Criminal Law Outline (Fall 2004) Professor Goodman I) Enforcing the Presumption of Innocence 1) Guilty if there is no reasonable hypothesis of innocence. Owens v. State drunk guy found asleep in driveway with a can of Budweiser and two empty cans in the backseat. Held: Guilty because there is no reasonable hypothesis of innocence. 2) To prove guilt, you must show (beyond a reasonable doubt): (i) Actus Reus (ii) Mens Rea (iii) Causation (a) Is the D the actual and proximate cause? (iv) Attendant Circumstances--[for some crimes] (v) Result--[for some crimes] 3) BARD is qualitative NOT quantitative. I) THE ACTUS REUS A) ACT 1) Words sufficient B) Was it a voluntary act? 1) Voluntary if conscious and volitional Martin v. State D taken to highway and arrested for being drunk in public. Holding: D cannot be convicted since he did not appear on highway due to his own volition. 2) Habit is still voluntary 3) Possession is not voluntary if D not aware of possession (i.e. someone slipped something into his bag). C) Was the act a conditioned response? 1) MPC §2.01 states that act is voluntary if it was not involuntary i.e. the following: (i) A reflex, (ii) convulsion, (iii) bodily movement during unconsciousness or sleep, (iv) movement resulting from hypnotic suggestion, (v) Or a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual; is NOT a voluntary act. State v. Utter Conditioned (automatic) response from WWII kills son Rule: A spasm is not an act. Actus Reus requires a willed movement. Unconscious = no voluntary act D) Time Frame 1) By extending the time frame, an act that is involuntary may be viewed to be voluntary. (i) Martin = broad timeframe = voluntary while Utter = narrow = involuntary (prior drinking not considered). E) If there was no act, was there an omission?– “Negative Acts” = failure to act 1) If there was an omission, was there a DUTY? Duty to act exists if: (i) Created by statute (ii) Contractual duty (babysitter) (iii) Voluntary assumption (starting CPR) (iv) Creation of the peril (a) HYPO: woman stabbed the husband, left him, then he died. She created the risk, thus there is a duty. (v) a special status relationship (parent/child; employer/employee) exists: (a) Was there such a relationship? Beardsley Male friend fails to stop female friend from taking morphine and killing herself after drinking. Issue: Did D owe Burns a legal duty (as opposed to a moral duty) of care at the time of her death? NO, because there was no relationship of protector. 2) If there was a duty, did it expire? (i) Barber doctor take patient off of life support. When providing care is ineffective, the duty expired. (ii) HYPO: When you start saving someone’s life, you have established a DUTY. But once the paramedics arrive, your DUTY expires. II) THE MENS REA: The Guilty Mind (BROADLY: ANY morally blameworthy state of mind; NARROW: INTENTIONAL state of mind). A) Common Law Terminology 1) Intentionally: acting with the purpose to cause a specific harmful result; (MPC: in-between Purpose and Knowledge) (i) INTENT VS. KNOWLEDGE (a) Intent: Conscious objective or purpose to accomplish result (b) Knowledge (MPC): Knows that such a result is practically certain to be caused. (i) People v. Conley D hits victim in the face with a wine bottle and causes permanent damage. Issue: Did D have intent to cause the permanent disability? Is this intent necessary to find guilt? Held: Aggravated battery = intentionally or knowingly causes GBH. Here, D did have the conscious objective of causing the permanent harm, AND knew that result was practically certain. B/C of the absence of warning, the force of the blow, and the use of the bottle, we can infer that he did have intent. (ii) General intent: Intent to commit the act (iii) Specific intent: Intent to commit crime or cause a specific result. 