1 Criminal Law Outline Actus Reu 1. Voluntary Act: -We only punish someone when their act is voluntary. -Without the consent of the will, human actions cannot be considered as culpable. -Someone who is forced to do something will not have acted voluntarily. -Someone who has a preconditioned response may be deemed to have acted involuntarily if it can be proven that his response was what caused the criminal act. -Being intoxicated might constitute a defense, but if that state is reached voluntarily, it will not constitute any defense. Martin v. State: -Drunk person who is dragged out of the house and arrested for “appearing” drunk in public. -Example of the court holding that an act must be voluntary in order for culpability. State v. Utter: -Man who is drinking heavily kills son when no one is around. -Claims that he has a “conditioned response” and therefore should be let free. -Court upholds concept of conditioned response, but says its not useful here because no one knows what happened in the room. 2. Omissions: -An omission to act does not constitute a criminally culpable act unless: 1. There is a legal relationship, and; -A moral duty is not a legal duty. -When is there a legal relationship: 1. Where a statute imposes a duty. 2. Where there is a certain status relationship. -Husband/Wife, Father/Son. 3. Where one has contractually obligated himself. 4. Where one has voluntarily assumed the care of another and thus prevented others from rendering aid. 2 5. Where one has created the perilous situation. 2. Defendant knows plaintiff is in peril, and; 3. Defendant willfully or negligently fails to act. -A friend relationship does not create a contractual duty to act. -The line between omission and act is very fine, analyze it carefully. -Sometimes making someone act can be worse than allowing them not to. -Physicians: -Have a legal duty to act, however an omission to act when treatment is futile (in the opinion of qualified medical personnel) does not become criminally culpable. People v. Beardsley: -Guy allows his mistress to take a bunch of morphine and she dies. -Example of no legal duty to provide care because there was no legal relationship. Barber v. Superior Court: -Doctor stops providing life-support to a man in a vegetative state. -Example of the court seeing continued life-support as above and beyond the call of duty. Not legal duty to continue support once it is futile. Mens Rea 1. Meaning behind Mens Rea: -A guilty mind; a guilty or wrongful purpose; a criminal intent. -An act does not make [the doer of it] guilty, unless the mind be guilty; that is, unless the intent be criminal. -Reasoning behind having Mens Rea: 1. Retributive: someone did something wrong and they must be punished. -If a “wrong” act is done, but there is no “wrongful” state of mind, then we can’t condemn them for having a bad character that we can blame. Someone can only be morally blameworthy if they have the proper state of mind. -If someone is not criminally culpable, they may still be civilly liable. 2. Utilitarian: try to deter others from acting and prevent this person from being able to act again. -We have an obligation to protect the society as a whole, and we can do this by removing those people who we know are capable of having a morally 3 blameworthy mind. It works properly to deter people because we can’t punish people who don’t have intent to act, because accidents just happen. But if people know they will be punished for intending to do something, then they will think twice about doing it. 2. Intent: -One “intends” the natural and probably consequences of his actions. -Intent can be inferred from surrounding circumstances. -Common Law Intent: -Includes not only those results that are the conscious objective of the actor – what he wants to occur – but also those results that the actor knows are virtually certain to occur from his conduct, even if he does not want them to arise. -Knowledge for Intent: -A person knows or acts knowingly or with knowledge of the results o his conduct when he is consciously aware that such result is practically certain to be caused by his conduct. -Transferred Intent: -If one tries to kill A, and kills B instead, he is culpable for that killing. -If one tries to kill A, kills A, but also kills B, he is culpable for both killings. -Reasoning behind allowing this: -Retribution: -Defendant had the moral culpability to kill and he did in fact kill someone. -We want justice to be served in because of this. -Utilitarian: -We want to deter people from trying to kill others intentionally -Aggravated Battery: -Defendant must have a conscious objective of causing permanent disability. People v. Conley: -Guy who hits another in the head with a wine bottle during a party. -Example of one “intending” the natural consequences of his actions. Defendant should have “known” the person would be seriously injured, and therefore he must have intended to seriously injure him. 4 3. Knowledge: -Model Penal Code definition: -When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence. -One State Criminal Code: -A person acts knowingly or with knowledge with respect to attendant circumstances when he is aware that those circumstances exist. -Be able to determine what constitutes “knowledge” in each jurisdiction. State v. Nations: -Woman hires an underage dancer whom she claims to not “know” is underage. -Example of court not using the Model Penal Code and using a state criminal code, therefore the fact that the defendant turned a blind eye to the possibility of the girl being underage does not change the fact that she did not “know” for certain that the girl was underage. 