentially - any burning of property (crim.,neg., reckless). ?l50 up. pins it to unintentional behavior. Factors drive crime stolen is knowingly, looks for underlying