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									                                  Podgor/Criminal Law
                                Class Outline/Spring 2000

     Actus Reus + Mens Rea + Causation + Attendant Circumstances ( - Defenses) = Crime

     Recommended approach to an exam fact pattern from Podgor:
           1. If on appeal, what is the vehicle?
           2. was there an actus reus
           3. analyze the statute
           4. apply the facts to the statute
           5. what was the mens rea? Or was it S/L offense?
           6. Is D pleading mistake of law or mistake of fact or other defense?
           7. What kind of punishment theory should apply?
           8. Prosecutorial discretion? Which offense should be charged and on what theory?

     Four parts to this course according to Podgor:
              1. general rules in the above formula
              2. application of the rules to actual crimes
              3. inchoate crimes and principles that can make a person other than the main actor
              4. defenses to crimes.

I.   Overview/Punishment/Legality
     A. Jury nullification (Prof. Butler/african american)
             Policy argument, it helps express the “conscience of the community”
             State v. Ragland

     B. Proportionality of punishment
             What we learn from the discussion of proportionality is the power of persuasion
             Is disproportionate punishment “cruel and unusual” per the 8 th amendment?

             Coker v. Georgia

             Harmelin v. Michigan
                    Three factors relevant to determining if punishment is proportionate to crime:
                         1. the inherent gravity of the offense
                         2. the sentences imposed for similarly grave offenses in the same
                         3. sentences imposed for the same crime in other jurisdictions

     C. Purpose of punishment:

             1.   Deterrence (a utilitarian concept)
                       a. specific
                       b. general
             2.   retribution/revenge(retrospective)
             3.   rehabilitation/reform (prospective)

     D. 4 vehicles used to raise legal questions on appeal:
             1. jury instructions
             2. constitution
               3 . sufficiency of the evidence beyond a reasonable doubt (?)
               4. submission of evidence (was it submitted properly?) not covered by Podgor usually

      E. Statutory Interpretation

          Starting premise is that a statute is constitutional. To show it is not, look at the application of
          that statute. Also look at the following factors laid out in In re Banks:

               1.    purpose of statute as a whole
               2.    phraseology, words ordinary or technical
               3.    law as it prevailed before the statute
               4.    mischief to be remedies
               5.    remedy
               6.    end to be accomplished
               7.    statutes in pari materia
               8.    legislative history of an act and circumstances of its adoption
               9.    earlier statutes on the same subject
               10.   common law as it was understood at the time of the enactment of the statute
               11.   previous interpretations of the same of similar statutes.

               Rule of lenity: when in doubt, choose the reading that favors the defendant.

          F. 6 constitutional arguments for substantive criminal law:

                         (Ie, constitutional arguments a defendant could make to argue against him being

               1.    statute is overbroad
               2.    statute is vague
               3.    rule of lenity
               4.    8th amendment
               5.    ex post facto (statute and application can’t be ex post facto)
               6.    bill of attainder (if statute declares specific person is guilty and subjects them to
                     punishment w/o trial – automatic guilt is a violation of this bill)

II.   Actus Reus
      Voluntary physical act must be found in every crime regardless of whether statute says it or not.
      Mere thoughts are not an act
      See Model Penal Code for what isn’t an act

      When is failure to act/omission considered voluntary act?

      People v. Beardsley
      Hotel, lover, morphine, death, D no physical act led to her death…mere omission to help and
      that’s not a problem b/c he was under no legal duty to help her (she wasn’t his wife)

      Omission to act may establish actus reus if first establish that D had a legal duty to act. Legal
      duty may be based on:
              1. relationship
              2. contractual
              3. assumption of duty to care
              4. statutory
              5. voluntary care and secluded the person
       Kitty Genovese case; Cash/Strohmeyer case

       Attendant Circumstances

III.   Mens Rea
       2   interpretations:
           1. broad = culpability; guilty mind; vicious will; immorality of motive; morally culpable
               state of mind
           2. narrow = elemental; based on elements as specified within definition of crime/statute

       Intent may be inferred from the circumstances.

       Types of intent:
               Some crimes require specific intent and some only general intent.

               A. General Intent
                      All crimes require general intent which is an awareness of all factors making up
                      the crime. A jury can infer general intent from the doing of the act. General
                      moral culpability like this was all that was required originally at common law.
                      Examples include: Rape, Murder, Battery, Involuntary Manslaughter
               B. Specific Intent
                      Requires not only doing the act, but doing it with a specific, particular, mental
                      state intent to commit the crime. Existence of the specific act can’t be inferred
                      from the doing of the act. Certain defenses such as voluntary intoxication and
                      mistake of fact only apply to specific intent crimes. (?) Examples include:
                      Robbery and larceny, premeditated murder, attempt ,solicitation, assault,
                      forgery, false pretenses, embezzlement.
               C. Transferred intent
                  can get you to Mens Rea

               D. No intent
                      Strict Liability offenses: (malum in se v. malum prohibitum = conduct
                  inherently wrongful v. conduct wrong b/c prohibited)

                    Public welfare offense doctrine: criminal liability attaches to those offenses w/o
                    regard to fault if the actor’s conduct involves minor violations of:

                    1.   liquor laws
                    2.   pure food laws
                    3.   anti-narcotic laws
                    4.   motor vehicle and traffic regulations
                    5.   sanitary
                    6.   building and factory laws
                    7.   and the like…

                    These types of offenses have certain characteristics as outlined in Staples:

                    1.   they regulate dangerous or deleterious devices or products or obnoxious waste
                    2.   they “heighten the duties of those in control of particular industries, trades,
                         properties or activities that affect public health, safety or welfare
                    3.   they depend on no mental element but consist only of forbidden acts or
    How to discriminate:

    1.   if punishment of the wrongdoer far outweighs the regulation of the social
         order as a purpose of the law in question, mens rea is probably required.