2) Maliciously: D realizes the risks and engages in conduct anyway; not “wicked” or “ill will”. (MPC: recklessly) 3) Negligently: acting unlike TARP would exercise under the circumstances. B) MPC States of mind 1) Purposely: D acts with the goal or aim to achieve a particular result. (i) If there are attendant circumstances, you believe/are aware they exist. (a) Ex. Burglary: entering a building with intent to commit the crime therein. So he must enter the house with a specific purpose in mind. (ii) Usually purpose is left for the worst crimes: treason, murder. (iii) CL = with specific intent to… 2) Knowingly: D is virtually or practically certain that her conduct will lead to a particular result. (i) Ex. The D puts bomb on a plane with the goal to destroy cargo aboard it, but is virtually certain the plane’s passengers will be killed as well. With regard to the death of the passengers, the defendant has acted knowingly. (ii) Ex. Willful Blindness Doctrine: if a defendant strongly suspects the fact but consciously avoids learning the truth so he will not be certain, the courts will nonetheless find that the defendant acted knowingly. It elevates “reckless thought” into knowledge. (a) Must be able to say that D almost actually knew. State v. Nations D does not know age of 16 year old stripper. Holding: D did not strongly suspect that the girl was under 17, so it’s closer to reckless. D didn’t almost know 3) Recklessly: D consciously disregards a substantial and unjustifiable risk that her act will harm another person. (i) Subjective Standard: requires the D personally realize risk and disregard it. (a) Ex. The defendant drives 60 mph past a school during school hours. Although the defendant does not intent to hit anyone, he realized the risk that he may do so and continues speeding anyway. (ii) Must be a gross deviation from the standard conduct that a law-abiding person would observe. (iii) Reckless v. Knowingly: If a D is so aware of a risk that she is virtually certain it will occur, then go with knowingly. However, if the D is aware of a risk, but not as certain it will occur, the D may be acting recklessly. Knowing is one degree higher than reckless. 4) Negligently: D unconscious and unaware of a risk and takes it where an ordinary person would not have. (i) Ex. The D is unaware that his child is suffering from a life-threatening illness and fails to seek medical treatment. An ordinary person would have been aware of the risk, and sought care for child. The D has acted negligently. (ii) Negligence is an objective standard. The focus is not on the D’s state of mind, but what risks the D should have known he was taking. By acting negligently, the D is acting below the ordinary person standard of care 5) What if there is no mental state specified? (i) Default to recklessness (ii) Negligence is NEVER presumed unless specified. (a) NOTE: If you prove a higher mental state, you have proved a lower. 6) Transferred Intent: If the D has the intent to commit a crime, it does not matter that he commits the crime upon someone other than the intended victim; the intent transfers. 7) Prescribed Culpability Requirement applies to all material elements of the offense unless the legislative purpose is to the contrary. (i) I.E. If a law says knowingly, then that mental state applies to all elements of the crime. (ii) EXCEPTION: If contrary to legislative purpose United States v. Morris D launches computer worm that gets out of hand and causes a great deal of damage. Issue: Does the intent of the rule apply to the access of the computers or to the resulting damage as well? Holding: The intent applies to the accessing only and not the resulting damage. Reasoning: The legislative intent was to prevent access, not the damage. C) Disproving Mental States 1) Mistake of Fact (i) RULE: Mistake of fact precludes criminal liability if it negates the necessary mental state. (ii) Only if D is mistaken as to a material factWhat a D needs to know to be guilty??? If he does not know, he cannot be guilty. (a) Here, D needs to know that the goods he took belonged to someone. People v. Navarro D took wooden beams and thought they were abandoned. Holding: D’s good faith belief does not have to be reasonable; however, D must have a good faith belief. Reasoning: Where law requires a specific criminal intent, you must show that D made an honest mistake. To prove theft, D must have a specific intent to steal, not just a general intent to take the beams. (i) If negligence is the required mental state, an honest and reasonable mistake only will negate intent. (ii) Some courts will say that you can’t use mistake of fact with general intent crimes, but it’s hard to distinguish the 2. 