1 I. Background A. Criminal v. Civil Law 1. what is at stake a. crim law the stakes are higher – life and liberty, sanction or stigma 2. Punishment is to vindicate/uphold the honor of the law as opposed to civil law which is to compensate the victim through monetary damages 3. Crim law is about stigma (a sanction) – moral opprobrium, other look down upon you 4. Crim cases are harder to prove bc more is at stake – burden is beyond a reasonable doubt. This minimizes mistakes II. Justifications of Punishment A. Dudley and Stephens – killed a man and ate him to stay a live. Convicted of murder bc no necessity. 1. can’t totally divorce law from morality a. an omission isn’t necessarily culpable 2. needed to draw the line somewhere – if allow here, then could lead to allowing other crimes B. Purposes of Punishment (3Rs and a D) 1. Expressive/Expiatory a. Retributivism – punish someone bc they did something bad with a bad mind (need mens rea and actus reus) i. Focus on moral aspect unlike the other 3 which focus on the consequences ii. Pay back for bad thing iii. Focuses on past – at the moment the crime is committed iv. Just Deserts v. Problem – sometimes not practical bc D isn’t going to do it again vi. Durkheim – if punishing there is a blessing to that i. It effects the honest people by healing their wounds ii. If we don’t punish our moral bounds will be weakened. iii. Utilitarian approach about society – so not a pure retributivist vii. Marxist Critique – just bc someone did an act doesn’t mean they deserve punishment i. Crimes come from capitalist society, which promotes greed and materialism and generates inequities ii. How can one deserve punishment if we live in a society that created it? viii. Oldest form of punishment 2 ix. Punish only bc D deserves it. – see p. 107 x. Retributivism isn’t the same as satisfying desire for vengeance, bc it isn’t about what the victim wants 2. Utilitarian/Consequentialist -look at present or future from the moment the sentence was passed down a. Deterrence -create a disincentive to commit the same crime in the future. (future focus) – most popular theory today i. Specific deterrence – specific to actual criminal ii. General deterrence – prevents others in society from doing it b. Restraint (incapacitation) -just get them off the street so they won’t commit crimes i. Focuses on time in prison ii. Problem -no emphasis on rehab so would keep people in jail for as long as possible c. Rehabilitation – want to get person to be good part of society i. Execution is not a possibility? ii. Focuses on the future of D Timeline Past (moment crimes was committed) – concurrence of mens rea and actus reus Present – while imprisoned Future – after D gets out Restraint Rehab of D Specific Deterrence General deterrence – begins when sentence is passed General deterrence retributivist C. Philosophers 1. Kant – rejects utilitarianism a. Penal law is categorical imperative 2. Marx a. Problem – not based on free will, focuses only on crimes motivated by money 3. Durkheim – not true retributivist, bc looks at future conditions of society and not the actual crime a. Punishment protects society thru its expiatory nature b. For honest people to come together w/other honest people 3 c. If no punishment, it effects society, not the criminal – need reaction re punishment and passion to make it work III. Elements of Just Punishment – Actus reus + Mens Rea = Crime A. Actus Reus – culpable conduct 1. Culpable Act – Voluntary Act a. Need a voluntary Act – conscious exercise i. Even if done under threat, still voluntary b. Involuntary act – act done by muscles w/out control by mind or act done by a person who is not conscious of what she is doing (concussion, sleepwalking, epileptic seizure) i. Not product of actor’s determination -i. Martin – public drunkenness crime assumes voluntariness into the statute. not voluntary bc forced to be there by cops. ii. Reflexive or convulsive iii. Unconscious or asleep (unless knew that one of the 2 would happen i. Unconscious – complete defense to homicide if not self-induced 1. People v. Newton -People v. Newton – shot cop but reversed conviction bc ‘unconscious’ when he shot cop. Didn’t voluntarily act to become unconscious so actus reus was negated ii. Mrs. Cogden – slept walked and killed daughter. Acquitted bc no actus reus at the moment of the crime 1. Under general deterrence it doesn’t make sense to punish a sleep walker bc you can’t deter an activity w/no actus reus 2. Retribution – acquitted bc no mens rea or actus reus 3. Rehab – therapy iv. Not involuntary if person just doesn’t remember or couldn’t control an impulse or unintentional or unforeseen consequences arise v. Can’t deter involuntary acts and retribution wouldn’t apply if not voluntary c. MPC Approach – 2.01 – must have performed voluntary act or failed to perform an act of which on is physically capable i. Involuntary – reflex/convulsive, asleep/unconscious, hypnosis, bodily