Law School Outline - Criminal Law Outline Spring 2001

Outline I. Overview A. What is a crime? Anything Legislature makes a crime B. Limits to legislatures making criminal laws 1. Constitutional Limits a. Expost Facto b. Cruel and Unusual Punishment c. not to deprive of life liberty, or property w/out due process C. Jury Nullification 1. When Jury ignores facts & Judge’s instructions on law and acquits Defendant. a. poor treatment of Defendant b. compassion 2. D does not have right to Jury Nullification- Judge does not have to instruct a. jury has power 3. Policy Against a. jury feels can ignore/change law- weakens laws of society b. confuse citizens c. strains on jury system d. Jury’s are incapable of making reasoned nullification decisions e. flood gates 4. Policy For a. protect against Gov. oppression b. modify unfair laws c. provide accused w/ common sense judgment of lay peopled. safe guard against morally unjust or socially undesirable criminal conviction. e. Gov job to seek justice- no conviction may be justice II. Punishment A. Theory of Punishment- Utilitarian (trying to better society) Person will avoid criminal activity if perceived potential pain (punishment) outweighs expected potential pleasure (criminal rewards) B. Forms of Utilitarian Punishment 1. Deter socially unacceptable behavior a. specific deterrence- deter individuals from committing another crime b. general deterrence- prevent public from doing socially unacceptable behavior 2. 3. incapacitation- protect society rehabilitation- to reform wrongdoer rather than through fear of punishment C. Retribution 1. backward looking and justifies punishment solely on the basis of voluntary commission of crime (Utilitarian looks forward) 2. belief people have free will, and should be punished when violate laws 3. wrongdoer should be punished, not matter whether results in reduction of crime D. Posner economic approach to punishment 1. Specific Deterrence--lock up till can not commit crime- once to old to commit crime- let out 2. general does not work- once criminal taken out of crime pool- allows another to enter pool. 3. no retribution- no economic benefit E. Should remorse be considered in punishment/sentencing 1 1. 2. no- could be facade on part of D yes- if rehabilitation is goal of punishment, already/partially achieved F. Limits to Punishment 1. When sentencing jury factor in a. ―aggravated circumstances‖- past history/crimes of D b. ―mitigating circumstances‖- jury may lessen crime b/c D felt remorseful. D mitigating crime 2. Excessive Punishment a. no measurable goals of punishment from 3 perspectives =excessive -- specific det- excessive if longer time than needed to prevent 2nd offense -- general det.- excessive if sentence is longer than necessary to deter society from committing crime -- rehabilitation- excessive if continue to punish after rehab is successful -- retribution- not generally accepted as goal of punishment b. grossly out of proportion to severity of offenseproportionality not guaranteed by 8th amendment c. Solem test for proportionality 1. gravity of offense compared w/ severity 2. sentence of similar crimes in same Jurisdiction 3. sentence of similar offense in other Jurisdiction III. Statutes A. Interpreting Statute 1. look at statute to see if constitutional a. if 2 ways to view and one is and one is not—presumption is constitutional view b. if one way to view, but not sure must interpret statute. 2. Interpreting Statutes a. look at statute b. legislative history—some judge say 1) LH no bearing on constitutionality 2) textualist- ignore outside of Stat. c. precedent /case law d. Policy Consideration.-----try to find rationale of statute Notice of Statues a. necessary so society knows will result in punishment 3. B. Principles of Legality 1. Vagueness- stat. Is ambiguous 2. over breath - encompasses too much 3. Rule of Lenity- strict interpretation favorable to D Illegal 4. Ex Post Facto- Law must be in affect at time of act 5. Bill of Attainder—legislature subject person to guilt IV. A + B + C + D = CRIME A. Voluntary Act/ Actus Reus 1. voluntary act or omission that causes social harm 2. voluntary act required b/c a. goals of punishment are not achieved on involuntary acts b. thoughts can not be punished- requires act 3. Not- Voluntary Acts a. reflex or convulsion b. bodily movement during unconsciousness or sleep c. conduct during hypnosis 2 d. 4. bodily movement that is not product of effort or determination of the actor, either conscious or habitual Exceptions to Voluntary Act a. possession is an act if possessor knowingly procured or received the thing possessed b. or was aware of his control thereof for sufficient period to have been able to terminate possession Omission is Actus Reus When legal duty to act -ex: life support issue= legal duty ended when all treatment options exhausted Legal Duty to Act established when a. statute imposes duty (good Samaritan laws) b. voluntary assumed care c. Contractual Duty of Care d. Create peril for victim e. Status/ Special Relationship Policy against duty to act a. when is duty fulfilled- how far must act go b. floodgates- everybody can be charged w/ crime c. legislation of morality is wrong Policy for duty to act a. morality b. failure to act is just as bad as committing crime Federal Misrepresentation (???????) Statute a. non-disclosure of crime to be committed b. prohibits active concealment ( i.e if questioned) c. simple non-disclosure is not felony 5. 