8. Diminished Capacity a. Jurisdictions divided on applicability on this. b. Majority holds not adequate for insanity defense b/c shadings of intelligence creates vagueness of standards. 9. Involuntary Action—D should be aquitted b/c no criminal act. When D acts involuntarily, use automatism rather than insanity defense b/c insanity defense leads to mental institutions except juries tend to think Invol. Defenses are fake—more than insanity ones. a. Examples of involuntary actions (rare)—unusual reactions to prescription drugs; drinking what you do not know is alcohol. b. Examples of voluntary act—if you know you are drinking some alcohol and are mistaken on the amount or concentration (no defense). c. Intoxication Defense—same as insanity, but no confinement. Must be involuntary intoxication where D is unaware of actions or prolonged alcohol abuse. 1. Volunt. Intox defense remits you to insanity defenses. 2. MPC View—voluntary intox. Is not any excuse to crime unless purpose or knowledge obliterated 3. Majority View—voluntary intox. May only negate the existence of specific intent crimes. (Disadvantage—hard to classify crimes.) 4. Voluntary Intox. Treated like diminished capacityhow does it affect the mens rea? Is M.R. requirement of offense? a. cant use as defense in general intent crimes but can in specific intent crimes. 4. When produces delirium, can be treated as a mental defect. d. Drug Addiction—no defense b/c generally it is D’s fault; why immunize addicts when crim. Sanctions on even possessing substances; more of an irresistible impulse than cognitive. e. Infancy 1. at C/L, under 7 inability to form crim. Intention, by 14 fully responsible as an adult, between 7-14 rebuttable presumption of infancy (crude estimations) 2. Today, juvenile systems eliminate rule unless D waives right. F. RECKLESS OR NEGLIGENT KILLINGS (CLASS II) 1. Reckless Killings – generally manslaughter (note—volunt. Intox. No defense here) a. Probability of harm – reasonable person POV b. Extent of harm --# of victims c. Advertence – did D really consider all the risks? d. Generally something more than negligence is required and MPC requires advertence. e. Special, misc. factors which aggravate or mitigate the case. (ex: d belongs to certain tribe w/diff. Social rules.) 2. Depraved Heart – Extreme indifference to life (substitute for malice) 2nd degree murder (based on element of viciousness) a. No utility in action; no attempt to minimize risk b. Contrib. Negligence is irrelevant. c. MPC—D is guilty of murder if he has acted “recklessly under circumstances manifesting an extreme indifference to the value of human life” d. 4 factors evaluated by jury in determination: 1. Social utility of actor’s conduct (jury must consider defenses; provoc., necessity, S/D) 2. Magnitude of risk conduct creates (Nature of foreseeable harm & likelihood of result. Harm. ) 3. Actor’s knowledge of risk. G. ACTUS REUS OF CRIMINAL HOMICIDE—CAUSATION 1. But-For causation—“but for D’s conduct or omission, the result would not have happened”. (but-for on its own not enough. Need #2) 2. Cause must be a substantial factor of V’s death. (big cause wipes out little causes). 3. Simple Theory (MPC) a. But-for causation and b. Whether crime is in purpose, knowledge, or risk—if so, then adequate causal connection unless cause is too remote or accidental. (JB thinks unsatisfactory) 4. Complex Theory (JB thinks still unsatisfactory) a. But-For causation and b. Achieving intended result (even if done in a roundabout manner) or c. No supervening cause—element of a supervening cause: 1. Intervening: another cause acts after D’s causal force and changes the result (i.e. D gives V poison & while V languishes, A chops of V’ head which changes result b/c V dies from head wound not from poison. a. Distinguish from concurrent cause (i.e. 2 knife wounds cooperating to kill are concurrent) b. Pre-existing physical condition is not intervening cause. 2. Independent: Not traceable to D (act of 2nd actor not caused by D’s act)—Not independent if D incites, generates, motivates, or produces forcee) 3. Unforseeable to a reasonable person. H. KILLINGS IN COURSE OF UNLAWFUL ACTS (CLASS III) 1. Felony-Murder Rule a. Death is an accident: D did not intend death and D was not reckless in causing death b. C/L View: If D, while in the process of committing or attempting to commit a felony, kills another the killing is murder. 1. 2nd degree murder 2. malice requirement is proven through intent to commit felony c. Elements: 1. Killing was committed in the furtherance of the felony. 2. Death was a natural and probable result of the felony. d. Modern View: Most jurisdictions retain C/L rule w/some restrictions: 1. “inherently dangerous felonies”—those that are dangerous to human life (many states make this 1rst degree murder), or a. Inherently dangerous in the abstract (Underwood case) v. b. Inherently dangerous in relation to the circumstances (Goodseal rule). 2. Common Law Felonies 3. Felonies judged to be malum in se or malum prohibitum (a wrong in itself v. its wrong b/c law says so) 4. Killings which occur in the furtherance of a felony a. proximate cause—there must be a causal relationship between the felony and the killing. b. Factual causation—felony must in some sense be the but-for cause of the killing c. Legal causation—felony must in some sense be the proximate cause of the killing. e. Duration of Application 1. During attempt stage of underlying felony (where D could be convicted of attempt) 2. During actual commission of felony (when one or more elements of the definition of the crime are occurring. 