movement not product of actor’s effort or determination, 4 ii. Omission – state defining the offense expressly makes failure to act a crime; civil law requires it iii. Possession – knowingly procured/received or been aware of control long enough to try to terminate it 2. Culpable Omission -only culpable when fail to act when there was a legal duty. a. Legal Duties i. Special Relationships i. Spouse ii. Parent/child iii. Shipowner/guest iv. Employer/employee v. Aunt/niece ii. Statute i. If required to stop and aid and don’t ii. Failure to report to military duty iii. Failure to file your taxes iii. Contract i. Lifeguard fails to aid ii. Only if it is your own job do you have a duty to do your job iv. Voluntary Assumption of Care i. Jones v. US – no obligation until commence the assumption of care or say that you will. Once you undertake you have a duty. Omission of a duty owed where that omission results in death of the one the duty is owed to is manslaughter. Duty must be immediate and direct cause of death. Having a legal duty is a critical element of the crime ii. No duty if you have to risk your life v. Creation of Peril i. When create the situation in which one is injured ii. Accidentally start fie and let it burn down house to collect insurance iii. Courts divided about accidental creation of peril vi. Duty of Landowner i. Night club owners that fails to provide adequate exits and fire escapes. vii. Duty to Control Acts of Others 5 i. Own kids on a skateboard that you helped them ge on and an elderly man is knocked over and dies ii. My be a duty to protect 3rd parties from your children b. In the past culpable omissions were less heinous then co-missions, but this is changing 3. thoughts alone do not a crime make a. would be too easy to convict for crimes if it were based just on thoughts b. flood of suits c. exceptions – treason, conspiracy in the past (not anymore) 4. Culpability a. Morality and legal culpability aren’t the same – if it was there would be a chilling effect on society i. Exception – good Samaritan laws B. Mens Rea – culpable state of mind 1. Categories of mens rea requirements a. specific intent – in addition to wanting to bring about the actus reus D must also have desired to do something further (the result) i. burglary – an unlawful entry into a dwelling at night w/intent to commit a felony therein i. actus reus is D’s intent; specific intent is to commit a felony once inside. It is the intent other than the one associated w/the actus reus. b. general intent – merely needs to be shown the D desired to commit the act which served as actus reus i. battery – the actus reus is the injury or offensive touching. As long as D intended the offensive contact that is all that is needed to be shown c. recklessness/negligence 2. Common Law Mental States a. Intent/knowledge b. Recklessness c. negligence 3. Hierarchy of Culpable Mental States -MPC a. Intent/purpose i. Consciously desired the result whatever the likelihood of it happening ii. Traditionally included knowledge iii. Not purposely if D doesn’t desire the result but is aware that conduct is certain to follow iv. Hardest to prove v. Faulkner, Cunningham – must have mens rea for particular crime you are charged w/6 b. Knowledge i. If aware that it is practically certain that conduct cause result, but not necessarily intending for the result ii. Knowledge and intent were together in common law bc hard to pull apart iii. Difference from purpose – awareness of consequences of act iv. US v. Jewell – positive knowledge and deliberate ignorance are equally culpable i. MPC – to act knowingly you don’t need positive knowledge but awareness of the high probability of the existence of the question 1. this includes those deliberately avoiding knowledge ii. policy – if required positive knowledge everyone would try to get out of it. c. Recklessness i. Conscious risk creation that is substantial and unjustifiable will lead to result ii. Ie, depraved heart murder iii. Regina v. Cunningham – aware of high risk of the harm caused by removing the gas meter d. Negligence i. No state of awareness is necessary – inadvertently creates a substantial and unjustifiable risk that is gross deviation from reasonable person care ii. No awareness that conduct will lead to harm 4. MPC Aspects of the crime – need one of the 4 mental states for each of the aspects a. Nature of conduct b. Attendant circumstances i. Objective fact or condition that exists in the real world when D engages in conduct c. Results d. Ie Burglary – an unlawful entry (nature of forbidden conduct), into a dwelling (attendant circumstance) at night (attendant circumstance) w/intent to commit a felony therein (result of conduct) -if no intent to do the last element, this negates mens rea requirement and no crime 5. Terms a. malicious – term of art – actual intention to do the kind of harm done or recklessness as to whether such harm should occur or not – R v. Cunningham b. mala