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 liable 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 8th 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 jurisdiction 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 punished.) 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 materials 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 omissions 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 blame-worthiness. 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 rea: 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 unreasonable. 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 negated! 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 did?” 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 causation. 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 exists. 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 jurisdiction: 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 punishment. 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 felony. 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 theft. 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 larceny: 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”, because: 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 prosecutor); 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 because: 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: Impossibility: 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. Abandonment: 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 it. 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 principal 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 involvement. 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) Requires: 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 means. 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 dwelling. 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 include: 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 sufficient). 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 family 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 pattern: 1) How did the person become intoxicated? a) voluntary/self-induced usually no defense. Unconstitutional to make status of addiction a crime. 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 requirements: 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 doing 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