3. Some jurisdictions apply the rule after felony has been completed (i.e. burglar is still on premises) 4. Some jurisdictions apply rule during res gestae (surrounding circumstances of crime) of felony. f. Redline rule—limited view FM, where if shot fired by V, bystander, or police, then D is not liable. D is only liable when he shoots. Fatal force must be from felon. 1. Shield Exception—where D uses V as a shield from the police, D is guilty of F-M. f. MPC thinks F-M Rule should be abolished. Presumption of depraved heart recklessness and burden of persuasion on the D. g. Purpose of the rule 1. Deterrance of robbers using loaded weapons 2. Strict liability—felon becomes insurer of lives. h. Inapplicability— 1. when underlying crime is homicide—obviously the death is intended 2. when underlying crime is assault 3. where crimes merge. (merger doctrine) 2. Misdemeanor-Manslaughter Rule a. C/L Rule—death occurring in commission of misdemeanormanslaughter. 1. not applied very often b/c misdemeanors are generally not dangerous (ex. Petty larceny) 2. applied for battery resulting in death. 3. Applied to abortion when woman died at the hands of abortionist. (I think this refers to unlawful abortions. b. same causal tests as F-M c. N/A to absolute misdemeanors b/c of lack of mens rea. VI. ACCOMPLICE, ATTEMPTS, CONSPIRACY A. ACCOMPLICES 1. PRINCIPALS at C/L: (depend on finding of guilt of at least one principal) a. 1rst degree—actually or constructively present & participates in the commission of the crime; actually perpetrates or acts in concert w/the principal. b. 2nd degree—actually/constructively present at time and place of crime other than 1rst degree; aiding and abetting. c. Accessory before the fact—absent from the scene; participated in the planning. d. Accessory after the fact—after the felony has been committed, D knowingly comforts, protects, or helps felon (treated less severely). 2. Aiding & Abetting a. for aiding (helping)—sufficient if D intends to help even if D never actually affects the crime. b. For abetting (encouraging, inciting)—D must intend to abet and principals must know of the help to convict D. 3. When you operate through an innocent agentyou are guilty in 1rst degree (but innocent agent can’t have own agenda). 4. For treason, everyone treated as principal 5. Mens Rea requirement a. Attitude toward venture (purpose to aid or abet) and share appropriate mens rea for the crime. b. Knowledge 1. for minor crimes—spreading net to all who know goes too far. 2. For serious crimes—knowledge is enough b/c adding purpose lets too many D’s off. c. JB thinks you should use both knowledge and purpose standards depending on the offense. 6. Misdemeanors—accessories after the fact are not guilty; 1rst degree, 2nd degree and accessories before the fact are treated as principals. 7. MPC a. Does not punish accessories after the fact. b. Hindering arrest provision covers accessories after the fact. 8. Unpremeditated, sudden acts—can still be an accessory before the fact. A sets up the situation where principal kills in sudden rage. 9. Guilt—at C/L, guilt of accomplice could not be higher than principal. Modern law changed so long as accomplice has mens rea he can be guilty of more serious crime than principal. 10. Corporate Vicarious Liability a. at /L, corporation does not have mind therefore corporation could not be conviced of crime requiring mens rea. b. Today—CEO/president of corporation can have the mens rea and therefore, possible liability. Liability imposed at the top of corporation not to the intermediaree— deterrent effect. B. ATTEMPTS 1. Mens rea a. Majority view—purpose (however, in serious crimes juries can infer purpose from knowledge) 2. Actus Reus a. consensus that acts must go beyond mere preparation b. last necessary act view—when you have done the last necessary act before completing the crime. 1. problem that D can be guilty of attempt before the last possible act (slow poisoning) c. No turning back view—when all chance for effective repentance have past 1. problem b/c D can repent up to the moment of crime in some cases leaving no attempt convictions. d. Unequivocal Act Test—D’s conduct unequivocally manifest his criminal intent; if D’s conduct considered in isolation, can only lead to one conclusion and that conclusion is an attempt 1. A.K.A—Res Ipsa Loquitor Test (the act speaks for itself) 2. Confessions of D not sufficient on their own. e. Proximate test—focuses on the closeness to success in completing the crime. 1. problem that it is too vague. 2. Holmes liked this view 3. Prof. Strayhorn’s modification—look for the point at which some element of crime has been accomplished so the law would take notice of it. 4. Problem with arson so states enacted statutes so attempt can be found before situation got too dangerous due to inherent danger of fire. f. MPC—Substantial step towards crime corroborative w/criminal purpose. 1. occurs at earlier stage than proximity test outcome. 2. Imposes heavy penalties close to that for the actual commission of the crime b/c of deterrence, reform and incarceration since attempters are just as dangerous. 3. When crime is completed: a. at C/L—merger of attempt into completed felony meant state had to prove failure = attempt b. Today—failure is not as important. D can still be guilty of attempt even if successful. 4. Solicitation—C/L misdemeanor requesting another to commit a crime. a. Not necessary that a person asked actually commits the crime. b. Person asked must realize it is a crime if he knew the law. c. At C/L, solicitation was not an attempt b/c not far enough along the chain of events to be dangerous proximate to success. d. If solicitor agrees, both parties can be guilty of conspiracy; if solicitee goes on to commit crime, both can be guilty for the substantive offense (one as principal and the other as accomplice). 