in se – act that is inherently evil – murder, incest 7 c. malum prohibitum – things that are bad bc prohibited by state 6. Mistake -how it effects the mental state and whether or not he had appropriate mental state for the crime a. Even an unreasonable honest belief can negative the mens rea if it prevent D from having the requisite intent (R. v. Morgan) b. Traditional Approach – this distinction doesn’t really work i. Mistake of fact – exculpates the crime i. Illegal to hunt X. A knows this & goes out and kills what she think is Y, but it turns out to be X. ii. Mistake of law – ignorance of law is no excuse i. Need to convict otherwise undermines public policy – everyone would say they didn’t know ii. Misinformed advice about the law doesn’t excuse – state v. Hopkins iii. Exception – when you don’t know the law exists at all iii. Case may not be one or the other – they can be blended together c. MPC Approach – mistake of law or fact will excuse if it negatives the mens rea for the crime i. Problem is that statutes aren’t clear about mens rea d. Analytic Approach i. Mistake of fact – exculpates (honest belief w/out or not is reasonable will negative the mens rea for the crime) i. Prince – conviction upheld bc mens rea applied to taking a girl w/out dad’s permission, not about her age ii. R. v. Morgan(rape) – even an unreasonable honest mistake will negative the mens rea 1. conviction upheld bc no honest or real mistake that she wanted to have sex ii. Mistake as to a matter of civil law that has been incorporated into the criminal prohibition i. marriage law – State v. Woods (thought he was divorced, but did the divorce wrong and that didn’t matter) ii. property law – R. v. Smith – conviction overturned (mens rea applies to the whole crime, including property belonging to another and D thought property he damaged was his, but it wasn’t so negatives the mens rea.) mistake of fact 8 iii. Mistake as to the existence of a criminal prohibition or its meaning – usually ignorance is not an excuse applies i. Int’l mineral-criminal statute re shipment of dangerous items. Upheld conviction. Constructive knowledge was enough in that industry. Commission. ii. Exception – Lambert (registration requirement for felons from other states) – reversed conviction. Need actual knowledge of proof of probable knowledge. Need notice – some place where can actually find the law. Omissions aren’t culpable. This just makes cops job easier. iii. Hopkins – bad advice doesn’t excuse. Otherwise would create slippery slope, people would rely on blaming others to get off. iv. Mistake as to a law that justifies what would otherwise be a criminal act i. Barker, ii. Hopkins 7. Abandonment of Mens Rea a. Morissette v. US, 1952 – junk dealer case. i. Must be shown that D had knowledge that the property wasn’t abandoned to prove conversion. ii. Just bc intent isn’t in the statute doesn’t mean that it isn’t require iii. Intent is inherent in common law crimes iv. Public welfare offenses – no mens rea is required 8. Strict Liability Offenses a. Baker – stuck cruise control and was stopped for speeding. D claimed no actus reus. Court affirmed conviction. Doesn’t buy D’s actus reus argument. D was in absolute control of the cruise control so was an agent in speeding. Made distinction btn cruise control and a more essential function of the car, like the brakes. C. Proportionality 1. about protecting 8th amendment – cruel and unusual punishment 2. In re Lynch – convicted of indecency for 2nd time. 2nd misdemeanor is 1 to life in imprsion. Court said it violated constitution a. Nature of offense and/or offender degree of danger to society 9 b. Compared penalty w/other penalties that carried same punishment to see if others were more serious c. Compared w/punishments prescribed for same offense in other jurisdictions 3. retributivists like proportionality 4. need proportionality to create respect for the law 5. if everything was capital offense, then nothing would deter one from doing the worst offense. D. Legality 1. Principle that the law must be certain 2. Law shouldn’t flow from some persons head. 3. Hopkins fits in this – wouldn’t allow the state’s attorneys mistake of law be an excuse bc it would mean that the law is subjective and flowing from the state’s attorney’s mistake. 