4. Statutory Interpretation: -In determining how a statute must be read, the court will first look at what is written. If the ambiguous clause can be corrected by an analysis of the punctuation, then they will do that. -If the clause is still ambiguous, they will look at the legislative history of the case to determine what the clause should mean. United States v. Morris: -Guy who creates computer virus but does not intend it to cause damage. -Example of the court interpreting a statute in a way that limits what “intentionally” modifies. Morris didn’t have to intend the damage, therefore he is guilty. 5. Mistake of Fact: -If a defendant acts with a “good faith” belief, even if that belief is objectively unreasonable, then he will not have the criminally culpable intent required to convict. -If the Jury finds that the defendant truly believed something, regardless of how crazy it may seem, then the jury must find him innocent, if intent is part of the statute at bar. -However, intent can also be determined based on surrounding circumstances. 5 People v. Navarro: -Person who take 4 wooden logs he thought were abandoned. -Example of the court using a “good faith” test, and since the jury did not determine whether the defendant actually took the logs with the belief that they were abandoned, the case was remanded. 6. Mistake of Law: -Mistake of law does not mean that a mistaken interpretation of the law is a defense, but only a law that is mistaken is a defense. -Based on Model Penal Code: -The defendant reads a statute to permit an action, and the statute actually permits the action, and the statute is subsequently overturned, then the defendant should be acquitted. -Other View: Dissent in Marrero: -If someone’s basis for misunderstanding a statute is based on an official statement of law, then the person made an honest, reasonable “mistake,” and therefore cannot be acting with intent. People v. Marrero: -Off-duty correctional officer is arrested for having a gun in a night club. -Example of the court using the model penal code to determine that mistake of law only works when the defendant proves that a law allows something, not simply that he had a reasonable belief that it permitted something. Causation -Both actual cause and proximate cause must be found. If actual cannot be found, then resort to substantial factor test. 1. Actual Cause: -Cause in Fact. -“But For” Rule: -Is the antecedent but for which the result in question would not have occurred. -Cause of Death: 6 -Something that accelerates death will be considered the cause because but for that something death would have occurred later. We’re all going to die someday, and killing someone obviously accelerates their death. Something kills someone, or accelerates their death, will be considered the cause in fact of their death. -Substantial Factor Test: -If more than one act occurs at the same time in causing something to happen, the court will determine what acts were substantial factors in causing the outcome, and those factors will be deemed to have “caused” the outcome Oxendine v. State: -Girlfriend pushes son into toilet and then father beats son. Son dies. Who caused the death? -The court could not prove that defendant in anyway accelerated the decedent’s death, therefore the father’s actions were not the “cause” of death. 2. Proximate Cause: -An intervening cause may break the chain of legal causation from being applied to Defendant’s acts. If: 1. If the intervening act is coincidental and unforeseeable. -Example in Kibbe. 2. If the intervening act is in response and unforeseeable and abnormal. -Example in Kibbe. Kibbe v. Henderson: -Defendant gets decedent really drunk, robs him, leaves him on the side of road. -Decedent ends up wandering into traffic and gets hit by a car. -Examples of proximate cause: 1. Being hit by a car was a coincidence to being left on the side of the road, but not unforeseeable. 2. The plaintiff wandering out into traffic was a response to being left on the side of the road, but not abnormal, and thus foreseeable. Criminal Homicide 1. Intentional Killings, Degrees of Murder: 7 -First Degree Murder: -Homicide with Malice (or intent to kill). This may also be called Expressed Malice. -Some states require premeditation: (Other’s do no require premeditation) -Different Views of Premeditation: 1. Can occur in the “Twinkling of an Eye.” 2. There must be some period of time between the formation of the intent to kill and the commission of the actual killing. -Ways to determine if there is premeditation: 1) Want of provocation from the deceased; 2) The conduct and statements before and after the killing; 3) Threats and declarations of the defendant before and during the course of the occurrence giving rise to the death of the deceased; 4) Ill-will or previous difficulty between the parties; 5) The dealing of lethal blows after the deceased has been rendered helpless; 6) Evidence that the killing was done in a brutal manner State v. Schrader: -Defendant enters gun and coin shop and kills person who he thinks didn’t give him an authentic German sword. -Example of premeditation only requiring a “twinkling of the eye.” State v. Forrest: -Defendant walks into hospital and commits a mercy killing on his father. -Example of the court using surrounding circumstances to determine premeditation (in a jurisdiction that requires a period of time between). -Second Degree Murder: -Intent to cause serious physical injury (anything other than intent to kill or premeditation). Midgett v. State: -Father who has been drinking heavily beats his son to death. 8 -Example of no intent to kill, but rather an intent to cause serious physical injury, therefore it is only Murder 2, not Murder 1. 