    2.   If the penalty is light, involving a relatively small fine and not including
         imprisonment, mens rea is probably not required.

    There is a presumption against S/L. Podgor loves these factors. Court may consider:
    1. that the crime is not derived from the c/l
    2. that there’s an evident legislative policy that would be undermined by a mens
        rea requirement
    3. that the standard imposed by the statute is “reasonable and adherence thereto
        properly expected of a person”
    4. that the penalty is small
    5. that the conviction doesn’t gravely besmirch

(Blackmun in Holdridge v. U.S.)

E. Intent under the Model Penal Code:
   There are four levels of culpability outlined in the Model Penal Code:

    1.   purposely (highest level)
                 conscious object to engage
                 involves attendant circumstances
         2. knowingly
                 aware of his conduct
                 practically certain
         3. recklessly
                 consciously disregards a substantial and unjustifiable risk
                 gross deviation
                 applies to material but not immaterial elements
         4. negligently
                 aware of a substantial and unjustifiable risk

*Note: The jury makes the decision as to whether something was done with which level
of intent. If a statute says negligently, but the person acted with a higher level of
culpability, that will still suffice to establish mens rea – but not the other way around.
The most difficult to distinguish between is knowingly and recklessly.

Always start with the question of whether the required mens rea is stated in the statute
before you determine whether the crime should or should not be considered a strict
liability crime, and then analyze why it should go one way or another. It’s always an
issue of balancing the facts which weigh for/against strict liability. Remember though
that strict liability is disfavored, so when in doubt – vote against strict liability.

Most states regard statutory rape as a strict liability offense – this is an exception to the
general rules, and Podgor thinks it still has a mens rea requirement wrt the sexual act, if
not the attendant circumstances, ie the age of the victim.

F. Defenses to Intent

    1.   Mistake of fact
A. Common Law Jurisdiction:

               i) The first step in analyzing a mistake of fact claim
               in a jurisdiction that follows the common law
               doctrine is to identify the intent requirement in the
               crime for which the D is being prosecuted:
                         a. is it a strict liability offense?
                         b. Does it require specific intent?
                         c. Does it require general inent?

               ii)The second step is to determine whether the
               defendant acted in good faith.

               iii)The third step is to determine whether that good
               faith belief was reasonable or unreasonable.

                   iv)If Specific Intent, the mistake of fact claim
                   will usually relate to the specific intent portion of
                   the offense. In rare cases, the D will assert a
                   mistake of fact claim pertaining to the general
                   intent portion of a specific intent offense.

                   v)If general intent,

                        a)the ordinary common law rule is that a
                   person isn’t guilty of a general-intent crime if his
                   mistake of fact was reasonable, but he is guilty if
                   his mistake was unreasonable.

                        b) the moral wrong doctrine is a departure
                   from the previous rule and is most often applied
                   in prosecution of sex offenses and crimes against
                   family interests. It says that there shouldn’t be
                   any exculpation for mistake when if the facts
                   were as the actor believed them to be, his
                   conduct would still be immoral. Controversial
                   doctrine because:

                              1.   not all immoral conduct is illegal,
                                   permits the conviction of a person
                                   who didn’t know and had no reason
                                   to know his conduct would violate
                                   the law.
                              2.   Founded on the premise that it’s
                                   fair to punish a person for
                                   unintentionally committing the
                                   actus reus of an offense.
                                   Sometimes it is an inaccurate
                                   conclusion to assume that people
                                   know when their conduct violates
                                   social mores.
                              3.   the legal wrong doctrine less
                                   extreme alternative to the moral
                                   wrong doctrine – this is same
                                   theory just substituting the word
                                                  legal for moral. Ie, if a person
                                                  commits a crime knowing it is a
                                                  crime, but believing it is a lesser
                                                  crime, he can be convicted of the
                                                  higher crime. This may result in
                                                  punishment grossly
                                                  disproportionate to the offender’s

     B. Model Penal Code Jurisdiction:

             2.04 provides that a mistake of fact is a defense if it negates the mental
                  state required to establish any element of the offense. It is
                  irrelevant whether the offense would be identified as a general
                  intent or specific intent at common law. One exception is that the
                  defense of mistake of fact is NOT available if the actor would be
                  guilty of another offense had the circumstances been as he
                  supposed. This is really a variation on the legal wrong doctrine at
                  common law – but , unlike that doctrine, the Code only permits
                  punishment in that case at the level of the lesser crime. According
                  to Podgor, the MPC doesn’t distinguish between mistake or fact or
                  law w/some exceptions. The whole point of the MPC was to
                  simplify some of this.

             Navarro case

2.   Mistake of Law

             A. Common Law:
                   Ignorance of the law excuses no one. The most plausible
                   explanation for this general rule is pragmatic and utilitarian
                   and comes from Holmes – sometimes you have to sacrifice the
                   individual for the public good. If it were allowed as a defense,
                   it would foster lawlessness by encouraging ignorace. But!
                   There are three exceptions to that general rule:

                               1.   reasonable reliance on an official interpretation
                                    of the law, later determined to be erroneous,
                                    obtained from a person or public body
                                    w/responsibility for the interpretation or
                                    administration or enforcement of the law
                                    defining the offense.