6. 7. 8. 9. B. Mens Rea- ―guilty mind, a guilty or wrongful purpose, a criminal intent‖ 1. Broadly- guilty mind satisfies culpability approach of common law 2. Narrowly- Mental state required in definition of offense- elemental meaning a. taking money from gas meter was blameworthy, but not malicious to inflict bodily harm by noxious gas 3. Intent in Common Law a. what actor wants to occur from actions b. what actor knows is certain to occur 1) pulling of gas meter would cause gas leak-foreseeability 2) Regina v. Cunnigham c. motive not intent (may have good/bad motive but still intent to do crime d. two categories of intent in Common Law 1)specific (elemental) a) definition of offense expressly requires proof of particular mental state. b) intent to do some future act. c) Provides actor must be aware of attending circumstances i.e. ―malice aforethought, intent to commit felony w/ in 2) general (culpability)-any offense for which mens rea required was blameworthy state of mind ?????clear up between MPC and common law approach???????? 4. Inferring Intent from Surrounding Circumstances a. words, weapons, force of blow b. no presumption (DA must prove to avoid violation of DP) but infer natural and probable consequence of an Act c. may use motive to infer intent Transferred Intent—Can be used in C.L. or MPC? a. intend an injury on person on property of another in an effort to accomplish harm on another 3 5. b. Transferred Intent does not apply when: 1) misidentification does not use transferred intent but still mens rea for committing act 2) can not transfer intent to C when A intends harm to B, and causes that harm, but also unintentionally causes same type of harm to C. Intent is used up on B. 3) statute precludes transfer of intent 4) can not transfer to different crime (i.e. shooting Solomon but hitting Podgor-not murder) Mens Rea in Model Penal Code -exclusively elemental approach to concept of mens rea -distinction of general and specific is discarded -prosecutor can not just show moral blameworthy, must prove level of culpability (i.e purposely, knowingly...) -culpability applies to material elements which are actus reus, mens rea, causation pg. 990 a. Purposely- conscious objective to engage in conduct of the nature b. Knowingly- practically certain that his conduct will cause result c. Recklessly-person consciously disregards substantial and unjustifiable risk. Gross deviation from law abiding person. d. Negligently- should be aware of a substantial and unjustifiable risk. Gross deviation from reasonable person. 6. 7. examples a. shoot kamnishine b. throw bomb into house to kill kaminshine- purposely for kaminshine, knowingly for his wife (or recklessly) c. A ask B to cross border w/ package and will pay $10000. B does not know what is in package. B charged w/ knowingly possessing and delivering. -prosecutor say infer intent form circumstances, i.e 10k, border, package willful blindness knowingly deliberately not wanting to know=‖ ostrich defense‖ Steps to Interpretation of Mens Rea in Statute a. statute b. legislative history Rule of Lenity- interpretation of mens rea in statute is most favorable to Def. 8. 9. 10. Strict Liability- no mens rea required -just b/c no mens rea in stat. Does not mean not required -assumption is mens rea required b/c of goal of punishment (no intent----no rehab, deterrence, retribution value) a. factor in determining Strict Liability if no mens rea in stat. harsh penalty=no S.L. common law crime= no S.L , needs mens rea public welfare= S.L. (i.e traffic violation, selling to minors) legislative policy- would it be undermined by requiring mens rea stigma of crime- large stigma requires mens rea malem in se- inherently wrong requires mens rea (rape, arson, murder) malem in prohibitum- legislature made it wrong= S.L. 7) reasonable standard- S.L. = no mens rea required unreasonable- mens rea required 1) 2) 3) 4) 5) 6) Exception to Strict liability 1) look at factors and will see should not be S.L. but is 2) Statutory rape- not strict liability for act but is for the age 3) felony murder Strict liability in M.P.C. 1) go to jail likely requires mens rea 2) if no jail- may be S.L. 4 b. c. 3)only when violation and fine, no jail- result is probable consequence of actor conduct Defenses to Mens Rea 11. Mistake of Fact a. in Common law Strict liability , mistake of fact has no role b. in Common law specific intent, Def. not guilty if good faith mistake of fact negates specific intent portion of crime even if not reasonable (i.e. break in to save dog b/c thought dog was in danger—not breaking and entering b/c no specific intent to steal, mistake of fact negates intent to steal) in Common law general intent- not guilty of crime if his mistake of fact was reasonable & good faith. (i.e rape- if mistake of fact w/ regard to consent was reasonable, not guilty. in Model Penal Code- use if negates purposely, knowingly, recklessly, negligently- coke instead of sugar= not guilty. (no mistake of fact when would have been guilty of another crime had situation been as he supposed, i.e coke instead of heroin) see notes for hypos 1/30/00 c. d. e. 12. Mistake of Law IGNORANCE OF THE LAW IS NO EXCUSE including personal interpretation a. exceptions 1) if Def. relied on erroneous official interpretation of law by public body responsible for interpreting 2) if negates specific intent in prosecuted offense 3) complex statutes may allow for M of L. i.e willfulness in IRS code 4) constitutional defense- for omission/passive duty must require notice (malem prohibitum). Does not apply to belief that law is unconstitutional b/c claim of invalidity of law admits notice, even if disagree. 