2. Intentional Killings, Manslaughter: -Mitigation of Murder to Manslaughter: -Where the Prima Facie elements of a murder charge have been met, but there are mitigating factors that drop it down to manslaughter. -Rule of Provocation: 1. There must be adequate provocation, and; -Some act that was calculated to inflame the passion of a reasonable man and tend to cause him to act for the moment from passion rather than reason. -Words are not enough to constitute adequate provocation unless they are accompanied by conduct indicating a present intent and ability to cause bodily harm. -Informational words can be more provoking than insults. 2. The killing must have been in the heat of passion, and; 3. It must have been a sudden heat of passion, and; -The killing must have followed the provocation without a reasonable opportunity for the passion to cool. 4. There must be a causal connection between the provocation, the passion, and the fatal act. Girouard v. State: -Guy kills his wife after she insults him a bunch of times. -Example of not enough provocation to be considered a mitigating factor. 3. Unintentional Killings, Unjustified Risk Taking: -Intentional Malice may get Intentional Murder 1 or 2. Implied malice may get Unintentional Murder 2. -The possibility of implied malice, in the absence of intent, may constitute a Murder 2 charge. 9 -When looking at a case, determine whether it was an intentional act or not, then look at the state of mind. Intentional = Expressed Malice. Unintentional = Determine if there is implied Malice. -Implied Malice: -An abandoned and malignant heart. -Factors in determining implied malice: 1. A high probability of death due to the conduct, and; 2. The defendant has a subjective appreciation of the risk, and; -Gross negligence does not constitute an appreciation. 3. A base antisocial purpose or motive behind the act. -Ex: trying to protect marijuana leaves. Berry v. Superior Court: -Guys fighting pit bulls kill a child -Example of a court finding Prima facie elements of implied malice: 1. There may be a high probability of death (remanded) 2. The defendant appreciated this risk. 3. His base purpose was to bread fighting dogs (something which was against the law). -Justifiable or Excusable Unintentional Homicide: -Proper excuse for manslaughter is the use of ordinary caution. Test: would a person of reasonable prudence have engaged in this act, regardless of ignorance, or good faith. State v. Williams: -Father and mother who loved their baby yet let him die of a tooth problem. -Example of people not using ordinary caution, and therefore they were not excused from negligent manslaughter. 4. Unintentional Killings, Felony-Murder: -Felony Murder 1: -The intentional commission of a felony takes away the mens rea necessity of a murder charge concerning a death: -Formula: Felony (including mens rea) + Death + Causation = Murder. 10 -Causation: -As long as the homicide is the direct causal result of the felony the felony-murder rule applies whether or not the death was a natural or probable consequence of the felony. -Public Policy behind it: -The felony-murder statute is supposed to deter those engaged in felonies from killing negligently or accidentally. Therefore people who are not dissuaded from committing a felony are encouraged to act a little more safely. -Streamlines litigation -Model Penal Code: -Felony-Murder is indefensible in principle. People v. Stamp: -Guy robs a store and someone dies due to a pre-existing heart condition. -Example of the formula at work: guy robs bank, woman dies during robbery and because of the robbery (even though she had a pre-existing condition, it doesn’t change the fact that, but for the robbery she would not have died then), therefore there is felony murder 1. People v. Fuller: -Defendant was burglarizing vans; he then attempts to drive away, and hits someone and kills them while trying to get away. -Example of a death caused while in the commission (getting away constitutes part of the commission) of a felony (burglary). Therefore felony murder is applied. -Felony Murder 2: -For felonies that are not enumerated in a murder 1 statute. -Two Tests to determine whether felony murder may apply to the felony statute: 1. Inherently Dangerous to Human Life Test: -Three Methods (Spectrum): 1. Court looks at the elements of the statute in the abstract and determines if there is a way to violate the statute through an act that is not inherently dangerous to human life. 11 2. Court looks at the facts of the case to determine whether the felony statute was violated in a way that was inherently dangerous to human life. 3. Other courts will combine both tests into one. -Public Policy Behind this test: -People who are engaged in a felony that is not inherently dangerous to life will not be able to foresee the possibility of death and therefore the felony murder statute will not deter. 2. Merger Test: -Felony murder cannot be applied to situations where: 1. The felony is an integral part of the homicide, and; 2. Which the evidence produced by prosecution shows to be an offense included in fact within the offense charged. -Public Policy Behind the test: -Once the defendant is willfully engaged in a felony that is an integral part of a homicide, that person will not be deterred by a felony-murder charge. -Applying felonious assault to felony murder would remove the distinction between assaults that end in death and murders. It would take away the need for the jury to find malice. -Causation: -Death must be a consequence of the felony and not merely coincidence. -Deaths caused in the furtherance of a felony will also qualify as felony murder, however if it is not something used in the furtherance of a felony, then it will not be felony murder. -Adversary Rule: -Co-Felons are liable for all acts