                                         Rationale for this exception is threefold:

                                         a.   threat of punishment can have no
                                              deterrent effect on an individual whose
                                              conduct has been authorized by an
                                              appropriate person/legal body
                                         b.   this person lacks moral culpability
                                         c.   prosecuting authorities should come to
                                              court w/clean hands; unfair to
                                              prosecute in this situation.

                                         Note: to be “official”, must be contained in:
                                       a statute later declared invalid
                                       a judicial decision of highest
                                        court in jurisdiction later
                                        declared erroneous
                                       an official/but erroneous
                                        interpretation from a public
                                        officer in charge of its
                                        interpretation or enforcement

                2.   “The Lambert Principle” of fair notice –

                         Under limited circumstances, a person
                         who’s unaware of a duly enacted and
                         published criminal statute may successfully
                         assert a constitutional defense if three
                         factors are present:
                                   a. the law that was violated only
                                       punished an omission
                                   b. the duty to act was imposed on
                                       the basis of a status, rather
                                       than on the basis of an activity
                                   c. the offense is malum
                                       prohibitum rather than malum
                                       per se.

                         *Note: the constitutional challenge is that
                         the person was deprived of due process via
                         lack of notice.

                3.   Ignorance or Mistake that negates the mens
                          In very rare cases, knowledge that the
                          prohibited conduct constitutes an offense is
                          itself an express element of the crime – so
                          may defend on the basis that D lacks
                          knowledge or misunderstands another law
                          which then negates the mens rea element in
                          the current offense. But, it matters if it is
                          specific/general or strict liability offense:
                                    a. specific intent: different law
                                        mistake (reasonable or
                                        unreasonable), is a defense if
                                        the mistake negates the
                                        specific intent.
                                    b. General intent: not a defense
                                        whether reasonable or
                                    c. Strict liability: not a defense
                                        whether reasonable or
                                        unreasonable. Logical b/c
                                        there’s no intent requirement
                                        here at all – so can’t be

B. Model Penal Code jurisdiction:
                                      1. In nearly all respects, the MPC codifies the reasonable reliance
                                      doctrine of the common law.

                                       2.also makes an exception wrt fair notice. D is not guilty of an
                                      offense if:

                                           a.   she doesn’t believe her conduct is illegal, and
                                           b.   the statute defining the offense is:
                                                1)not known to her
                                                2)not published or otherwise reasonably made available to
                                                her before she violated the law

                                           3.   The “different law” mistake is handled just like the
                                                claim for mistake of fact under 2.04 - see above.

                                           Marrero case

IV.   Causation

      Tort causation is not the same as criminal causation!

      There are two parts to causation in criminal law:
               1. Actual
                       Sine qua non
                       Cause in fact
                       “but for the D’s voluntary act, would the social harm have occurred WHEN it
                       The question will always be how far back does the chain go? Remember that
                       conditions are different from causation. In normal circumstances, conditions
                       aren’t enough.
                       Sometimes there’s more than one actual cause
                       Accelerating a result means both causers can’t be convicted (?). But - If either
                       alone is sufficient, concurrently sufficient, to cause death when it did – then both
                       will be guilty.
                       An obstructed cause may lead to attempted murder – that is someone’s efforts
                       obstructed such that offender’s actions didn’t lead to death as intended.
                       But, actual cause must be coupled w/proximate to charge. This narrows the
                       field of the prosecutable.
               2. Proximate
                   There are many possible intervening causes that may keep us from getting proximate

                   6 tests to determine if, when there’s an intervening act, proximate causation?)

                        a.   de minimus
                             is the initial action inconsequential to an enormous intervening act? If so,
                             then no proximate cause

                        b.   forseeability
                                 i)        responsive/dependent intervening cause
                                 ii)       coincidental
                            in either case, if the intervening act was foreseeable, proximate cause still
                       c.   intended consequences doctrine
                            first actor intends death but it doesn’t happen by him – but someone else

                       d.   dangerous forces come to rest
                            no longer threatened by first person but killed by someone else.

                       e.   voluntary human intervention

                       f.   omissions

              People v. Eulo

              Consider year and a day rule: That is, causation only if person dies w/in a year and a
              day of the injury caused by the D. Modern trend away from this.

     Burden of Proof
     When is it on prosecution when on defendant
     Burden of production v. burden of persuasion

V.   Actual Crimes
     1.   Homicide

          Some states divide the crime into categories. Need to know what those categories mean for
          the exam – but not the actual state statutes. Remember there are lawful killings such as the
          death penalty – so criminal homicide involves an unlawful killing…..look for the dead body
          before assuming a killing has occurred.

          A. Intentional Killings:

              1. Murder

                       Common law definition of = The unlawful killing of a human being with
                       malice aforethought.

                       Some jurisdictions separate the crime into different degrees.

                       Under statutory scheme of degrees, all murders are second degree unless
                       deliberate and premeditated killing. Premeditation may be as brief as the
                       twinkle in an eye – or may be much longer.

              2. Felony Murder

                       No mens rea required to convict of murder which makes it sound like strict
                       liability. And, like s/l, felony murder is disfavored in the law. First have to
                       establish what the felony was, then see if one of these limitations applies in your

                                1.   Inherently dangerous felony limitation
                                      sometimes you can only get felony murder if the felony is an
                                     inherently dangerous one. The question in these jurisdictions is
                                     what is inherently dangerous? Sometimes those felonies will be
                                     specifically listed in the statute. Or, there may be a definition in
                         the statute to tell you what is/isn’t inherently dangerous.
                         Sometimes, you’ll have to consider them in the abstract or in light
                         of the circumstances surrounding the felony. Things to consider
                         are whether the crime is or can be committed without danger to
                         human life.