4. Why legality is good a. Must be defined with sufficient precision to serve as a guide to lawful conduct – for the people – notice b. To confine the discretion of police and prosecutors – to avoid arbitrary, discriminatory arrest 5. Judges shouldn’t create new crimes though common law 6. Should operate prospectively (no ex post facto crimes 7. Shaw v. House of Lords – the extreme a. Judge made law to save public morals. b. It became illegal to prostitute on the street so pimp made a book w/girls pics in it. Convicted of conspiracy to corrupt public morals. D claimed law was vague and didn’t include his crime. Court didn’t but bc wanted to enforce morals. Need to step in when legislature doesn’t. c. Criticized case 8. Keeler, 1970 – extreme the opposite way of Shaw a. Divorced man knees x-wife in pregnant tummy, fracturing babies skull. It is still born b. Court lets D off the hook, bc 187 intended to exclude killing unborn fetus. Looked at intent of the statute and it didn’t include infeticide. If allowed the crime it would be ex post facto crime. D had no notice 9. Papachristou v. Jacksonville, 1972 a. Reversed vagrancy convictions bc ordinance was unconstitutional b. Void for vagueness i. Fails to give person of ordinary intelligence fair notice that his conduct is forbidden ii. Encourages arbitrary and erratic arrests IV. Homicide 10 A. Murder – an unlawful killing of a human being w/malice aforethought 1. 4 types of Murder(way to make out mens rea – malice aforethought) a. Intent to kill i. Premeditation and deliberation – 1st degree i. Whether intent to kill and killing were in a short period of time is immaterial if the killing was intentional, willful, deliberate -Carroll, PA ii. CA approach – more scientific approach 1. evidence of planning, motive that indicates a pre-existing reflection re killing, manner of killing that is so particular that it must have been planned iii. Some statutes include lying in wait, poison and torture ii. Non-deliberate and not-premeditated – 2nd degree b. Intent to do serious bodily injury i. Usually 2nd degree c. Depraved heart – murder committed w/an abandoned and malignant heart i. Conduct creates unjustifiable risk of death or serious bodily injury (extremely high risk) i. Similar to involuntary manslaughter ii. Usually 2nd degree iii. MPC – murder committed recklessly under circumstances manifesting extreme indifference to the value of human life. i. Presumed if committed during a felony 1. Merges depraved heart w/felony murder iv. Mens rea -recklessness d. Felony murder i. 1st degree when committed in the perpetration or attempt to perpetration any arson, rape, robbery, burglary, mayhem, kidnapping ii. There are some that aren’t 1st degree. iii. MPC – no felony murder 2. MPC Approach a. Need the following i. Purpose (premeditated) ii. Knowingly (premeditated) OR iii. Recklessly under the circumstances manifesting extreme indifference to value of human life (depraved heart) 11 b. uses mitigating and aggravating circumstances, not premeditation to determine 1st degree/2nd degree 3. read statute narrowly so as to not expand the scope the legislature wanted B. Felony Murder -when an unlawful killing occurs in the commission or attempted commission of a felony it shall be murder and the malice aforethought shall be posited and need not be proved 1. still need mens rea for predicate felony 2. Purpose a. Deter accidental killings b. Makes it easy for prosecution i. Don’t need to prove mens rea for the murder so expands scope of liability for murder to situation where even recklessness cannot be proved ii. Precludes the provocation formula iii. Precludes use of diminished capacity c. Fixes the degree of murder -predicate felony sets the degree (1st or 2nd) 3. Objections a. Departure from basic principles of criminal law b. Inevitably leads to disproportionate verdicts and sentencing c. May not really deter accidental killings 4. MPC Approach – murder committed recklessly under circumstances manifesting extreme indifference to the value of human life. Presumed if act is committed during a felony a. done away w/felony murder and subsumed it into depraved heart murder rule (210.2(1)(b)) b. Named felonies c. Rebuttable presumption – still have to prove the facts re predicate beyond a reasonable doubt but can use it is as sufficient evidence to find reckless and indifferent to life 5. Limitations (don’t necessarily apply in every jurisdiction) a. Certain Felonies i. Inherently dangerous felonies i. Determination of a dangerous felony – look at felony in the abstract and not based on the particular facts (otherwise it will be likely FM will be permitted if a killing has occurred) ii. Named felonies in the statute 12 iii. Crimes that were felonies at common law – rape, sodomy, robbery, burglary, arson, mayhem, larceny iv. Malum in se felonies b. Time period in which felony is in process c. Merger doctrine – no independent felonious purpose i. Predicate felony must not be one involving personal injury. If it is it merges into one crime ii. Ie, assault w/a deadly weapon that resulted in death, mayhem. iii. Felonies that aren’t sufficiently independent – armed robbery, larceny, burglary iv. This is good for D bc it is only 1 crime d. Agency Theory – in furtherance theory (based on who killed) i. Person committing the homicide must be the felon or the felon’s accomplice ii. cop, bystander, victim killed felon – no felony murder i. If V kills felon, accomplice isn’t liable for the murder bc no malice aforethought bc not committed in furtherance of the crime iii. Accomplice can’t be held liable for the death of