2) Mistake of Law (i) General RULE: Mistake of law is not a defense. People should know the law since it is based on moral conduct. (a) EXCEPTIONS: (i) When D has been officially misled as to the law 1. Reliance on invalid statute 2. Reliance on judicial decision 3. Reliance on administrative order (ii) D does not have the necessary mens rea for the crime b/c of her ignorance or mistake as to legal requirements. 1. If MR says that D needs to know what he is doing is a crime. (iii) D has not received requisite knowledge of the law (usually to omissions i.e. failure to file paperwork) LIMITED TO: 1. D’s conduct is wholly passive 2. There was no actual notice of the law AND 3. The violation involves a regulatory offense. (b) People v. MarreroFederal prison guard had handgun at club. He thought he could because he was a peace officer Issue: Does D’s misunderstanding or misreading of the statute excuse him from criminal liability? NO Rule: Not exception 1, not 2 (no MR required for crime); not 3 (was not passive). III) ATTENDANT CIRCUMSTANCES A) A separate element of a crime might require that certain circumstances or conditions existed at the time of the D’s acts. Without proof of those circumstances, the D is not guilty of that crime. 1) Example: A statute provides: “It is an offense to rob a federally insured financial institution.” Unless the victim bank is federally insured, defendant is not guilty of the crime. 2) Example: with “driving drunk,” you can’t just have drunk, you have to have driving drunk in order to make it illegal. IV) CAUSATION—Only matter when you have a result crime. A) Actual Cause (Cause-in-fact) 1) “But-For” Test: Would result have happened BUT FOR D’s actions and would it have happened WHEN IT DID? 2) Acceleration rule: If your actions hasten or accelerate the injury, this will be considered the “but for” cause of the injury Oxendine v. State One guardian beats 6 year old son, inflicts mortal wound. 2nd guardian beats him again. Rule: If D’s beating accelerated Jeffrey’s death, causation exists. Holding: Evidence does not establish that D beating accelerated Jeffrey’s death; causation cannot be proven. (i) Contribution is insufficient to establish “but for” causation. (ii) Aggravation is insufficient to establish “but for” causation. 3) Concurrent Causes (MINORITY): If there is more than one actor and both actions would have caused death, then both are the ‘cause in fact’ even though but-for one’s actions, the result would still have occurred. (i) EXAMPLE: Defendant A puts poison in the victim’s food. While the victim is swallowing the food, defendant B shoots him. Both defendant’s are “causes in fact” of the victim’s death even though death would have occurred even without either one of the defendant’s conduct. 4) Substantial factor TEST (RARELY USED): Only used when 2 people act simultaneously and independently and either action would have killed the person. By using the substantial factor test, all you have to ask is whether each actor is a substantial factor in contributing to the death of the individual. B) Proximate Cause: 1) Among all the causes in fact, we see who should be held accountable. No hard, fast rule, consider… 2) Was the result foreseeable? YES—then proximate cause exists 3) If there is an intervening act: (i) Acts of God or nature (ii) Acts of a third party, that accelerate or aggravate (a) (robber shoots person, ambulance doesn’t come quick because driver hates victim, robber still guilty) (iii) Acts or omission of the victim (a) (victim fleeing attacker onto highway, gets ran over) 4) Should the intervening act excuse D? CONSIDER: (i) Responsive or Coincidental? (a) If responsive, proximate cause will likely exists. (b) In coincidental, then was it foreseeable? If unforeseeable, may break chain of causation. (ii) Foreseeable or unforeseeable? (a) If foreseeable, then proximate cause exists. (b) If unforeseeable, then was it abnormal? If abnormal, chain of causation is broken. (i) Kibbe v. Henderson 2 rob and abandon man on road; college student runs him over. Issue: Were D’s actions the proximate cause of Stafford’s death? NO Rule: This was not foreseeable. Intervening act was independent, coincidental and unforeseeable. Holding: Evidence did not show BARD that D’s actions were the proximate cause of Stafford’s death. (iii) Abnormal? (a) If unforeseeable and abnormal, then proximate cause DOES NOT exist. (iv) Apparent Safety Doctrine: when a person reaches a position of safety, the original wrongdoer is no longer responsible for the ensuing harm. (Woman spent night in cold to avoid abusive husband). 