                     2. The Ireland rule, merger limitation
                         The question is whether the felony was an integral part of and
                         therefore included in fact within the homicide such that it was
                         merged into the latter. If not, such as in some child abuse cases
                         where parent intended to beat but not kill the child, there’s no
                         merger. Rationale is that you don’t want to bootstrap every assault
                         into felony murder. Doesn’t seem to be applied in GA.

                         3. Causal relationship; res gestae limitation?
                         This limitation on felony murder states that the death must be a
                         consequence of the felony and not a coincidence. Killing must be
                         so closely related to the felony in time/place and causation – as to
                         make it a part of the same criminal enterprise.

                         4. Killing by a non-felon
                         “agency theory” of felony murder provides that the rule doesn’t
                         extend to a killing, even though it grew out of the commission of
                         the felony, if it is directly attributable to the act of one other than
                         the D, or those associated w/him in the unlawful enterprise. For
                         ex, if the adversary of the felony commits the homicidal act – no
                         fm. But, some follow the proximate causation approach which
                         makes a felon liable for any homicide that occurs during the
                         commission of the offense regardless of who actually did the
                         killing – if the killing was a proximate result of the felonious
                         activity in other words – doesn’t matter who did the shooting – the
                         felon should be responsible.

            ⇛Arguments against felony murder:
                     Criticism of felony murder centers on the fact that a person may be
                     punished for a fortuitous result – which violates the principle that a
                     person’s criminal liability for an act should be proportioned to his or
                     her moral culpability for the act.
            ⇛Arguments for felony murder:
                   1. deterrence: deters accidental death in commission of a felony
                   2. reaffirms the sanctity of human life
                   3. transferred intent: the felon’s intent to commit a felony is
                       transferred to the homicide
                   4. eases the prosecutor’s burden of proof re: malice aforethought
                       and intent.
3. Voluntary Manslaughter

    Common law definition = The unlawful killing of a person without malice, upon a
    sudden heat of passion due to reasonable provocation

    “Heat of passion”:
            Requires adequate provocation. Which is a question for the jury. Defined as:
            calculated to inflame the passion of a reasonable man and tend to cause him to
            act for the moment from passion rather than reason. The provocation defense is
             not available to a D who kills the victim after he has a reasonable “cooling off
             period”, ie, when a reasonable person in his situation would have cooled down.

             ⇛Arguments against the heat of passion defense:
                Reduces incentive to handle anger better
                Unfair to women b/c mostly men who kill this way; they are violent and
                 react to provocation differently than do women who tend to submit/blame
                 themselves – this gives men a defense not available to women.
                You may want to affix 2d degree murder instead of heat of passion or
                 voluntary manslaughter b/c of an unintentional killing when the following
                 elements are present:
                               1. extreme indifference to the value of human life. Often
                                   referred to as the “abandoned and malignant heart” or the
                                   “depraved heart”
                               2. awareness of the risks of the conduct of that the conduct
                                   was contrary to the law.

             ⇛Arguments for the heat of passion defense:
                Deterrence isn’t the only point of criminal law
                Another goal is to differentiate between more and less serious offenses; to
                 safeguard offenders against excessive disproportionate or arbitrary

             Common Law position on provocation:
                   In general, the old C/L rule that words aren’t enough is still followed
                   but is breaking down in some jurisdictions which allow the instruction
                   that the crime was mitigated when the words are informative and
                   not just insulting (ex: I killed your dog, rather than I hate you)

             Model Penal Code position on provocation:
                    Words alone rule doesn’t apply in these jurisdictions.
                    Extreme emotional disturbance is an affirmative defense and has a
                    subjective and an objective component:

                               1.   subjective: D must have acted under the influence of
                                    extreme emotional disturbance
                               2.   objective: there must have been a reasonable explanation
                                    or excuse for that emotional disturbance; the
                                    reasonableness of which is to be determined from the
                                    viewpoint of a person in the D situation under the
                                    circumstances as the D believed them to be.

B. Unintentional Killings:

    1. Involuntary manslaughter

                      Death caused by criminal negligence or an unlawful act that isn’t a

                      An unintended homicide that occurs during the commission of an
                      unlawful act but not a felony, constitutes common law involuntary
                      manslaughter.a.k.a. “misdemeanor manslaughter” – some jurisdictions
                      limit this to inherently dangerous misdemeanors and some distinguish
                      between mala in se and mala prohibita.
     C. Model Penal Code

         Recognizes three forms of criminal homicide:

         1.   murder
              When the actor unfustifiably, inexcusably and in the absence of a mitigating
              circumstance, kills another purposely, knowingly, recklessly or negligently. There
              are no degrees of murder under the MPC. It is a felony of the first degree and carries
              a minimum sentence of 1-10 years and a maximum of death or life in prison.
              The MPC has abandoned the C/L element of malice aforethought
         2.   manslaughter
         3.   negligent homicide

2.   Assault/Rape

     A. Assault

         1. Common law:

                  Mayhem = originally a common law felony consisting of injury permanently
                  impairing the victim’s ability to defend himself or to annoy his adversary

                  Battery = a common law misdemeanor of far broader scope covering any
                  unlawful application of force to the person of another willfully or in anger.
                  Force not limited to actual violence but included any kind of offensive and
                  unlawful conduct such as lack of consent in unwanted sexual advances

                  Assault = originally simply an attempt to commit a battery.

         2. Model Penal Code 211.1 :

                  Substantially restructures the prior law in this area. Eliminates the common law
                  categories in favor of a single integrated provision.
     B. Rape

         Statutes vary wrt the following elements:
                  1. degrees
                  2. age of victim
                  3. forcibly or without consent (on whom to place the focus)
                  4. against will
                  5. gender of victim or neutral
                  6. spousal defense?