co-felon. Basically bc it is a justifiable homicide or assumption of risk. iv. shield exception to agency theory – if felon grabs V and uses as a shield to one shooting felon, then felon is liable i. 2nd felon could be liable as well e. Proximate Cause Theory – Alternate theory – must be natural and probable result of felony i. doesn’t matter but whose hand the homicide occurred as long as it was foreseeable. – rejected in most states f. Limitation based on who is killed i. if felon dies as he flees and after using someone as a shield who dies and accomplice is the only one left, what is the charge? i. Liable – mens rea isn’t required for felony murder – accomplice liability theory – liable for foreseeable occurrences as long as they are not a departure from the common design C. Heat of Passion Voluntary Manslaughter – an intentional killing committed under circumstances that mitigate, but don’t excuse the crime 13 1. Requirements a. Elements of murder i. Mens rea – same as murder, malice aforethought b. Provocation formula – need all to go to the jury i. D was provoked at that instance (doesn’t count if one has known for years about something) -subjective ii. A reasonable person would have been provoked – i. Both objective and subjective views – see below iii. D did not cool off – subjective i. rekindling effect – If too much time passes btn initial provocation and the killing, then D cooled off and can’t provocation as a defense ii. White bear – killed 20 years later. No provocation iii. some courts allow, others don’t iv. A reasonable person would not have cooled off -objective c. Most jurisdictions – intentional homicide committed under extenuating circumstances that mitigate, but don’t excuse/justify the crime d. Provocation negates the malice aforethought e. MPC Approach – what would otherwise be murder is committed under the influence of extreme mental/emotional disturbance for which there is reasonable explanation or excuse. 2. Limitations on Provocation a. Mere words are not enough provocation b. Finite list in the statute of ‘adequate provocation as a matter of law -Giourard 3. Determining Reasonable Provocation a. Common law – physical battery, spouse in bed, mere words weren’t enough b. Maher – men of fair average mind and disposition, unless the person whose guilt is in questions can be shown to have some peculiar weakness of mind/infirmity of temper, not arising from wickedness of heart or cruelty of disposition c. MPC Approach -Reasonableness is determined from the viewpoint of a person in D’s situation under the circumstances as he believes them to be i. Subjective/objective approach ii. No provocation necessary 4. Objective v. Subjective Standard for determining Provocation a. For Objective 14 i. if evaluate abnormal individual, it decreases the incentives for him to behave as if normal ii. factors alone are enough to make us scared of D in the future b. For Subjective i. Unfair to hold people to same standard, as we don’t all have same temper ii. Naturally perceive those as less culpable when we could see ourselves in that situation 5. Rationales of provocation defense – jurisdictions could go either way on this a. As a partial excuse i. Pro -Concession to the frailty of human nature. The greater the provocation, the more ground there is for attributing the intensity of the passion and lack of self control to the extraordinary situation. Slighter provocation is the basis for ascribing at to a susceptibility to intense passion (an unusual deficiency) i. Majority view ii. Con – reasonable people don’t kill. Cheapens life and our ideas of responsibility for maintaining the provocation b. As a partial justification i. Pro – moral justification for acting in such a way against someone who has caused one serious offense. Provocation usually involves moral wrongs on both sides ii. Con – morally questionable that there is less societal harm in victim’s death bc they may have done something wrong 6. Sexual infidelity as provocation – this benefits the men and so justifies men’s violence against women if we allow men to get off for killing their spouse/paramour a. It allows for honor and treats women as property 7. Homosexual advances as provocative acts a. Some courts allow it, others don’t b. Furthers homophobia – need to ensure men have a way of maintaining their manhood c. Kind of like allowing white men to kill a black man for whistling at a white woman 8. Difference from murder is the mens rea D. Involuntary Manslaughter – an unintentional killing based on conduct creating an unjustifiable risk of harm 1. Criminal Negligence a. Gross negligence or recklessness – Most require more though not clear exactly what it is 15 i. Disregards a high risk of death or serious bodily injury OR ii. Awareness that conduct is creating a risk b. Tort negligence -A few states only require ordinary negligence – unintentional homicide resulting from conduct creating an unreasonable risk of harm c. Simple negligence when D was using inherently dangerous instrumentality (not a car) d. MPC – no involuntary manslaughter, just recklessly committing a homicide 2. Mens rea – recklessness 3. kind of like depraved heart – need to argue both in the alternative. 