5) Intervening acts can break the chain of causation where (remember, there’s not hard rule, so consider): (i) the prohibited result is beyond the scope of any fair assessment of the danger created by the defendant’s conduct, (ii) it would be unjust, based on fairness and policy considerations, to hold the D criminally responsible for the result. V) RESULT A) If there is a result crime, such as murder, the harmful result is obvious. B) If there is a conduct crime, such as DUI, no bad result is necessary, but there is still “harm.” C) If the material elements of crime require a result, then you have a result to be guilty. VI) BARD: PROSECUTION MUST PROVE ALL ELEMENTS BARD. VII) HOMICIDE A) Definition: the unlawful killing (AR + R [death]) of another human being (AC) with malice aforethought (MR depends). B) AR--killing 1) When brain ceases to function. MIN says the moment that the heart stops 2) Year and a day rule: Under CL, death must occur within 1 year & a day of D’s act to constitute killing. Today most jurisdiction have abandoned this. C) Mens Rea: Depends on the grade of homicide. Was there malice (most popular)? 1) Malice (i) Malice: (a) Intent to cause death or GBH (b) Gross recklessness to the risk of death or GBH. (i) Shooting gun into a crowd. (c) OR felony murder (see below) (ii) WWC or AMH can also define malice (all 3 below are the same): (a) Willful and wanton conduct (b) Abandoned and malignant heart (c) When the D has a base anti-social motive and a wanton disregard for the value of human life. 2) Common Law Approach to Degrees of Murder (i) First Degree Murder: willful, deliberate, premeditated, with MALICE. (a) What constitutes premeditation? CONSIDER: (i) Want of provocation on the part of the deceased. (ii) The conduct and statements of D before and after the killing. (iii) Threats and declarations of D before and during the course of the action (iv) Ill-will or previous difficulty between parties. (v) The dealing of lethal blows after deceased has fallen and rendered helpless. (vi) Evidence that the killing was done in a brutal manner. (vii) Nature and number of the victim’s wounds. (b) MAJORITY: there must be more of a “preconceived design,” premeditation can’t be happening at the same moment of the murder. (i) State v. Forrest: Son kills father to end suffering. There is premeditation b/c he went to the hospital with a gun to ‘end suffering.’ (ii) Midgett v. State: Father beats his son and the son dies. He did not premeditate to kill, just to beat the child. (c) State v. Shrader (MIN): Premeditation can happen in a “twinkle of an eye.” (d) Look to statute to determine what “premeditation” means. (e) Lying in wait and poison are both always 1st degree. (ii) Second Degree Murder – everything else (look at your particular statute) (a) NOT premeditated, but still with MALICE. (b) All killings committed with malice and without premeditation constitute murder. “Malice” is the component that separates murder from manslaughter. (c) The “Catch All” Category: for intentional killings that have insufficient evidence of the premeditation to be 1st degree, and insufficient provocation to be considered voluntary manslaughter. (i) Example: “A killing with malice aforethought, that is not willful, deliberate, and premeditated.” (ii) Remember: Gross Recklessness v. Regular Recklessness. 