         Consider as a prosecutor why degrees may or may not make it easier to get convictions.
         Many prosecutors argue they help get convictions.

         Consider the policy considerations that distinguish the crime of rape from something like

3.   Theft

     Most jurisdictions follow the Model Penal Code and have a consolidated theft statute which
     relieves prosecutor of having to choose the right type of theft crime to charge the person with.
     Variety of “theft-related crime” include: burglary, larceny, embezzlement, robbery, false
     pretense, larceny by trick.
            A. Common law elements of the crimeof larceny:

                  The structure of most cases in theft today include the following elements, traditionally of
                       a. trespassory taking (“caption”); implies that possession is required
                       b. and carrying away (“asportation”)
                       c. of personal property
                       d. of another person
                       e. with the intent to permanently deprive

                B.Common law elements of the crime of burglary:

                  a.   breaking and
                  b.   entering
                  c.   of the dwelling house
                  d.   of another
                  e.   at night time
                  f.   with the intent to commit a felony therein.

            C. Common law elements of the crime of embezzlement:

                  a.   fraudulent conversion
                  b.   of property
                  c.   of another
                  d.   by one who is already in lawful possession of it

                  Examples include bank employees who have been given money lawfully but then
                  fraudulently convert it.
                  Entrustment is the key here, and is usually required.

            D. False Pretense
               Title and possession obtained by fraud

            E. Larceny by trick
               Posssession by fraud, but not title.

            F. Robbery
                  generally larceny plus assault. Larceny from a person or presence of another, by
                  force or fear.

VI. Inchoate Crimes/other principles of liability

       1.   Attempt

                 Jurisdictions differe wrt how they evaluate “attempt” – these tests are used:
                  a. physical proximity
                            how close is t the potential bank robber to the bank?
                  b. dangerous proximity doctrine : the Holmes test
                            a two part test weighing the gravity of the danger involved and the probability
                            that it will occur
                  c. indispensible element test
                            does the bank robber have the actual means to commit the offense?
                  d. probable desistance test
                   the potential criminal must have reached the point of no return such that it is
                   unlikely he would turn around and not commit the crime
         e.   abnormal step
                   they are all abnormal steps – so this test seems kind of illogical. It’s not how far
                   the person has gotten, but that they have progressed beyond the point where
                   normal citizens would think better of it and desist
         f.   res ipsa loquitor or unequivocality test
                   what the person has done speaks for it self; unambiguous
         g.   last act test
                   no jurisdictions adopt this test; but It has been used historically and looks for
                   whether the person has advanced to the last act right before the crime
         h.   substanstial steps – the MPC test
                   has the person taken “substantial steps” toward the crime?

                  These tests can be broken into two philosophical viewpoints. A,B,C and G look
                  at what remains to be done. D, E, F, and H look at what has already
                  occurred – how far has the D gone toward committing the crime.

         Looking at preparation v. perpretration
         Attempt requires intent
         Mere preparation is not enough!

    Defenses to charge of attempt:

                  1. legal impossibility:

                          Podgor says there are three types of “impossibilities” to consider:
                          (don’t confuse w/mistake of law)
                          Q: what’s the difference between the legal and factual?
                          a. legal
                                   under the common law, this was a defense – but probably not
                                   today. Trying to hunt a deer out of season by shooting a
                                   stuffed animal; shooting a corpse believing it to be alive
                          b. factual
                                   not a defense under the common law, and not today. Ex:
                                   pickpocket putting hand in empty pocket.
                          c. true, or pure, legal impossibility
                                   if it’s not a crime in the first place, you may have a defense;
                                   ex: if you are fishing w/o a license but the state doesn’t require
                                   a license – true legal impossibility to have committed a crime.
                                   Ex: throwing steak into garbage can; selling bootleg liquor
                                   after repeal of prohibition even if you didn’t know of repeal.
                  2.   abandonment:

                            Must be a voluntary and complete abandonment of the attempted crime.
                            Abandonment b/c you think you’re going to get caught isn’t voluntary.

3.   Solicitation
         a. Encouraging, asking, inducing, commanding, requesting another person to commit a
              crime with
         b. the intent that the other person commit the crime. The crime is over w/the asking.

             Defense to solicitation:
                  1. the person completely and voluntarily renounces his criminal intent.
                  2. either persuades the solicited party not to commit the offense or otherwise
                  prevents him from committing the crime.
4.   Conspiracy

         Elements of the crime:
                1. 2 or more people; plurality
                2. agreement
                3. unlawful objective
                4. knowledge and intent
                          two types of intent required:
                                  a. intent to combine w/others
                                  b. intent to accomplish the unlawful objective

            Learned Hand called conspiracy the “darling of the prosecutor’s nursery”,
                 1. it is an inchoate crime:, it expands the relevant evidence to establish guilt
                      by association. Remember “swans don’t swim in the sewer”.
                 2. Hearsay evidence: It makes comments by a co-conspirator made during the
                      course of/and furtherance of conspiracy, admissible (this is dynamite for a
                           Even an unindicted, uncharged co-conspirator can contribute to another
                           person’s conviction.
                 3. allows joinder at trial; and
                 4. expands the venue options because the prosecutor can choose any place
                      where an act of the conspiracy occurred;
                 5. also, assuming no merger, you might get 2 charges out of it – one for the
                      conspiracy and one for the substantive crime. This is especially important if
                      the substantive crime has lesser punishment than the conspiracy.