5) if using M.P.C only if negates purposely, knowingly, recklessly, negligently b. Policy of M of L as defense 1) for- if actual mistake no specific deterrent, rehab value 2) against- encourages society not to learn and respect law 3) against- encourages bad faith claims of mistake of law 4) against- environmental statutes often have ―willful‖ yet Ct. Deny defense of M of L b/c do not want to encourage ignorance. C. Causation 1. Actual/ ―but for‖/ ―sine qua non‖ a. but for D act, the result would not have occurred b. distinguish cause from condition c. multiple actual causes 1) acceleration- can be ―but for‖ cause as well. A shoots B who will die in 1 hour. C shoots B and B dies immediately. Both are charged w/ murder. C ―accelerated death. 2) concurrent sufficient causes- either act alone is sufficient to cause result. i.e A & B shoot C in the headboth would cause death, both charged w/ murder 3) obstructed cause- effort to cause result is obstructed but same result occurs by separate force which actually causes result- A shoots B w/ intent to kill but hits in arm. C shoots in head. A charged w/ attempted murder C charged w/ murder????? 2. Proximate Cause Intervening Causes a) DeMinmis - D casual responsibility for ensuing harm is insubstantial in comparison to that of intervening cause. b) foerseeabiltiy of intervening cause- whether intervening parties act was reasonably foreseeable. 1) dependent/responsive- act that occurs in reaction or response to D prior wrongful conduct does not superseed unless the response was ―abnormal or bizarre‖ 5 2) independent/coincidental- force that does not occur in response to wrongdoers act, but wrongdoer placed victim in situation where cause could independently act on victim (i.e. steal drunk man’s car and leave him on side of road to get hit by car) c) intended consequence doctrine-wrongdoers gets result wanted, even if in different manner, will not break causal chain. (i.e child poison by nurse instead of Mom) d) dangerous forces that come to rest/apparent safety doctrine- original wrongdoer’s conduct no longer constitutes an immediate threat, but harm still occurs from another cause. (i.e. wife freezing to death) e) voluntary human intervention- either victim or 3rd ???? part intervenes and causes ensuing harm. Decision to intervene must be free, deliberate, and informed Omission-negative acts will rarely if ever serve as superseding cause. ―Nothing‖ can never superseed ―something.‖ f) 3. Prox Cause in M.P.C a. no prox cause just ―but for‖ using 4 levels of culpability b. in rare cases when no culpability element, code says causation not established unless actual result is probable consequence of actor conduct c. if too remote or accidental, causation not established See hypos Feb 8th., Dressler pg 167 D. Attending Circumstances 1. at night time V. Defenses A. Burden of proof 1. due process requires prosecutor to persuade fact finder ―beyond a reasonable doubt of every fact necessary to constitute the crime charged‖ 2. 3. on affirmative defenses, D is required to prove Policy a. punishment value- P must prove so we are sure punishment has value b. more efficient if require P to prove less c. less efficient by way of $ if we put D in jail when free of culpability B. Mistake of Law/ Mistake of Fact see above. VI. Homicide A. Overview 1. 2. 3. Common Law= killing of a human being (including suicide) Modern Law= Killing of human being by another human being. human being is a. common law- fetus must be born alive b. statutory- some include unborn fetus, some say murder if results in death of mother Death result when (depends on Jurisdiction) a. respiratory system stops b. brain function stop c. both brain and respiratory functions cease d. parts of brain stop- i.e higher brain, middle brain, lower brain (medula) 4. 6 5. “year a day rule” a. can not be charged with murder if killing occurs a year a day after harmful conduct. b. trend to go away b/c life support is very advanced and people could live for years on it c. balance of pulling the plug with culpability of wrongdoer d. some states have no time limit B. Common Law Murder and Man Slaughter 1. murder is the killing of a human being by another human being with malice aforethought a. malice- states of mind 1) intent to kill 2) intent to inflict grievous bodily injury 3)extreme reckless disregard for human life- ―depraved heart‖ 4) intent to commit felony when a death results (felony murder) b. aforethought- conscious effort but may be established in ―the blink of an eye‖ c. Georgia follows Common Law d. malice aforethought id nearly always implied if a person intends to cause grievous bodily injury to another but death results (battery) 2. Voluntary Man Slaughter- killing in the ―heat of passion‖ / without malice aforethought a. Elements 