4. drunk driving, driving at high speeds 5. unlawful act manslaughter – unintentional homicide in the commission of an unlawful act not amounting to a felony. E. Death Penalty 1. must not be cruel and unusual punishment 2. scheme must not be arbitrary and capricious 3. Lockett-Eddings Line of Cases – narrow consideration in death penalty cases were unconstitutional a. Can’t be mandatory in order to cut down on arbitrariness b. Need particularized consideration of the circumstances c. Mitigating/aggravating circumstances -character, family background, record, circumstances of the offense 4. guided discretion statute cases 5. require automatic appeal, guidelines for jury, bifurcated adjudication and sentencing process 6. no DP if don’t actually kill the person, intend that killing take place or that lethal force will be employed 7. no DP for rape – disproportionate and excessive 8. Standard a. Gregg v. GA i. automatic appeal, ii. individualized sentencing -guideline for jury that aren’t too narrow (especially mitigating and aggravating circumstances) b. Furman i. Can’t be so random that it is like being struck by lightening c. No mandatory appeal for 1st degree murder V. Attempt – classic inchoate crime A. Elements 16 1. mens rea – intent to commit the target offense (heavily mental crime) a. CL -specific intent to do the crime (act and result) b. traditional rule -need even for strict liability offenses c. MPC – need purpose d. Attempt can’t be committed recklessly/negligently 2. small actus reus – how far back in the formation of the crime should we go back and intervene? Mere preparation isn’t enough a. Proximity Approach -dangerous proximity to success i. Old Test – final step must have been taken ii. Focus not on what D has done but rather on what remains to be done iii. For this approach – act should not be punished except to prevent some harm which is likely to follow that act i. Deterrence is the point of attempt law iv. Objections – neutralizing dangerous individuals, not deterring dangerous acts is the real purpose of attempt law i. Too narrow in scope, not permitting convictions in enough cases b. Probable Desistance Approach – Locus Penitentiae i. When it seems objectively clear that the D would not desist from committing the crime then attempt has occurred ii. In practice this is like the proximity test iii. Objection – artificial, no basis for knowing when the average person would desist c. Equivocality approach i. Attempt requires unequivocal behavior that crime will be consummated ii. Cannot be ambiguous or unclear iii. Berger case – sterilization of medical equipment for abortion – you don’t sterilize medical equipment randomly iv. Objections i. Restricts value of confessions – can’t use them. Can only use D’s acts. ii. Could bar conviction where D whose intent was otherwise established had engage in the last act before carrying out his intent d. MPC – act or omission constituting a substantial step in a course of conduct planned to culminate in the commission of a crime i. Must be strongly corroborative of purpose 17 ii. Focuses on what has been done, not on what remains to be done iii. Not much is required iv. Broadens scope of attempt liability in ways that are consistent w/restraining dangerous persons v. It requires some firmness of criminal purpose vi. Can look at D’s statements vii. Lying in wait, enticing B. Merger – if crime is consummated, there is only one crime C. Cannot be convicted for an attempted attempt – cannot be convicted of crimes that of the attempt variety D. Shooting dead people – if thought the corpse was alive when you shot it, then had required mens rea for attempted murder E. No attempt for a Reckless act F. Defenses to Attempt 1. Impossibility (pretty manipuable defense – can argue both ways) a. Common Law approach i. Impossibility of law – does excuse i. Think what you are doing is a crime, but it isn’t a crime ii. Impossibility of fact – doesn’t excuse i. Had situation been as D thought, it would have been a crime ii. Pickpocket an empty pocket iii. Inherent impossibility – an reasonable person would know that there is no way you can kill someone by sticking pins in a voodoo doll iv. Problems – can characterize any fact situation as either one b. MPC approach – eliminates impossibility as a defense i. Factual impossibility – no defense. If had mens rea to do the crime, then it is an attempt bc believed what it was he was doing was crime even though factual it couldn’t have been ii. Legal impossibility – no attempt if tries to something he thinks is a crime, but isn’t. iii. Inherent Impossibility – prosecutors discretion to dismiss if so unlikely to culminate in a crime iv. Problems i. Impossibility