            The criminality being punished w/conspiracy is the organization. Agreement is the
             only essential nature of the plan. Doesn’t have to be written, doesn’t have to be oral
             – even the wink of an eye or the nod of a head works as long as it’s understood by
             the parties involved in the agreement. Two people united to commit a crime are more
             dangerous than one or both of them separately planning to commit the same offense
                  1. less likely to abandon
                  2. more efficient
                  3. more complexity is possible
            Knowledge of an agreement isn’t enough. You must have knowledge of the
             essential nature of the plan as well as - You must be part of the agreement.
            Whether unilateral or bilateral agreement is sufficient is a jurisdictional issue. Look
             at the statute itself first to determine whether the legislature intended uni/bi – some
             are clear on the face, some aren’t. MPC is unilateral.
            Mere presence is not enough.
            Pinkerton rule; you can be charged with a substantive crime you didn’t commit; ex:
             the getaway driver charged with the bank robbery.
            MPC = requires merger of conspiracy into the substantive crime. At common law,
             no merger

18 USC 371 = the generic conspiracy statute in the federal code which is used most often.
Conspiracy is also more prevalent in the federal system.
        2 parts to the statute:
                  1. specific crime conspired
                            an overt act may also be required – but not for drug conspiracies
                  2. conspiracy to defraud the government
                          ex: defense procurement; filling out forms for gov’t and not filling in
                          certain blanks.

Structure of Conspiracies: Wheel v. Chain

        A. Wheel:
                One person is the hub; that person transacts illegal dealings w/various other
                persons/groups who serve as the spokes.
                There must be a rim around the wheel; a shared, single, criminal objective –
                not just sumilar or parallel objectives between similarly situated people.
        B. Chain:
                Several layers of people dealing w/a single subject matter. Easier to prove than
                wheels. Each link must successfully perform. The longer the chain the more
                tenuous the relationship between the distant links.

        To evaluate which you are dealing with, consider the following elements:
                1. the nature of the criminal activity
                2. the number of D
                3. the size of the business
                4. the extent of contact between the parties.

Defenses to Conspiracy:

                Common law = neither factual nor criminal legal impossibility is a defense to a
                criminal conspiracy. People who conspire to commit crimes are dangerous even
                if their conduct would be fruitless.
                MPC = no defense of factual or hybrid legal impossibility in conspiracy cases.

              Common law = usually, not a defense b/c the offense is complete when the
              agreement is made. But if it is a defense, courts are strict wrt proof of the
              abandonment Some courts require the person to have persuaded others not to do
              MPC = does provide an affirmative defense if the conspirator renounces and
              thwarst the success of the conspiracy under circumstances demonstrating a
              complete and voluntary renunciation of her criminal intent.

        Common Law Wharton’s Rule:
             An agreement by two persons to commit an offense that, by definition, requires
             the voluntary participation of two persons, can’t be prosecuted as a conspiracy.
             Ex: adultery, bigamy, incest, dueling, contraband, receipt of a bribe.

                Rule is now considered a judicial presumption to be applied in the absence of
                legislative intent to the contrary.

                2 exceptions:
                         1. third party exception = if more than the minimum number of
                              persons necessary to commit an offense agree to commit the crime
                              – the rule is not triggered.
                         2. If the two people involved in the conspiracy aren’t the two people
                              involved in committing the substantive offense.

        Legislative Exemption:
                  Common Law = a person can’t be convicted of conspiracy to violate an offense
                  if a conviction would frustrate a legislative purpose to exempt her from
                  prosecution for the substantive crime.
                  MPC = person can’t be prosecuted for conspiracy to commit a crime under the
                  code if she would not be guilty of the consummated substantive offense either:
                           a. under the law defining the crime
                           b. as an accomplice in its commission
                           Ex: male and underage female have sex, girl can’t be convicted as an
                           accomplice in her own victimization; also pregnant woman can’t be
                           convicted as an accomplice in criminal abortion of own fetus.

5.   Liability for conduct of another/Accomplice liability/Vicarious Liability

         Consider the difference between vicarious and strict liability.
         There is always a strong argument against vicarious liability.

         At common law, there are four possible pairings between individuals:
                1. principal in 1st degree
                    principal in 2nd degree

                  2.   accessory before the fact (if not present at crime)
                       accessory after the fact

                  3.   innocent instrumentality
                       principal in the 1st degree

                  4.   dead principal; can’t try principal in 2d degree – unless he killed the

         Natural and probable consequences test for accomplice liability: (jurisdictional split,
         some accept – some don’t) check Dressler Understanding on this -

                  1.   did D commit a crime
                  2.   did Accomplice intentionally assist in the commission
                  3.   did D commit another crime
                  4.   were these crimes reasonably foreseeable consequence of the first crime
                       although A never intended it?

6.   Entrapment

         Essentially a two pronged test:
                  1. criminal design originated w/law enforcement
                  2. D not predisposed to commit the Crime
                           a. majority rule = this is a subjective test; was he predisposed?
                           b. minority rule = this is an objective test; look at the gov’t
                               inducement and ask whether an innocent person would be induced
                               to commit the crime by the officer’s acts.

         Jacobson child pornography case. The key test is predisposition prior to law enforcement
         involvement. Also look at timing – did the person DO it before or after police

         Prior to Jacobson, predisposition was an objective test. Podgor says it’s a subjective test
         now – which allows you to use evidence of D prior record to establish predisposition.
VII. Defenses – can you subtract something from the formula?
      Two overarching categories:

               1.   Justification = behavior itself isn’t a crime
               2.   Excuse = behavior is a crime but morally non-blameworthy due to the circumstances

      1.   Self-defense (justification or excuse)

                       a.   triggering condition (imminent threat)*
                       b.   necessary and
                       c.   proportional response

               Note: a strict application of the imminency requirement may result in unfairness in
               battered woman cases.