1) sudden heat of passion 2) adequate provocation (calculated to inflame passion of reasonable man to act from passion instead of 3) no opportunity to cool off- usually determined by judge, but should be jury 4) causal link between provocation, heat of passion, killing a)but for and b) proximate b. c. reason) mere words alone are not adequate provocation. Some court allow informational words to be provocation (i.e. your wife is having an affair) per se’ provocation 1) extreme assault or battery 2) mutual combat 3) D illegal arrest 4) crime, injury or serious abuse to close relative 5) sudden discovery of adultery law will not justify passion when provocation is on 3rd party. i.e. reasonable person would not kill as result of killing your dog (unless dog is close relative) d. Involuntary Manslaughter- an act, lawful in itself, but done in an unlawful manner, and without due caution and circumspection. i.e. DUI a. mother does not bring her baby to Dr. and baby dies 1)C.L involuntary man slaughter requires proof of gross negligence 2)some states only require proof of ordinary negligence see hypos 2/15/001 3. C. Degrees of Murder (invoked by statute) 1. Murder 1 a. premeditated and deliberate intent to kill b. intent can be inferred from: 1) want of provocation 2) conduct & statement of D before and after killing 3) threats of declarations of D before or during the course giving rise to death 4) ill will or previous difficulty between parties 5) dealing of lethal blows after deceased has been falled & helpless 6) evidence of brutal manner 2. Murder 2 a. requires malice aforethought that is not premeditated or deliberate by 1) expressed 7 2) implieda) indifference to human life 3)awareness of risk of conduct or that conduct is contrary to law b. Pit Bull example- D charged w/ M2 because implied malice because indifference to human life and awareness of risk of conduct and that it was contrary to law to have fighting dogs D. Murder and Man Slaughter in Model Penal Code 1. Murder is when actor unjustifiably, inexcusably, and in the absence of mitigating circumstance, kill another purposely, knowingly, recklessly, or negligently. a. no degrees in M.P.C b. felony of 1st degree c. abandoned Common Law notion of ―malice aforethought‖ Voluntary Man Slaughter a. killing under ―extreme emotional disturbance b. extreme emotional disturbance is 1) D must acted under influence of extreme emotional disturbance-subjective test 2) reasonable explanation or excuse for extreme emotional disturbance-subjective/objective test -reasonableness determined from shoes of the D 2. E. Felony Murder 1. Felony + Killing + Direct Causation= Felony Murder a. often Murder 1 b. Strict liability to the death that occurs with regard to intent c. intent only concerned with underlining felony d. intent to commit felony constitutes the implied malice required for common law murder. 2. This is the exception to Strict liability factor (along with statutory rape) 3. Policy for Felony Murder a. deter negligent and accidental killing during felonies b. reaffirm sanctity of human life c. retribution d. general deterrence- people will not commit felony if know can be charged with murder e. specific deterrence- same as general f. transferred intent from felony to killing g. P burden of proof is less 4. Policy against Felony Murder a. punishment value- can t deter unintended act, can not rehabilitate unintentional killer b. does not adhere to degree of criminal liability c. misuse of transferred intent doctrine Limitations on Felony Murder Rule (J.D.) a. Inherently Dangerous- underlying felony must be inherently dangerous to human life Two tests if Inherently Dangerous 1) Abstract/ facts of the Case i) in the abstract- is felony in itself create peril or could it have bee done w/ out creating peril ii) facts of the case- did the specific fact create a peril 2) if commission of felony creates a substantial risk of loss of life in both abstract and circumstances 5. If statue list specific felonies where FM applies than no issue if inherently dangerous or not b. In Furtherance or perpetration- did killing occur in furtherance of the underlining felony :‖as to make it part of the same criminal enterprise 1) temporal and geographic proximity requirement - time and distance between felony and homicide must be in close proximity. Some courts say time continues till felon reaches place of temporary safety 2) causal relationship between felony and homicide 8 c. Ireland/Merger rule-felony is integral part or included w/ in homicide, FM rule does not apply. 1)exception- if felony has independent purpose, may apply FM- i.e unlicensed gun is felony 2) GA does not accept Merger Rule 3) exception prevents every homicide from being a felony murder -goals of punishment achieved. Co-felon Rule- FM does not apply if adversary to crime, rather than felon, personally commits the homicidal act. 1) make sure adversarial relationship between felon and killer- can not be accomplices d. VI. Assault & Battery A. Common Law 1. assault was attempted battery 2. today assault can be proved if one places victim in eminent apprehension of battery (attempt or place fear of battery in victim) 3. Model Penal Code a. purposely, knowingly, or recklessly attempting to cause bodily injury to another b. if cause bodily injury to another=battery VI. Rape A. Actus Reus 1. Carnal knowledge of a woman forcibly and against her will B. Questions 1. Rape or sexual assault? a. specific act or general act 2. Against will or is nonconsensual the same thing. a. what about unconscious / drugged person 3. Is force actual or just the threat of force 4. 