cases necessitate a close look at mens rea ii. Exact language of statute sometimes militates against conviction 2. Abandonment a. Common law – not allowed – crime of attempt is already made out 18 b. MPC – allowed if there is a complete and voluntary renunciation of criminal purpose i. V’s dissuasion from commiting the crime – could go either way i. People v. McNeal – upheld conviction bc V dissuaded D and that wasn’t voluntary ii. Ross v. state – reversed conviction bc D changed his mind on his own free will ii. Involuntary -motivated by circumstances not present at the beginning of the conduct i. changes mind when realizes going to get caught ii. generalized fear of apprehension iii. postponements iv. victim dissuaded D from committing crime – People v. McNeal G. Punishments 1. common law – a. traditionally – misdemeanors b. today – reduced factor of punishment for the completed crime 2. MPC – punishment is the same as for target offense except for crimes punishable by death or life imprisonment VI. Conspiracy – an agreement btn 2 or more people and an intent to thereby achieve a certain objective which is an unlawful act or a lawful act by unlawful means and intent to enter agreement – heavily mental crime (MPC it needs to be a crime, they agree to commit, though really under common law it needs to be a crime otherwise have Shaw situation) A. The agreement 1. no meeting of the minds necessary 2. actions alone are enough -a nod B. Mens Rea 1. common law – specific intent to agree and commit the object crime (need to intend the actual act that happened) 2. MPC -purpose or intent of promoting or facilitating commission of crime 3. knowing supplier – lauria a. need direct evidence OR look at surrounding circumstance to establish tacit agreement (ie, special interest in the activity (kick back, inflated price, no legitimate use of goods/services, disproportion volume of goods supplied; aggravated nature of the crime itself C. Actus Reus 1. Common Law 19 a. agreement to commit an unlawful act of lawful act by unlawful means. b. No overt Act required c. Nod is enough d. Aiding and abetting evidence is good to show agreement 2. MPC a. agreement to commit a crime or aid in the commission of crime or attempt to commit a crime. b. Overt act is required for unserious crimes. D. wheel w/no rim means multiple conspiracy, bc don’t know about the other conspiracies – Kotteakos 1. wheel w/a rim means single conspiracy E. chain – presumed/constructive knowledge of actions of others involved AND interdependency of the whole scheme necessary to convict -Bruno F. Benefits of conspiracy law for prosecutors 1. permits joint trial 2. venue – can prosecute anywhere one of the co-conspirators is 3. pinkerton doctrine – conspirator can be liable for all substantive offenses committed by other co-conspirators, even if can’t make out aiding and abetting charges a. MPC rejects this doctrine 4. vagueness – malleable boundaries a. alvarez – even though have no idea if he knew there was drugs in the washers still got popped for conspiracy. 5. hearsay exception -hearsay can come in but only if it is made in furtherance of the conspiracy, not after the fact 6. enhanced punishment – no merger. Can be charged w/conspiracy and the substantive crime a. except in MPC areas G. conspiracy, like felony murder are fundamental departures from criminal law 1. don’t need to make out mens rea and actus reus to be convicted of a substantive crime H. Defenses -Withdrawal 1. Abandonment -Avoiding Liability for Conspiracy itself a. Common law – once elements are made out, then can’t get out of it (Even if substantive offense hasn’t occurred, crime is complete upon agreement) b. MPC – affirmative defense that actor thwarts the success of the conspiracy under circumstances manifesting a complete and voluntary renunciation of criminal purpose i. Won’t be charged w/substantive crime even if you don’t thwart 20 2. Withdrawal for other purposes (to avoid liability for later substantive crimes, but not previously committed ones) a. Common law – permitted if D announces his w/drawal to all co-conspirators b. MPC – permitted if D advises co-conspirators of abandonment or tells cops about the conspiracy I. Punishment 1. Common Law -conspiracy and the crime itself 2. mpc – can’t be convicted of both – minority view J. Attempt, Impossibility and Conspiracy – can be used re conspiracy 1. legal impossibility – no conspiracy 2. factual impossibility – crime of conspiracy is complete upon agreement or some basic overt act in furtherance of the conspiracy. Can still be convicted of conspiracy and depending on the jurisdiction an attempt charge K. Why Punish? 