               Possible Limitations:

                        1) An aggressor has no right to a claim of self-defense. Aggressor is defined as
                        “a person whose affirmative unlawful act is reasonably calculated to produce an
                        affray foreboding injurious or fatal consequences”
                        A person is not an aggressor, regardless of how provocative his actions are, if
                        his actions are lawful.

                        An aggressor can purge himself of the status and regain the right of self-defense
                        if he successfully communicates his retraction through either express or implied

                        2) Duty to retreat?
                        The no-retreat rule is applied in most jurisdictions. But, a minority still require
                        the victim to retreat rather than use self-defense/stand their ground. But, even
                        in a retreat jurisdiction, you may have a castle exception to the duty to retreat.

                        The no-retreat rule in the majority is justified on various grounds:

                                 a) law shouldn’t denounce conduct as criminal when it accords w/the
                                    behavior of reasonable men.
                                 b) Right should never give way to wrong
                                 c) To require retreat would reward aggressors, and innocent people if
                                    required to retreat might be killed while retreating.

                        May be considered as excused:

                                 a) because but for the attacker’s behavior…
                                 b) the aggressor’s actions manifest the bad character
                                 c) the innocent actor has no other choice

      2.   Defense of others (justification)

               Martin case (prisoners)

                        The modern test for when an actor is justified in using force against another to
                        protect a third person is stated in this case – and is a two-pronged test:
                   1) a reasonable person in the actor’s position would believe his intervention to
                      be necessary for the protection of the third person
                   2) in the circumstances as that reasonable person would believe them to be, the
                      third person would be justified in using such force to protect himself

         Old C/L = some kind of status relationship was required to raise the defense and it had to
         be viewed form the perspective of the person to be saved. The helper had to be aware he
         was acting at his peril – b/c he might be wrong if he thought the person thought
         intervention was necessary – but they actually didn’t.

3.   Defense of property/habitation

         Trap gun cases

         3 different views:

                   a) C/L view
                          deadly force could be used if you reasonably believed such force was
                          necessary to prevent imminent/unlawful entry of your property or
                   b) Middle view
                          Can use deadly force if you reasonably believe the other person is
                          making an imminent/unlawful entry and that the intruder intends to
                          injure you or commit a felony therein.
                   c) Narrow View
                          You can use deadly force if the other intends an unlawful/imminent
                          entry and the intruder intends to commit a forceful felony therein or kill
                          the occupant. (theft is not enough with this view)

4.   Necessity

     A utilitarian defense in that society doesn’t benefit from the criminal act if it can’t abate the
     threatened harm.

     Choice of evils. For the defense to be warranted:

         1.   D must be faced w/clear and imminent danger, not one debatable or speculative
         2.   D can reasonably expect that his/her action will be effective as the direct cause of
              abating the danger
         3.   There is no legal alternative which will be effective in abating the danger
         4.   The Legislature hasn’t acted to preclude the defense by a clear and deliberate choice
              regarding the values at issue.

     Balancing test of whether the D actually chose the lesser of two evils. Such as trespass to use
     a phone to notify police of dangerous fire.

     Civil disobedience can be broken down into:

         1.   Direct
              Actually doing the act to protest it. (sit-ins at lunch counters to protest segregation at
              lunch counters)

         2.   Indirect
              Doing something else to protest something. (storming IRS office to protest US
              policies in El Salvador). Schoon case says Indirect Civil Disobedience can never be
              defended as necessity.
5.   Duress (excuse)

     If found, generally results in acquittal of any offense except murder. Elements of the defense

         1) another person threatened to kill or grievously injure the actor or a third party (threat
            of deadly force from a human; threat directed at family member of D is also usually
         2) The actor reasonably believed that the threat was genuine
         3) The threat was present/ imminent and impending at the time of the criminal act.
         4) There was no reasonable escape from the threat except through compliance with the
            demands of the coercer
         5) The actor was not himself at fault in exposing himself to the threat.

         At C/L = a coercer is a principal in the 1st degree who used the coerced party as her
         innocent instrumentality in committing the offense.

         Best considered an excuse rather than justification because it’s not a lesser of two evils
         situation. Policy/punishment theories underlying why we should allow this defense?
                   a) threat of punishment is ineffective when someone is under this kind of
                       duress ; and the D is actually a victim himself (utilitarian)
                   b) coerced actor doesn’t deserve to be punished (retributive)

         Key issue is not that actor was deprived of free will, but that he was deprived of an
         opportunity to exercise his will to act lawfully.

         Duress says only that the person shouldn’t be blamed, not that the act was right..
         Necessity says that the action was right/at least tolerable/ and non-wrongful.

         Prison = if necessary or duress defense used for escape, most jurisdictions require the
         escapee make bona fide effort to surrender or return to custody as soon as the claimed
         duress or necessity has lost its coercive force.

         MPC on duress:

                  It’s an affirmative defense to unlawful conduct if :
                  a) D was compelled to commit the offense by the use or threatened use of
                        unlawful force by the coercer upon her or another person
                  b) A person of reasonable firmness in her situation would have been unable to
                        resist the coercion.

                       *unavailable if the person recklessly placed herself in the situation where it
                       was probable she would be subjected to coercion. Still available if
                       negligently placed herself there.