1. Act with gross disregard for human life? 2. Or just knew of the risk to human life? (iii) MPC MURDER: (a) Murder MR: Purposely, knowingly, or grossly reckless with regard to human life. (b) Manslaughter MR: recklessly or under EED. (iv) Voluntary Manslaughter – Intentional killing with no malice. (a) Definition: (i) an intentional killing, (ii) done in a sudden heat of passion, (iii) caused by adequate provocation, (iv) before there is a reasonable opportunity to cool off (b) Was there Legally Adequate Provocation (OBJECTIVE)? (i) Common Law has found these situations to constitute Legally Adequate Provocation: 1. Discovering wife committing adultery 2. Mutual Combat 3. Assault 4. Injury to close relative 5. Resisting unlawful arrest (ii) Note: Words alone are insufficient, unless they are accompanied by conduct indicating a present intention and ability to harm. Girouard v. State husband stabs wife 19 times because she ridiculed him Issue: Was Joyce’s words sufficient provocation in order to drop D’s sentence to manslaughter? Holding: Joyce’s words alone are not sufficient provocation to justify manslaughter. (iii) HYPO: pg. 262 #5: If H does not see them having sex, it’s still murder under CL. (iv) HYPO: pg. 264 #7: B runs over A’s daughter while driving recklessly, but he kills bystander. Still murder b/c he killed someone else. (c) Was killing in an actual heat of passion (SUBJECTIVE)? (i) Look at the facts! Was he sweating, was he screaming, etc. (Ex. Catch wife in bed, you laugh = no.) (ii) Objective Standard: most jurisdictions use the objective standard to look at the situation from a reasonable person’s perspective to decide if HOPE is sufficient. (d) Before there is a reasonable opportunity to cool off? (i) Was killing in a SUDDEN heat of passion? (ii) Killing must be before there is “time to cool.” (iii) Enough time for TARP to cool off? If so, tough luck. (e) Rule: There must be a causal connection between provocation, passion, and fatal act. (i) Who did the provoking? (ii) Did provoking cause passion? (iii) Was passion reason for killing? (v) MPC Approach – when is murder reduced to manslaughter? (a) Ask: Was this person under Extreme Emotional Distress? (i) SUBJECTIVE Rule: D must actually be suffering from EED at the time of the killing. (b) Ask: Is there reasonable explanation or excuse for his EED (OBJECTIVE RULE)? (i) Rule: There must be a reasonable explanation or excuse for the EED, from the viewpoint of someone in the actor’s circumstances as he believes them to be. 1. Look at this through the eyes of the D; put yourself in HIS shoes, and THEN ask how TARP would act. (ii) People v. Casassa: After dating Casassa, the victim told him that she was not interested. He obsessed about her, stalked her, and killed her. His defense was that he was acting under EED caused by her rejection. Held: You take the D’s circumstances, and then put a reasonable person in that situation. Here, there was not a reasonable explanation or excuse for the D’s EED. (c) Notes on MPC Approach vs. Common Law (i) No specific act of provocation needed. (like the CL list) (ii) More subjective. (iii) No cooling time limitation. (iv) Words alone could be sufficient. (v) Basically: easier to prove HOP with MPC approach (vi) Unintentional Killings (a) Involuntary Manslaughter (i) Definition: Unintentional homicides committed without due caution and circumspection. Situations in which a D acts in gross deviation from the standard of care that TARP would exercise in the same situation. (ii) MR: Gross Negligence/Recklessness: (iii) Gross negligence = unconscious disregard of substantial and unjustifiable risk that D created and should have been aware of. When TARP would not pose the same risk to human life! Regular negligence rises to gross negligence by balancing these three questions: 1. Foreseeability of harm? 2. High magnitude of harm? 3. Is there any social utility in the conduct? (iv) Reckless = conscious disregard of unjustifiable and substantial risk (some jurisdiction will make this murder) 1. Gross recklessness = malice AND depends on the magnitude of the risk D took. 2. Model Penal Code a. Establishes a reckless “unjustifiable” risk as enough to establish murder (i.e. gross recklessness) (b) EXAMPLE (IM): Unjustified Risk Taking (Berry v. Superior Court, pit bull case). (i) Gross negligence = substantial and unjustifiable risk to human life that D should be aware of and TARP would not pose. 1. Weigh magnitude of risk VS. social utility of conduct (see above) (c) EXAMPLE (IM): Criminal Negligence (State v. Hernandez: drunk driving/bumpers) (i) A person acts negligently (grossly) when he unconsciously creates a substantial and unjustifiable risk of which he ought to be aware, and that TARP would avoid. (ii) Gross negligence Elements: 1. Gross deviation from TARP standard of care. 2. Actual present knowledge of the present facts which make an act dangerous. (d) EXAMPLE (IM): Ordinary Negligence: (i) Criminal liability (State v. Williams: killed baby with tooth ache by not taking her to doctor.) 