1. inchoate crime – stop it before it happens 2. dangers of group criminality a. division of labor b. momentum once the crime get started VII. Accomplice Liability A. Common Law Categories 1. Principal in 1st degree – one who does the crime 2. Principal in 2nd degree – aids, counsels, comforts, commands, encourages P1 to do deed a. AKA Complicity accomplice liability, vicarious liability, aiding and abetting, accessorial liability 3. Accessory before the fact – one who isn’t and cannot be present at the crime but aids/abets, procures, commands 4. accessory after the fact – relieves, comforts, assists felon knowing crime has been committed a. need to have more than knowledge – need to be intending to help b. since it is heavily mental crime need an increased level of mens rea bc actus reus is so small – need to actively embrace the goal of the crime B. MPC 1. each party can get the same punishment, but accessory after the fact is punished less C. Elements 1. mens rea – a. intent and knowledge to aid/help and intent to commit the crime b. Prevailing view (though not the only view) -in order to aid and abet, it is necessary that D in some sort associate with the venture that he participate in it as in something that he wishes to bring about that he 21 seek by his action to make it succeed. All the words used, carry an implication of purposive attitude towards it c. Minority view – knowledge is enough for serious crimes d. MPC -Purpose 2. actus reus – need pre-concert w/principal to be convicted of accomplice liability D. Special Problems 1. knowing supplier 2. inconsistent verdicts – actor may mitigate down to heat of passion voluntary manslaughter and accomplice who persuaded actor into doing the killing would be an accomplice to murder E. Exception – when one adventurer departs completely from concerted action of the common design and kills, the other is not guilty of manslaughter bc it is not reasonably foreseeable or part of the plan F. Can use this instead of felony murder or in the alternative VIII. Exculpation A. Principles of Justification 1. focuses on the act -not a crime at all bc did a good deed B. Principles of Excuse 1. focuses on actor – it was a bad act, but doesn’t carry full responsibility C. Self Defense – rooted in necessity 1. 2 views a. Sanctity of human life – only as a last resort can you use deadly force b. Don’t tread on me – American view 2. Common Law a. Elements i. Defender must perceive a threat of deadly peril or serious bodily harm ii. Threat is imminent iii. Threat is unlawful iv. These beliefs are reasonable b. Imperfect self defense – if kill another and it is unreasonable need, three ways courts deal with it i. Murder – most often ii. Voluntary manslaughter -few iii. Involuntary manslaughter – very few 3. MPC – justifiable if it is immediately necessary to protect oneself a. Immediately necessary – expands argument beyond imminence. 22 b. Imperfect Self Defense Limitation – if actor is reckless/negligent in having belief of the force necessary, then this is not excused i. Will mitigate for intent to kill, but not depraved heart or criminally negligent homicide c. Not widely followed 4. leads to complete acquittal 5. jury nullification – sometime D behaves as a vigilante and lets them off even if doesn’t meet all the elements 6. Limitations a. Doctrine of Retreat – conflict btn law and morality i. MPC -Modern view – surrender possession and comply w/demand rather than resort to deadly force or serious bodily injury i. retreat is about the defender – ii. 1/2 jurisdictions -need to retreat if one is coming after you if can retreat with complete safety ii. No retreat Rule -True Man Doctrine – individual autonomy, shouldn’t be forced to be a coward iii. Don’t have to retreat if you are in your home – early common law, defense of home was the same as defense of person iv. Don’t have to retreat if force is nondeadly v. abbott b. Initial Aggressor Doctrine i. Aggressor in encounter may avail themselves of self defense ii. Aggressor’s victim in defender oneself is using lawful force iii. If initial aggressor withdraws in good faith and lets the other know, then can restore right of self defense if V comes after him i. V use cannot be self defense now, bc no aggressor iv. Peterson – gun and provoking language caused him to tbe the aggressor after Keitt already withdrew 7. BWS a. perception of the threat Issue b. Imminence Issue – what is imminence c. Kelly – allowed evaluation of expert testimony to talk about BWS bc relevant to Kelly’s state of mind and her belief as the imminence and perceived threat. D. Defense of Another 1. standing in one’s own shoes – look at what defender thinks and whether he thinks the other is threatened 23 2. standing in the shoes of another – harder bc self defense doctrine needs to be made out as to the person being defended E. Defense of Property 1. can’t use more than reasonable force to protect property a. deadly force is not reasonable 2. non deadly force is okay for unlawful entry 3. can use deadly force if there is a threat to the person or another in the home F. Bystanders – if one in self defense shoots the offender and also kills a bystander, not liable, unless shoots recklessly and wildly(involuntary manslaughter)