committed by their partners. -Felons are not liable for deaths caused by the actions of someone who is acting as an adversary to a felony. -Public Policy: 12 -If someone else acts in a non-criminally culpable manner (an adversary) then how can that death be transferred to a felon as a culpable act. -One other State View: -If anyone dies during a felony, other than a co-felon, than the felons will be held liable for that death. People v. Burroughs: -A safe proclaimed healer tries to heal someone with Leukemia by giving deep tissue massages. -A statute made it a felony to practice medicine without a license. -Example of a statute that can be violated through actions that are not inherently dangerous to human life, thus felony-murder 2 should not apply. People v. Smith: -Mother and father are beating their child and accidentally knock her into a closet door and she dies. -Example of a felony (child abuse) being included in the homicide. Therefore the felony was merged with the homicide, and felony-murder 2 cannot be applied. King v. Commonwealth: -Guy flying a plane in order to traffic drugs runs into mountain when trying to fly low in order to avoid fog. His cohorts die in the process. -Example of a homicide that is not caused in the furtherance of a felony, because flying low to avoid fog is not part of drug trafficking (example of result oriented jurisprudence). State v. Bonner: -Four people are robbing a restaurant, and an off-duty police officer shoots two kills them. The two others are charged with felony murder. -Example of the adversary rule. 13 Homicide Review Intentional Unintentional Murder 1 • Depends on statute • Premeditated Murder 1 • Statute must make special provisions: deem certain felonies as predicate felonies Murder 2 • Expressed malice can be intentional but not premeditated Murder 2 • Committing a felony where a death occurs • Common law rule – implied malice Manslaughter • Must be an intentional mens rea • D may be acting out of heat of passion or due to adequate response • Under these facts D is still responsible, but charge is lessoned Involuntary Manslaughter • Gross Negligence General Defenses -Defendant admits they had the requisite actus rea and mens rea. However, they are offering another element that should excuse them. 1. Self-Defense: -There must be a necessity for action. -Test for Self-Defense: -Defendant must have an objectively reasonable belief that: (objective + subjective) 1. There is an unlawful and imminent threat of serious or deadly force; and -What is Imminent: 1. Majority Rule: -There must be a choice between killing and being killed at that moment. Objectively reasonable. -Speculation about what may happen in the future does not constitute an imminent threat. 2. Dissent in Norman: 14 -We simply have to determine if the defendant had a subjectively reasonable belief that they were in danger. In some jurisdictions, With a battered spouse, they have a reasonable belief because they are always in danger. -The objective test for the reasonability of the belief takes into consideration the defendant’s situation and prior experiences. 2. The type of response used was necessary for defense. -Aggressors: -Aggressors cannot claim self-defense because they could have avoided the situation creating the threat of harm. -Exception: if the aggressor withdraws in good faith and has informed the other party by words or acts. -At this point it seems like a new situation. -Battered Wife Syndrome: (One View of Imminence) -As a result of a continuous reign of terror; therefore, this spouse may kill someone who is at the moment passive because their perception is that there is a constant threat, and at any moment the deadly attack may come. -Whenever the opportunity arises that she may defend herself she may do so. -Words alone cannot constitute enough of a threat. United States v. Peterson: -Defendant sees guys trying to steal wind-shield wipers off of his car and threatens decedent with gun. -Example of defendant being construed as initial aggressor and thus unable to claim self-defense. People v. Goetz: -Guy on the subway who shoots 4 children when they threateningly ask him for money. -Example of a situation that did not constitute an objectively reasonable belief of a threat of deadly force. State v. Norman: (Know both views) 15 -Decedent had beaten defendant for 20 years and she had battered wife syndrome. Defendant kills husband while he is sleeping. -Example of majority view: this does not constitute imminent because the threat was speculative. -Dissenting View takes into account specifics of “battered wife syndrome.” 2. Defense of Others: -Public Policy: We don’t want people being afraid to get involved. -Rule of Defense of Others: 1. Majority: a reasonable person in the actor’s position would believe his intervention to be necessary for the protection of the third party; and 2. Minority: you only have the right to defend others if, the third person would be justified in using such force to protect themselves. (This would be the case of unknowingly defending the person that was the aggressor to begin with) -Unnecessary Force is not allowed. -One must take into account the position of each person. Commonwealth v. Martin: -A prison inmate attacks a prison guard whom he believed to be attacking another inmate. -Example of how a reasonable person would take into account a prison guard’s right to use force to control inmates. 