5. Is resistance required or is resistance satisfied by non-consent Should there be degrees? a. easier to convict b. lowers the severity of offense w/ regard to punishment and moral condemnation c. i.e woman is less innocent if degrees ( should there be marital/co-habitation immunity Should there be gender specific, age distinction, capacity. 6. 7. VI. THEFT A. Larceny-hypos 948 1. ELEMENTS a. tresspatory taking (caption) b. caring away (asporation) c. of personal property d. w/ intent to permanently deprive 2. Under Common Law if consent custody which is not larceny b/c no tresspatory taking a. custody- physical control but right to use is substantially restricted by person w/ constructive possession. Temporary or limited purpose 1) if exceed scope of custody = larceny 2) ―Breaks Bulk Doctrine‖- given possession of bale but not contents, when open contents and take, exceeds scope of custody and becomes tresspatory=larceny b. actual possession- if in physical control of object c. constructive possession- not physical control, but nobody else has actual possession, either b/c lost or mislaid or other person has custody of object. 9 3. 4. 5. Robbery- larceny from person by violence or intimidation by force or threat of force Larceny to steal property from thief or contraband (no right to posses) Personal property has been expanded to intangibles. (either way make argument) B. Embezzlement (Statutory offense) 1. Conversion of property received by wrongdoer in non-tresspatory manner 2. Actor must receive property of another in trust in a lawful manner, such that embezzler’s fraudulent conversion of property indicates breach of that trust. a. key here is the element of entrustment C. False Pretenses 1. misrepresentation w/ intent to defraud of possession and Title. D. Larceny by trickery or device 1. D obtains possession (BUT NOT TILTE) by fraud or trickery 2. fraud vitiates consent and thus = trespass D. Theft under M.P.C. 1. compiles larceny, embezzlement, etc into theft. Than broken down into a. theft by deception b. theft of services c. pg 1034 2. Permanently depriving under Model Penal Code: a. to deprive is to w/hold property permanently b. or as s to appropriate major portion of economic value c. or to restore only upon payment of reward d. or to dispose as to make it unlikely owner will find Inchoate Crimes VII. Attempt A. Mens Rea 1. Intent required- Attempt to commit any crime must have a specific intent to commit the crime. B. Actus Reus Test to show beyond mere preparation: Focuses on what remains to be done 1. Last Act- has actor completed the last act before completed offense a. bright line rule in showing specific intent b. P/A-difficult to prevent substantive crime/least deterrence 2. physical proximity- overt act of attempt must be proximate to completed crime (no attempt unless actor has w/ in her power to commit crime immediately) a. P- if D in proximity, likely shows capability to commit crime 3. Dangerous Proximity- Danger of success is great - 3 factors a. nearness of danger b. greatness of harm c. degree of apprehension feltd. P- flexible in comparison to physical proximity test e. P/A- vague as to application Indispensable element-variation of proximity test which focuses on any indispensable aspect of crime over which actor has not acquired control a. P-easier to apply b/c can see if element is present or not 10 4. b. P/A- arbitrary b/c presence of element says little about culpability, or firmness of intention Focuses on what has already Occurred 5. probable desistance- in the ordinary course of events the actor has reached a point where unlikely that he will voluntary desist/stop his effort to commit crime a. P- there is a bright line rule and w/ standard b. P/A- ordinary people do not prepare to commit crimes so hard to establish standard 6. Abnormal Step Approach- goes beyond point where normal citizen would think better of his conduct and desist. a. P- shows greater degree of culpability b. P/A- ordinary person would not commit crime in the first place. 7. Res Ipsa Loquitur- ―speaks for itself‖- conduct manifest an intent to commit crime a. P- objective b. P/A- impracticality-very broad, ambiguous and unhelpful. Hard to infer intent from conduct (pipe instead of haystack 8. Substantial Step Test- M.P.C.- D has taken substantial step towards crime a. P- more of deterrence b/c expands scope of criminality b. P/A- vague w/ little objectiveness C. Defenses 1. Abandonment- complete defense but must be a. voluntary - not voluntary if circumstances intervene that actor has not foreseen (police) b. complete -not to do again- does not include postponement 2. 3. Legal Impossibility- not illegal to commit conduct = C.L defense Factual Impossibility- attended circumstances are not as actor believed them to be- (i.e empty pocket)- Not C.L defense a. today neither are defense unless using model penal code and negates an element of crime b. ―Inherent legal impossibility‖ c. Hybrid impossibility- i.e bribing a jury member who is not a jury member VIII. SolicitationA. A person invites, request, commands, hires, or encourages another to engage in a crime 1. must be communicated - if A sends letter to be but B never receives not solicitation 2. M.P.C.