5. Abandonment of Attempt—withdrawing after completing attempt is no defense. a. MPC did create a defense of withdrawal (not prevalent) negates dangerousness; encourages people to change their minds that prevent crimes. 6. Crimes with attempt in definition a. Attempted Burglary—possible to be convicted of attempted burglary b/c it is more than an attempt to commit a burglary. There is B& E, etc.. b. Attempted Assault—possible to be convicted of attempted assault b/c it is putting in fear, therefore you can be guilty of attempting to put someone in apprehension. 7. Impossibility a. Factual Impossibility 1. Intrinsic Factual – means are inherently unsuitable (unloaded gun—no defense except in extreme circumstances) 2. Extrinsic factual – V is missing (pick pocketing an empty pocket or intended rape victim is a cross-dresser—no defense except in extreme circumstances) 3. JB thinks there should be no exceptions even for extreme cases b/c D still exhibits desire to do danger. b. Legal Impossibility – when D accomplished end to his own satisfaction, but completed no crime (possible defense) 1. Apply legal test first b/c if situation meets it then D has a defense and no need to apply factual tests. 2. Doctrine of Legal Impossibility came under attack so distinction was made to prevent D’s from getting off so frequently a. D who is wrong about the facts has no defense. b. D who is wrong about the law or that the law would not punish does have a defense. 3. Legal Impossibility is on the wane. 4. MPC – D can be guilty if acting w/culpability otherwise required if circumstances were as he believed them to be. 5. Under Modern Law, if legislation passed a specific statute protecting a certain class from criminal liability to the completed crime, a person of that class cannot be guilty of attempt. 8.No such thing as attempted F-M b/c killing was an accident. C. CONSPIRACY 1. Definition—an agreement between two or more persons to commit a crime or unlawful act. 2. C/L Rule—evidence of an agreement = conspiracy. a. many jurisdictions today require an overt act along with agreement. 3. Elements a. Agreement – conspiracy is complete upon the agreement (often committed earlier than the attempt) 1. Need not be an express agreement or true “meeting of the minds”—just something that reasonably infers an agreement. 2. The mere fact that 2 or more committed a crime together does not mean there was an agreement or conspiracy. b. Object of Conspiracy 1. at C/L, no need to conspire against an actual crime – just reprehensible b/c of dangerous combination. 2. Today, most require an object crime and punishment limited to that of the object crime. 4. Mens Rea-each conspirator must have intent to agree and intent to accomplish the purpose of the conspiracy. Some jurisdictions find knowledge sufficient to infer purpose. 5. Withdrawel as a defense: a. might be a defense to the object crime if D thwarted crime. b. Not a defense to conspiracy b/c change of mind does not erase agreement. c. MPC allows withdrawal as a defense in extreme cases to conspiracy. 6. Special Nature of Conspiracy a. Punishes danger of cooperative crimes – danger of combination. b. Inchoate crime—leads to another crime; finds liability at an early stage; object crime does not have to be complete. c. Never merges with felony – D can be guilty of conspiracy and felony. 7. Intent of Supplier of Goods – (knowledge further explored) – furnisher of goods may be criminally responsible if: a. he has a stake in the venture b. there is no legal use of the commodity c. Unusually large quantities of the commodity are being transferred d. The crime is very serious 8. Wheel Conspiracy – applied to an arrangement in which a “ringleader” (hub) participates with each of the conspirators (spokes), but these conspirators deal only with the ringleader and not with each other. a. single conspiracy—each spoke knows that the other sokes exist – there is a community interest b. Multiple conspiracies – each spoke does not know that the others exist – no community interest. 9. Chain Conspiracy – sequence of distribution of commodity (usually drugs) from importer to wholesale to retailer to consumer. 10. Pinkerton Rule—says all conspirators are guilty for expectable object crimes that follow from an agreement. (too extreme and leads to overkill at lower end of ladder) 11. Wharton’s Rule – when by definition a crime requires an agreement, this essential agreement may not be punished a second time as an additional conspiracy b/c it is already punished as the crime itself (i.e. buyer and seller of illegal lottery ticket.) a. Exception—does not apply when there are more people than necessary for the crime’s agreement (i.e. seller, distributor, and buyer of illegal lottery tickets) b. Exception – Does not apply when crime does not take place (b/c no double punishment. 12. No need to prove guilt of one conspirator to convict the exclusive conspirators b/c must have at least two conspirators 13. Same impossibility defense as attempt. 14. Possible to be a 2nd degree principal and not a conspirator if D had no part in the planning stages 15. When object crime is never committed, D can be guilty of conspiracy and not accessory before the fact or principal. 16. MPC Unilateral View—only need 1 general conspirator. The other can be a police agent and the D can still be convicted. a. Pro—still convict genuine criminal b. Con—not a dangerous combination.