3. Defense of Property/Habitation: -Common Rule: (Majority Rule) -If the defendant reasonably believes that the invader will commit a felony within the home, then the person may use any type of force necessary to repeal the person. -Since the concept of felony has expanded, it must be a felony that is an atrocious crime committed by force (California rule). -Public Policy: -This type of action should not be condoned. -Just because a defendant injures someone who should have been hurt does not meant that that will always happen. Therefore we should not allow the use of spring guns. 16 -Second View: -Some jurisdictions allow any force to be used to defend one’s home regardless of any danger, or consideration of danger, of those inside. -Third View: -Deadly force may be used in defense of habitation only when personal safety is threatened within the house. People v. Ceballos: -Defendant has placed a spring gun in his garage to prevent kids from stealing his stuff. -Example of any type of force being used to repel a possibly felony; however the felony was not an “atrocious” crime committed by force (Burglary). 4. Law Enforcement Defenses: -In determine whether an officer may use deadly force to stop a suspect: 1. A State statute will be looked at to see if it allows such conduct and when; and 2. The court will determine if the statute is constitutional. -General Circumstances required for Deadly Force: 1) The suspect threatens the officer OR there is probable cause to believe the suspect has committed a crime which caused serious physical harm, and; -In determining probable cause, the officer must gauge what type of crime was probably committed and then determine whether that crime was inherently dangerous to human life. -Must differentiate between violent crimes and non-violent crimes. 2) The use of deadly force is necessary to prevent the escape of the suspect, and; 3) The officer must warn the suspect if it is feasible to do so. -Sometimes it is no feasible. Tennessee v. Garner: -Cop shoots and kills a visibly unarmed 14 year old boy who had just committed a burglary. -The boy never threatened the officer, and burglary is not inherently dangerous to human life, so element 1 of the rule had not been met. 5. Necessity: -Rule for Necessity: 17 1. Defendant is faced with a clear and imminent danger, not one which is speculative or debatable; and -Possible (speculative) future harm does not excuse current violation of law. -Model Penal Code does not require that the danger be imminent, but rather that the perceived danger be greater than the danger of committing the illegal act (a jury question) (p.531). 2. Defendant reasonably expected that their action would be effective as the direct cause of abating the danger; and 3. There are no legal alternatives for abatement; and 4. The harm of what the D is doing has to be less than the harm then what D is trying to fix: “Choice of Evils” Commonwealth v. Leno: -The partners who run a needle exchange program which violates a state statute. -Example of a danger which is not imminent (because people aren’t dying from aids at that moment) and therefore there is no necessity defense. 6. Duress: -Rule for Duress: 1. There is an immediate threat of death or serious bodily injury; and -A veiled threat of unspecified harm will not count. 2. Defendant has a well-grounded fear that the threat will be carried out; and 3. Defendant has no reasonable opportunity to escape the threatened harm. -The opportunity to escape must be reasonable. Escaping while your family is killed cannot be reasonable. This is a subjective and objective test (objectively being a reasonable person in the defendant’s shoes). -Public Policy behind Duress: -People in these situations are being coerced, and thus have no blameworthy or criminally culpable state of mind. United States v. Contento-Pachon: -Defendant who is coerced into smuggling cocaine over the border in 129 balloons which he has swallowed. 18 -Example of a debatable situation where there was an immediate threat (threatening to kill family if he did not do something) and no reasonable chance of escape (if he didn’t follow through his family would be killed). 7. Voluntary Intoxication: -There are two views concerning what voluntary intoxication will do for a defendant: 1. Voluntary Intoxication can only mitigate a criminal murder; it will therefore only have bearing on charges that have degrees (i.e. Murder). -Many states have enacted legislation that forces a court to adopt this policy. -Any statute stating this view will be over-riding (use for test). -Public Policy: -We want defendants to be liable for their actions, and in these cases, they chose to become intoxicated. 2. If the crime, as defined by the legislature, requires a particular type of mens rea, and because of intoxication (voluntary or not) the defendant is unable to formulate that type of mens rea, then the defendant cannot be found guilty of the crime. -This is the more liberal approach some courts have adopted, absent any legislation. -Public Policy: -To allow intoxication to mitigate murder (the most serious offense) but have no effect on lesser offenses seems crazy to these courts. -Be able to state both views absent any statute. Commonwealth v. Graves: -Defendant takes some LSD with wine and then burglarizes a house. The tenant of the house ends up dying during the incident. -Example of how the court uses the second view and states that the defendant was so intoxicated he could not have had the requisite mens rea to be convicted of the crimes he was charged with. 9. Insanity: -Claim of Insanity: claim by criminal defendant that they are blameless by reason of mental illness. -The objectives used in determining a proper rule of insanity: 19 1. Reflect principle of law/values. 2. Comport with scientific understanding. 