                  Broader than C/L duress defense b/c:
                          a) abandons the requirement of deadly force and imminency
                          b) general applicability so could be raised in murder prosecutions
                          c) doesn’t require imperiled person to be the D or a member of her

                  Similar to the C/L in that:
                             a) limited to threats or use of unlawful force which by definition
                                limits the defense to physical and not natural forces
                             b) doesn’t recognize the defense when any interest other than bodily
                                integrity is threatened.

6.   Cultural defenses

     Didn’t cover in class

7.   Intoxication (excuse)

     Defined as “a disturbance of mental or physical capacities resulting from the introduction of
     any substance into the body”. NO distinction between alcohol or drugs.

     Rarely serves as a basis for acquittal due to the social damage caused by intoxicated actors.
     Modern trend has been to restrict the scope or even abolish the defense completely.

     Ask three questions when you see that a person is intoxicated/taken meds or alcohol in a fact
          1) How did the person become intoxicated?
              a) voluntary/self-induced

                             usually no defense. Unconstitutional to make status of addiction a

              b) involuntary/innocent

                  4 ways to be involuntarily intoxicated:

                             i)      coerced
                                             induced by duress, compelled to drink against his will
                                             reason destroyed and couldn’t understand/appreciate
                                             the consequences of his act
                             ii)     pathological
                                             ingested intoxicant not knowing of their special
                                             susceptibility to its effects
                             iii)    by innocent mistake
                                             tricked or ignorant of the substance taken; ex; got
                                             wrong drug from pharmacist
                             iv)     unexpected resulting from ingestion of medically
                                     prescribed drugs
                                                      1. D doesn’t know or have reason to know
                                                           the drug will have this effect
                                                      2. The drug and not some others is cause
                                                           in fact of alleged criminal conduct
                                                      3. Due to involuntary intoxication; D is
                                                           temporarily insane

                             *Note: MPC recognizes 3 types of intoxication:
                                     1. self-induced
                                     2. pathological
                                     3. involuntary
                                        MPC allows exculpation on the basis of intoxication in the
                                        following situations:
                                                1) if it negates an element of the offense
                                                2) pathological and involuntary intoxication are
                                                      affirmative defenses if the actor meets the ALI
                                                      test of insanity?

         2) In what way does the D claim his intoxication affected his culpability?

                  1) not guilty b/c couldn’t form the requisite state of mind to be convicted
                  2) not guilty b/c unconscious and couldn’t have committed the actus reus
                  3) had the mens rea and was conscious but was insane due to the intoxication.

         3) Of what type of offense has the D been charged?

                  1.     strict liability
                  2.     specific intent
                  3.     general intent

8.   Insanity (excuse)

     An affirmative defense. D may have the burden of proof at trial of proving his insanity.

     A two pronged test:

         1) is the D competent to stand trial?

                  a) does she have sufficient present ability to consult with her lawyer, with a
                     reasonable degree of rational understanding and
                  b) does she have a rational and factual understanding of the proceedings
                     against her/charges against her

         2) Was the D insane at the time the crime was committed?

                  The answer depends upon what test is employed in that jurisdiction:

                              a) The M’Naghten test; “right or wrong test”
                                     1) party accused was laboring under such a defect of reason
                                     from disease of the mind
                                     2) as not to know the nature and quality of the act he was
                                     3) if he did know what he did, he didn’t know it was wrong

                                           Policy arguments against the test:

                                                    Focus on cognition;
                                                    restricts expert testimony to the point where it
                                                     may be considered “professional perjury” b/c
                                                     not allowed to provide all the facts.

                              b) The Irresistable Impulse; “control test”

                                        1) can’t overcome the will of a delusional mind
                                     2) abstractly knows it is wrong, but will is subverted to the
                                        point that his free agency is destroyed and he’s rendered
                                        powerless to resist by reason of duress of the disease.

                                                 Policy arguments against the test:

                                                          Doesn’t include people who have been
                                                           brooding; thinking about the crime for a
                                                           long time
                                                          Blurry line between what is an
                                                           irresistable impulse and what is simply
                                                           an impulse not resisted

                           c)   The Durham; “product test”

                                     “an accused is not criminally responsible if his unlawful act
                                     was the product of mental disease of mental defect”

                                                 Policy arguments against the test:

                                                      Experts allowed to usurp the role of the jury
                                                      How do you define “product”?
                                                      Morally blameworthy people could escape
                                                       liability if b/c of minimal “defective mind” –
                                                       found innocent

                           d) The ALI/MPC; “combo test”

                                     Really a combo of M’Naghten and Irresistable impulse b/c this
                                     test attempts to include both cognitive and volitional elements:

                                              1) as the result of mental disease or defect, the D
                                                 lacked substantial capacity to appreciate the
                                                 criminality (wrongfulness) of his conduct.
                                              2) When as a result of mental disease or defect, the
                                                 D lacked substantial capacity to conform his
                                                 conduct to the requirements of the law.

     Potential verdicts Include:
         1) Guilty
         2) Not guilty by Reason of Insanity
         3) Guilty but mentally ill
                   Might spend first part of sentence in hospital, and then when no longer mentally
                   ill, could spend the remainder of sentence in jail.

     Some states still place burden on the prosecutor; some still use “clear and convincing
     standard”; big difference between pre – Hinckley and post era.

9.   Diminished capacity

     Not accepted in vast majority of jurisdictions. Might be used to mitigate damages or to negate
     mens rea if a specific but not general intent crime at C/L.

     Podgor says three ways to look at it:
1) no defense
2) mens rea issue
       a) no defense
       b) mitigates murder to manslaughter
       c) negates mens rea of specific intent crime
3) partial responsibility

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