- conduct ―designed to effect‖ communication is sufficient to constitute solicitation a. recognizes solicitation to commit an attempt 3. MUST SHOW SPECIFIC INTENT TO COMMUNICATE/ SOLICIT TO COMMIT SUBSTANTIVE OFFENSE B. Defenses 1. Abandonment a. complete and voluntary (like Attempt) b. some J.D. may require informing law enforcement. c. P-allows deterrence and encourages reversal 2. M.P.C. - ―Renunciation of Solicitation‖- Affirmative Defense- that D may or may not have to prove. (depends on Legislature) IX. Conspiracy A. Elements 1. 2 or more parties reach agreement- plurality (Actus Reus a. to ―essential nature of plan‖ 2. agree to unlawful objective- either illegal act or legal act by unlawful means 3. Specific Knowledge and intent to 1) combine w/ another to 2) facilitate unlawful objective 4. (sometimes) overt act - manifestation that agreement is being carried out 11 a. drug offenses do not require overt act B. Policy 1. Prosecution likes b/c a. can prove w/out completion of crime and sometimes overt act b. guilt by association c. relevant evidence expanded b/c ―hearsay exception‖ allows any statement by co-conspirator to be admissible if statement made during conspiracy and in furtherance of conspiracy d. venue- can lay venue where agreement act, overt act, D resides e. in Fed system/ C.L no merger of conspiracy and substantive offense. f. in M.P.C conspiracy and substantive crime merge g. can have unindited coconspirators C. Pinkerton Rule 1. co-conspirator guilty of other completed offenses in commission of the initial crime if a. there is a conspiracy b. other crime in 1) furtherance of conspiracy 2) foreseeable as a natural and probable consequence D. Conspiracy in Fed Code is 18 USC 375 1. to commit a specific offense w/ in Fed Code 2. to defraud US gov.- do not have to be charged w. Specific stat/crime E. Attendant Circumstances1. strict liability 2. do not have to know mens rea as to attendant circumstance (i.e fed officer) D. Types of Conspiracy 1. Bilateral- where both parties agree to commit crime 2. Unilateral- only one conspirator needs to agree (i.e if other is under cover agent). a. not accepted in C.L. b/c lack of plurality b. accepted by M.P.C. and some J.D. c. P- to prevent crime, conspiracy is dangerous even if both do not agree 3. 4. “Wheel and spoke‖ can charge multiple participants w/ conspiracy b/c others do not know about ―essential plan‖ w/ spoke “Chain and Link‖ only one essential plan so can only charge w/ one count of conspiracy F. Wharton’s Rule 1. an agreement by two people to commit crime can not be prosecuted w/ conspiracy when the crime requires two participants for its commission 2. applies to only when minimum amount of people a. if use match maker can charge w/ conspiracy b. often applied to adultery, incest, or bigamy c. the rule is judicial presumption and D must show should apply (i.e 5 people gambling is not dangerous to society) 3. Policy a. only effects parties involved therefore not dangerous to society which conspiracy is aimed at preventing X. Accessory Liability A. Principal in 1st degree 1. person who physically commits offense 2. or commits offense by use of ―innocent instrumentality‖ B. Aiding and Abetting - principal in 2nd degree 1. intent must be the same of principal in first degree 2. associate himself w/ venture 3. wishes to bring about 4. seeks by action (may be encouragement but not mere presence) to make it succeed 5. must be present at scene of crime actively or constructively 6. may be punished as principal in 1st degree 7. underlining crime must be committed (some J.D. may have A & A on attempt) 12 8. 9. may be held liable even if principal in 1st degree not identified or convicted Some J.D. hold conviction can not be held based on testimony of accomplice unless a. corroborate w/ other evidence such as testimony f non-accomplice, video, finger prints C. Accessory before the fact1. same as aiding and abetting but D does not have to be present either actually or constructively 2. often person who solicits, counsels or commands principal in 1st degree D. Accessory After the Fact 1. w/ knowledge of another’s guilt, intentionally assist felon to avoid arrest, trial, or conviction E. M.P.C/ J.D 1. some jurisdictions allow aiding and abet w/ negligence or reckless mens rea while other have to have knowingly or purposely 2. ex: assisted suicide (in absence of stat) there is no action of murder (knowingly or purposely intent) but still may charge w/ reckless or negligent murder F. Vicarious liability 1. employer can be held criminally liable for employee’s actions a. P- major deterrence to encourage Corporation to act responsibly b. P/A- alien to criminal legal system to be responsible for actions of another G. Defenses 1. Excuse, wrongful but actor not accountable, is not defense a. personal to principal in the first b. i.e Jay as look out and Joy rob bank and Joy is insane. Jay can not use excuse of joy being insane to avoid accessory liability c. ex. Duress, insanity 2. Justification , although committed, not wrongful, is a defense