3. Phrased with scientific information comprehensible to a jury. 4. Preserve the ultimate authority of the trier of fact to determine the culpability of the defendant. -Objective 4 should not allow an expert witness to come in and say “This person did not have any control over what they were doing.” -4 Different Possible Tests (2 important ones*): 1. M’Naghten Test*: -The party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know, that he did not know that what he was doing was wrong. -This is a cognitive test (testing the knowledge of the defendant). -This is an all or nothing approach which doesn’t meet objective 2. -The use of expert witnesses to give moral and ethical judgments usurps jury power and does not meet objective 4. 2. Irresistible Impulse or Control Test: -Person is driven by an insane impulse, and is irresistibly driven to commit the crime. It is the product of a diseased mind which so subverts his will as to destroy his free agency by rendering him powerless to resist by reason of the duress of the disease. -This is a volitional test (testing whether the defendant acted voluntarily) -It is misleading because is tends to make people think the crime must have been committed impulsively which does not meet objective 3. -It is also another all or nothing test, failing objective 2. 3. The Durham or “Product” Test: -An accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect. -It is a circular argument, and the ambiguity of the word “product” does not help a jury determine guilt and therefore fails objective 3. -Overly simplistic. 4. Model Penal Code Test*: 20 -§ 4.01: A person is not responsible for criminal conduct if at the time of such conduct, as a result of mental disease or defect, he lacks substantial capacity either to: (1) appreciate the criminality (wrongfulness) of his conduct; or (2) to conform his conduct to the requirements of law. -This is a volitional and cognitive test. -It is not overly simplistic or scientific. -The test meets the 4th objective because it allows the jury to make the final call. -This test was gaining must renown before the attempted assassination of Regan. After the attempt: -3 States abolished the insanity defense all together. -Congress passed the Insanity Defense Reform Act: -Only applicable in federal courts. -Defendant has to have severe mental disease or defect and was unable to appreciate the nature and quality or the wrongfulness of his acts. -Cognitive test only. -Adds the words “severe mental disease.” State v. Johnson: -The court decides to abandon the M’Naghten test for the Model Penal Code. Inchoate Offenses 1. Attempted Murder – Mens Rea: -The Rule for Attempted Murder: 1. The defendant has an intent to commit the substantive crime, to kill; and -This is the mens rea element of the crime. -The aim or goal must be to commit the murder. -Knowledge of a high probability of danger is not enough to constitute intent. -One cannot “intend” an unintentional act. -One cannot intend to commit felony murder (or involuntary manslaughter) because there is not mens rea required for that unintentional action. 21 -One cannot intended something that cannot be intended. -Public Policy: -We require a more culpable state of mind, for a lesser attempt, because this person didn’t actually kill someone, therefore society has suffered less of a loss. 2. He does an act which constitutes a substantial step toward the commission of the crime. -This is the actus reus of the crime. Discussed Below. People v. Gentry: -Defendant had poured gasoline on his wife during an argument and she gets lit on fire after stepping close to the oven. -Example of a lack of intent. He may have known it could have caused serious bodily harm, but he did not intend to kill, which is required. Bruce v. State: -Defendant enters a store with others and attempts to rob someone. -While threatening owner with a gun, the owner rams into him and the gun fires. -Example of how attempted felony murder cannot occur because it is not an intentional act; one cannot intend something that cannot be intended. There can be no such thing as attempted Felony Murder.(multiple choice question) **** Even I volitionally attempt to kill somnolence while I am committing a felony, I can still not be charged with attempted Felony Murder 2. Actus Reus of Attempt: -We do not criminalize thoughts in the absence of conduct. -How to determine what kind of act constitutes an attempt: 1. Dangerous Proximity Test (small minority view): -An act amounts to an attempt when it is so near to the result that the danger of success is very great. -If the crime would have occurred, but for some intervening act, then this test will probably be met. -There must be an opportunity to commit the crime, or else all acts will be considered preparation, not perpetration. 22 2. Pre-1989 Tennessee Attempt Statute (don’t need to know this): -An attempt occurs when: 1. Defendant acts with intent to commit the crime; and 2. He conducts an overt act toward the commission of the crime; and -Example of “overt” act occurs in Dupuy v. State: -Here the guy is preparing to commit an illegal abortion (rents hotel, lays out tools) but never touches her. These acts were considered preparatory. 3. He fails to complete the crime. -If the crime is completed, there cannot be an attempt. 