1. Ordinary negligence was enough for involuntary manslaughter. VIII) FELONY MURDER A) Generally: gives prosecutors a short-cut to prove murder. Must prove is that D caused the death during the commission of and in furtherance of a felony. B) Rule: one is guilty of murder if a death results from conduct during the commission or attempted commission of any felony. C) Elements: 1) Defendant committed a felony. 2) During the course of the felony, the D or an accomplice caused a death. D) Must be “during the course:” People v. Fuller Ds steal tires, run an intersection, and hit another car. If there was some other occurrence between the robbery and them running away, it would not be during the commission. 1) Imposes Strict Liability for deaths caused by the commission of an enumerated felony, which includes burglary, even when the death is accidental. (i) Enumerated = 1st Degree Felony Murder (ii) Non-enumerated = 2nd Degree Felony Murder E) Modern limitation to F/M doctrine 1) “Inherently dangerous” limitation: only an underlying felony that is inherently dangerous to human life will trigger the felony murder doctrine. This protects D’s from the most “harmless” felonies. (i) How to determine: (a) MAJ-Dangerous in the abstract? A felony that can frequently be committed w/out creating a risk to human life is not dangerous. (i) People v. Burroughs: Healer is not guilty of F/M b/c healing people is not inherently dangerous in the abstract. (b) MIN-Dangerous as committed? Some courts will examine the circumstances in which a felony was committed to determine whether it was “inherently dangerous.” More likely to be convicted if they use this approach, more likely that your act will be inherently dangerous! 2) Independent Felony Limitation (merger doctrine): elements of the felony can’t be elements of the homicide. If the underlying felony is merely a step towards causing death, it merges with the resulting homicide. Blocks some of the most “dangerous” felonies from being used for felony-murder. (i) How to determine: there must be a purpose independent of killing or causing grave bodily harm to the victim. If it does not, it is an “integral part of” or “included in fact” in the homicide and the felony murder doesn’t apply. (a) People v. Smith: Smith and her boyfriend beat her two-year-old to death; Smith was charged with 2nd degree felony murder. Court held that child abuse which results in death is held to merge with the homicide so as to preclude a conviction of 2nd degree felony murder. (b) Example: assaulting a person “harder”. RATIONALE: Example: Assault will always preclude murder. So, using felony-murder rule, you can make every killing murder because there will likely be assault directly before it. 3) Limited to Killings “in furtherance” of the Felony (i) Rule: Death must be causally connected to the felony, not just a coincidence. (ii) RES GESTAE DOCTRINE: Felony-murder does not apply if there is no causal relationship between the death and the felony (i.e. customer at a store, unaware that it is being held up, dies of a heart attack). (a) Who did the killing? (i) Only deaths caused by the D or a co-felon qualify. (b) Who was killed? (i) Exception for co-felons 1. Example: two felons rob a bank. The police respond and shoot one of the felons. Co-felon not responsible for F/M 2. Example: Sophophone: aggravated burglary felon is in police car, but still charged with accomplice’s murder. This is not in furtherance of the felony AND is an exception for co-felons. (c) When did the killing occur? (i) Must be during the course. SPLIT as to when the felony ends, but generally: Starts when preparations commence and ends when Ds are in custody or in a position of “temporary safety. (d) Did it further the felony? (i) King v. Commonwealth: Two guys were flying an airplane containing 500 lbs of marijuana when they crashed and one of them died. The survivor could not be charged because the felony was completed. 