a. aider and abettor avoids liability b/c w/ justification there is no underlying crime of principal in 1 st degree so can not be convicted in absence of underlying crime b. ex. Necessity to escape jail t avoid serious harm (cts are split) 3. Entrapment-gov agents may not originate criminal design a. must show lack of predisposition to commit crime 1) majority rule is subjective- was he predisposed w/ intent to commit crime 2) minority rule is objective: look at gov conduct and decide if reasonable b. was commission of crime dependent on gov enticement 4. Outrageous government conduct a. defense premised solely on conduct of gov agents b. many J.D. do not recognize XI. Self Defense A. General Principals 1. defense of necessity 2. arises only when necessity begins and ends when necessity ends 3. proportionality- may not use excessive force compared to force being used upon D B. Elements to use Self Defense 1. threat, actual or apparent, of the use of deadly force against defender 2. threat must be unlawful and immediate 3. D must believe in eminent peril of death or serious bodily harm and response was necessary 4. honest belief and objectively reasonable 5. not available to one who provokes conflict or is the aggressor 6. mere words are not provocation to use self defense (i.. I’m going to kill you‖) 7. If aggressor withdrawals and other party becomes aggressor, starts over and D is entitled to defense C. Retreat Doctrine 1. C.L.- ―retreat to the wall‖- must retreat if safe retreat available- Fed Law/M.P.C 2. majority- man may stand ground and use deadly force if reasonably necessary 3. Exception a. when retreat would be perilous 13 4. b. castle doctrine- do not have to retreat when at one’s home including outside (not if aggressor) Policy a. P- avoid harm of death b. P/A- no deterrence to criminal, and hard to asses if retreat will be safe D. Defense of Others- based on justification principal 1. C.L could only defend others of special relationship, relation, marriage, or employment a. P/A- want to encourage people to assist others, deterrence to criminal if other can come to rescue b. P- discourage vigilantly justice 2.Elements 1. was it necessary 2. was force proportional 3. was using force reasonable a. Act at Peril- if reasonable from victims point-if victim could use her own self defense so can 3rd party 1) P- death is bad no matter what, do not want people interfering where they should not be (i.e police officers) 2) P/A- discourages people from helping if think criminally liable b. Modern View- subjective form 3rd party perspective- would a reasonable person observing have intervenedintervene may use force to the extent that such force appears to be justified by the 3rd party. M.P.C. a. no more force to protect victim than victim could have used to protect herself as intervener seems reasonable b. does not apply Act at Peril rule E. Defense of Property 1. no deadly force 2. no spring guns b/c deadly force and can not realize no need 3. human life more valuable than property 2. XI. Necessity and Duress as Defenses A. Necessity- D exercises own free will to achieve the lesser of 2 evils. 1. Justification- D actions are considered not to be wrong. 2. Defense to all crimes except common law homicide (Queen v. Dudley & Stephens) 3. Elements a. D faced w/ clear and imminent danger, not debatable or speculative b. D reasonably expects his actions will be direct cause in abating danger c. no legal alternative which will be effective in abating danger d. Legislature has not acted to preclude the defense by clear and deliberate choice regarding value at issue 4. D must be acting out of necessity at all times 5. D will use when high level of immediacy and alternative is greater evil B. Civil Disobedience based on Necessity 1. Indirect C.D.- violation of law or policy not in itself the object of protest. Not violating law attempting to change. (disobeying Fed agent b/c protesting Aid to El Salvador) a. cannot use as defense b. Policy- there is no balancing of harm b/c there is no direct harm being caused by law at the time 2. Direct C.D- protesting existence of a law by breaking law attempting to change or by preventing enforcement of law (sit in at lunch counters to protest segregation laws) a. may use as defense b/c there is a balance of evils- the law and not abiding it C. Necessity in M.P.C 1. not available if culpable element is reckless or negligence b/c actor must believe the conduct is necessary in order to achieve lesser evil. If reckless or negligent, D can not say he was balancing the evils b/c not even aware of harm of conduct. 