3. Modern Penal Code and Post-1989 Tennessee Statute (Large Majority View): (1) A defendant will have committed an attempt if they do any of the following: a. Defendant intentionally engages in action or causes a result that would constitute an offense if the circumstances surrounding the conduct were as the defendant believed them to be; OR -Ex: someone tries to pick a pocket that is empty. b. Defendant acts with intent to cause a result that is an element of the offense, and believes the conduct will cause the result without further conduct on the person’s part; there is an intervening cause OR -Ex: defendant lights a fire which is put out by rain. c. Defendant acts with intent to cause a result which would constitute a substantial step in committing the offense. (I) Conduct may not constitute a substantial step unless the person’s entire court of action is corroborative of the intent to commit the offense. Ex: lighting a match in a house, but in the fireplace. (2) The following two examples may be sufficient as evidence of a substantial act which a jury will be allowed to deliberate on: a. Possession of material specially designed to be used for the crime; the defendant has no other reason to have the material. b. Possession at, or near, the scene of the crime of material to be used for the crime; the defendant has no other reason to have the material. 23 -Difference between these two is that (a) requires one to have specifically made material, while (b) requires that one just have any material near the scene of the crime. -Public Policy: -This does not require the police to wait for a dangerous act to occur which is dangerous in of itself. People v. Rizzo: -Defendant drives around with others looking for a carrier to rob. Before they can find them, they are shadowed, and then caught by the police. -Example of acts that are considered preparation because there was no opportunity to commit the crime. State v. Reeves: -Two 12 year old girls want to poison their teacher’s coffee, and are seen giggling next to her desk, but the poison is still in their purse. -This constituted a substantial step according to Model Penal code 2(b). The police did not have to wait till they actually poisoned the coffee. 3. Abandonment: -Model Penal Code 5.01(4): (Modern Trend): -When the actor’s conduct would otherwise constitute an attempt…it is an affirmative defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose. 2 View of Abandonment: 1. D completes the attempt, then they can still abandon and they will not be liable -the MPC View 2. Many Jurisdictions say that once the attempt is complete there can not be abandonment -Traditional View: -Abandonment does not constitute a defense. Commonwealth v. McCloskey: -The inmate who attempts to escape but then abandons it. 24 -The court obviously acknowledges the use of the Model Penal code. 4. Assault: -Different Views: -Traditional Rule: The defendant attempts to cause or purposely, knowingly, or recklessly causes bodily injury to another. -What constitutes “attempt?” -Use the Dangerous Proximity test. -The defendant can’t be too far away. -Model Penal Code: 5.01(4) 1. The defendant attempts to cause a battery, an unlawful application of force to another or 2. MPC offers as a second possibility to create fear in another of imminent serious bodily injury. State v. Boutin: -Defendant is in a fight with another when he gets a bottle and starts walking towards the other person menacingly. -Example of the regular rule, in either circumstance the view would not consider this an attempt. However the model penal code would have. Liability for the Conduct of Another 1. Solicitation: -Rule: an attempt to conspire. -This is sort of like a double inchoate crime. An attempt at an attempt. -Reasoning for this offense: -Utilitarian: -The solicitor is not only engaging in a crime themselves, but they are attempting to drag someone else in with them. -If not for the solicitation, there would be no end crime. -Retributive: 25 -The solicitor may be even more culpable because they keep themselves behind the scenes, sometimes hiding behind the actual actor. -If someone succeeds in conspiring with someone, there can be no charge for solicitation, because their attempt succeeded. Solicitation mergers with conspiracy but not the substantive crime There can not be a successful charge of both Solicitation and Conspiracy State v. Mann: -Gives definition of Solicitation. 2. Conspiracy: -This is a mutual agreement or understanding, express or implicit, between two or more persons to commit a criminal act or to accomplish a legal act by unlawful means. -Elements of Conspiracy: 1. Intent to combine with others; and 2. Intent to accomplish the crime itself; and 3. The creation of an agreement to act. -This is the actus reus of the crime, the creation of an agreement. -Some jurisdictions require an overt act to constitute an agreement; this would be anything more than an oral agreement. -Evidence of Conspiracy: -We will usually have to look to circumstantial evidence to determine that a conspiracy has taken place. -Factors the court will look at: 1. Association with the alleged conspirators; 2. Knowledge of the commission of the crime; 3. Presence at the scene of the crime; 4. Participation in the object of the conspiracy. -Pinkerton Liability: -Once a conspiracy has been proven, each conspirator will be held liable for the acts of all other conspirators as long as the agreement continues. -Exceptions: 1. If the substantive offense committed by the conspirator is not in the furtherance of the conspiracy; or 26 2. If the substantive offense committed does not fall within the scope of the unlawful act; or 3. If the substantive offense committed was not foreseeable as a necessary or natural consequence of the unlawful agreement. -There is conspiracy does not merge with the substantive crime -Once the agreement has been made to conspire . -You can conspire to commit a robbery, succeed in committing a robbery, and be charge with conspiracy and robbery at the same time. -The Pattern: Solicitation Conspiracy Attempt Substantive Crime People v. Carter: -Definition of Conspiracy Pinkerton v. United States: -Two brothers conspire to commit a crime. One commits the crime while the other is in jail. -The brother in jail is liable for these acts because of Pinkerton liability. Commonwealth