2. Not limited- may be employed to justify homicide—―actor may kill to save greater number of lives‖ D. Duress- D’s free will is overcome by outside force 14 1. Excuse- D conduct is wrong, but not blameworthy 2. Elements a. immediate threat of death or bodily injury (M.P.C. would allow bodily integrity) b. well grounded fear that threat will be carried out c. no reasonable opportunity to escape threat 3. D must show sufficient evidence of duress 4. Duress is not Self defense or 3rd part defense b/c threat is for future and mere words are not enough for S.D. or 3rd party defense 5. generally the threat/coercion comes from human forces 6. Duress-Prison escapes a. specific threat such as forcible sexual attacks or substantial bodily harm b. no time or futility in complaining c. no time to go to court d. no evidence of violence against others during escape e. once D escapes- must notify authorities (how long is reasonable notification time) 7. Policy of allowing as Defense a. there is no rehabilitation value if D did not act on own volition b. no specific deterrence to D if not acting on will c. D does not deserve retribution b/c did chose lesser of evils (necessity mainly) 8. Key issue- was actor deprived of opportunity to exercise his own will to act lawfully b/c of outside force XIII. Cultural Defenses A. Generally 1. some courts allow 2. must be professional by respecting other sides opinion 3. Perhaps if Legislature has made some policy or statutes that seem to protect certain cultures thus making cultural defense more fair or deserving 4. Will punishment actually deter D or are cultural practices so embedded that they believe they did nothing wrong so there is no hope for rehabilitation or deterrence? XIV. Intoxication A. Analysis 1. Actus Reus- did the intoxication make a voluntary act impossible- Was D unconscious. Likely not b/c not likely working on reflex 2. Mens Rea- will intoxication negate mens rea of a specific intent crime b/c could not form requisite intent (most J.D. do not allow but will allow as affirmative defense) a. if general intent crime, intoxication can never negate b/c there is always blameworthiness inherent in the act 3. causation-did the intoxication negate one of the levels of culpability within the M.P.C -some J.D. allow reduction of crime to lesser included offense due to intoxication -similar,some J.D. will not recognize felony murder when felony was committed by intoxicated D Likely-none of this will work and will have to be affirmative defense B. Voluntary Intoxication 1. Common Law only defense to specific intent crimes, not general intent crimes a. does intoxication prevent D from forming the specific intent required 2. M.P.C. –if intoxication negates one of the levels of culpability (purposely…) - however the intoxication is usually a result of reckless conduct in the first place so will not negate) C. Involuntary Intoxication- Defense to all crimes-specific and general 1. Coerced- under duress or coercion, D becomes intoxicated-complete defense 2. By innocent Mistake-mistaken about character of substance (in Tylenol Bottle is Ecstasy) 15 3. By Prescribed Medicine- by Dr. and a. D does not know or have reason to k now of effect b. drug is cause in fact of alleged criminal conduct c. D may be temporary insane b/c of medication 4. Pathological-intoxication is grossly excessive in degree given amount of intoxicant consumed. Major over RX a. State may have to prove that beyond reasonable doubt not pathological which may be difficult. Intoxications may overlap!!!!! 5. Intoxication in M.P.C a. if negates one of the levels of culpability b. Pathological intoxication or involuntary may be Affirmative defense if actor meets the ALI test for insanity ??? does this mean only if temp. insane???? 6. Policy for Intoxication not to be defense a. deter D not to take drugs or alcohol b. encourage cautions behavior c. general policy to encourage law abiding behavior w/out intoxication as excuse d. rehab from drugs/alcohol 8. Policy for allowing as Defense (no punishment) a. will not rehabilitate D if acted while intoxicated b. do not punish people who have disease c. may over deter people from taking prescription drugs otherwise 9. Ga allows intoxication to negate Mens Rea but only if practically unconscious-and rarely allows as defense Intoxication may lead to temporary…… IV. Insanity A. Competency- determining if D is competent to stand trial is the first step 1. competency based on: At time of trial (based on facts) a. ability to consult w/ lawyer b. rational and factual understanding of charges 2. if D incompetent may be incarcerated until become competent which may be longer than sentence 3. lawyer, Judge, State, all have duty to raise issue of competency 4. Court will appoint Dr. to determine B. Insanity- determining if D was insane at time of act is second step. J.D. use 1 of 4 test 1. McNaughten/Right/Wronga. defect of the mind b. did not know nature and quality of act or c. did not know act was wrong/difference of right or wrong P/A- 1) subjective b/c based on cognitive test on mind of the D. 2) lacks volitional aspect of if D acted on his own will 3) did not know if D could ascertain consequences of act 4) possibility of Dr. committing perjury b/c Dr. does not really know what D is thinking 2. Irrespirable Impulse-D cannot overcome impulse by own volition a. defect of mind b. can not overcome will to do something wrong P/A 1) only immediate irresistible impulse-does not take into account prior fight w/ disease 2) every D could argue could not stop myself-where draw line 3. Durham/Product-was the act a product of the disease 16 a. defect of mind b. act resulted from defect of mind P/A- 1) product of disease hard to determine 2) Dr. Usurping jury function by saying act was product of disease instead of jury deciding D has excuse b/c of disease 4. ALI/MPC-mental defect that either a. causes D not to appreciate criminality of the act or b. D could not conform conduct to be lawful b/c loss of volition. 17