v. Azim: -The driver of a car waits while two passengers assault and rob a man near the street; he then drives off when they get back in. -The court was not able to find any direct evidence, but the circumstantial evidence indicated that there was an implied conspiracy here. 3. Accomplice Liability: -This does not involve Pinkerton Liability because there is no agreement. -Pinkerton liability is broader, because it involves inactivity. -It is more difficult to prove, because one also must find the existence of an agreement. -With accomplice liability, we will have action on the part of the defendant. -If a defendant is found to be an accomplice of a crime, he will be found guilty of the crime. -One is an accomplice if they are guilty of Aiding and Abetting: The defendant associates themselves with the venture in some way. He must participate in it in some way. He must seek, by his action, to make it succeed. 27 -The defendant must have some intent to help to commit the crime. -When defendant will be held liable for the commission of a second unintended crime: -One View: Two Step Test 1. The actor intends to promote the primary crime; and 2. The commission of the secondary crime was a foreseeable consequence of the actor’s participation in the primary crime. -Black Letter law of Accomplice Liability: -The defendant is an accomplice in the commission of a felony if: 1. They actually commit the offense; or 2. Does some act which forms part of the offense; or 3. He assists in the actual commission of the offense or of any act which forms part of the offense; or 4. He directly or indirectly counsels or procures any person to commit the offense or to do any act forming a part of the crime. -Offering moral encouragement could suffice. -Mere knowledge of the crime and presence at the scene will not suffice. -There must be some sort of act. State v. Hoselton: -Defendant was on a barge fishing with friends when his friends broke in and stole some stuff. Defendant ran off when he saw what they were doing and did not help. -He was not an accomplice because he had no intent to help assist in the crime. State v. Linscott: -Defendant meets with his friend to get a shot-gun to rob a cocaine dealer. The friend shoots the cocaine dealer and kills him, but defendant never had intent to kill. -Example of the Two Step test for unintended crimes. The defendant intended to commit a robbery, and a murder is a foreseeable consequence of robbery. State v. Vaillancourt: -Defendant was standing next to his friend and watching as his friend attempted to burglarize a house. There was no other evidence. -This analyzes the 4th option of the Black Letter law of accomplice liability, and there must be some act, therefore defendant was not an accomplice. Additional Notes -“Lookout” does qualify as an aider and abeter and has accomplice liability 28 Larceny -Common Law Larceny: 1. Intent to steal; and 2. Trespassory taking and carrying away of personal property of another. -Robbery: 1. Larceny; and 2. The use of force (violence or intimidation). -Statutory Larceny Elements: (1) Defendant takes possession; (2) Of Personal Property; (3) Owned or possessed by another; (4) By means of trespass; and -To determine if there was trespass: 1. Determine if the plaintiff consented to the defendant’s presence; or 2. Determine if the plaintiff consented to the defendant’s conduct while on his property. -It is probable that no plaintiff will consent to someone being on their property and attempting to steal things. (5) With intent to steal the property; and -What constitute intent: -Intent to deprive the owner permanently of possession of the property. -Exceptions: -even if there is not an intent to deprive permanently there can still be larceny, if we find these exceptions 1. When the defendant intends to “sell” the property back; or -Rationale: 1. The return of the item is conditional upon the acceptance of the sale. 2. An assertion to sell is an assertion of ownership. 3. There is a substantial risk of permanent loss. -Rationale: If the condition is not met, the person has a large incentive to steal it. 29 2. When the defendant intends to claim a reward for “finding” the property; or -Rationale: same as above except for #2. 3. When the defendant intends to return the property for a “refund.” -Rationale: same as above. (6) Carries the property away. -Moving the property far enough away will be sufficient to satisfy this. Lee v. State: -Defines Larceny and Robbery. People v. Davis: -The defendant takes a shirt of a rack and tries to return it for a refund. -The court rules that he had intent to steal because trying to return something for a refund was an affirmative exception to the permanent deprivation of the good. He also trespassed because the store did not consent to people coming into the store to steal stuff. Theft by False Pretenses -Elements of Theft by False Pretense: 1. Defendant makes a false pretense or representation; and 2. The representation was made with intent to defraud the owner of his property; and 3. The owner was in fact defrauded in that he parted with his property in reliance upon the representation. -The false pretense or representation must have materially influenced the owner to part with his property -The false pretense need not be the sole inducing cause. People v. Wright: -Defendant has hit ATM card cancelled, but he continues to remove cash from a Safeway. -Even though the computer was required to verify the account, it was mistakenly sending a stand-in code, and Safe-Way’s policy was to take the buyer’s word that they had credit to make the purchase. 30 Owner knew there was false pretense or, Owner did not technically believe the representation and investigated or,