1. But if they were fleeing from someone or something, then this would have been in furtherance of the felony. IX) RAPE A) Actus Reus: 1) Intercourse w/another person; 2) by force or threat of force; 3) against the will AND without consent 1) FORCE How much force is required? (i) Resistance: There must be some resistance for there to be force. (ii) RULE: If no resistance due to fear, the fear must be a reasonable one: Rusk v. State Victim gives car ride; D takes car keys, and asks her to come upstairs. Victim scared so goes inside, makes no attempt to leave, but asks “If I do what you want, will you not kill me?” Holding: P did not resist AND P’s fear (for not resisting) was unreasonable, so no force = no rape Reasoning: P argued that “the way he looked” and the “light choking” was the—this fear is not reasonable. (iii) NOTE: Most statutes don’t require resistance, but it ends up becoming evidence of force. (iv) Does saying NO (or not saying YES) imply force? Commonwealth v. Berkowitz P goes to friend’s dorm, his roommate asks her to stay. He eventually pushes her down on the bed, locks the door, and they have sex. She says ‘no,’ but it was seen as a moaning ‘no’ by D. Reasoning: There was no evidence of resistance or force. The ‘NO’ was not clear resistance. (a) NOTE: The relationship between 2 people should be considered. If stranger, this may have been force. 2) CONSENT: Permission or approval voluntarily given or implied by a competent person (i) Resistance: Does a lack of resistance imply consent? NO, but courts will consider this. (ii) Withdraw consent: If D continues after consent is withdrawn = FORCE. People v. John Z. P goes to bedroom at a party, begins having sex with D, but during sex wants to stop. (a) QUESTION to ask: Did D know that she wanted to stop? If YES, then there is force. If not, see MR… B) MENS REA: General intent crime: D has to have the intent to commit the act 1) MAJ: Mistake of fact negates intent—not guilty if D believed that female did consent. Belief must be: (i) In good faith (ii) Honest (iii) Reasonable 2) MIN: There is strict liability if act is proven (mistake of fact does not negate intent; general intent crime) Commonwealth v. Sherry D is at a party with 3 doctors. They all went to one doctor’s house, all 3 had sex with her. Ds said that they did not know that victim was not consenting. Held: Rape is a general intent crime; all you need is the act. 3) MPC approach: Defines rape by force used by D, not consent by victim—resistance is not an issue (i) Degree of force determines degree of rape. (ii) Most states have not adopted MPC, because it is racist (a) Doesn’t use sex-neutral terms (b) Let’s husbands rape wives (c) Requires prompt complaint and corroboration (d) Has mistake of age defense X) GENERAL DEFENSES: If prosecution can prove all elements BARD, consider potential defenses (but first consider failure of prrof): A) Consider the following in deciding on defenses: 1) Who is the D? 2) Who is being harmed? (i) Spouse—consider battered wife (ii) Criminal—consider law enforcement 3) Who is being protected? (i) Self (ii) Another person (iii) Property (iv) The general public 4) Is there a choice of evils or a lack of choice? (i) If there is a choice, did D choose the lesser evil? (ii) If there is no choice, is it because of an external factor or because of the D’s internal mental capacity? (iii) If there is not justification or excuse, the D should be punished. B) Justifications—focuses on conduct of the D: 1) Generally: (i) HYPO: Setting 2nd fire to stop 1st—such behavior is not only justified, but encouraged. (ii) To be justified, conduct must satisfy 2 requirements: (a) Must be necessary to protect or further the interest at stake AND (b) Conduct must only cause a proportional reaction/harm. (iii) RATIONALE: (a) Public benefit theory: Conduct not justified unless done in the public’s interest (i) Public officer was commanded to take a life (ii) Public officer took a life to advance public welfare (iii) Private party took a life in order to prevent the commission of a forcible, atrocious felony. (b) Moral forfeiture theory: Person waives his/her bundle of rights through conduct. (i) If you start to kill someone, you have forfeited your right to life. (c) Moral rights theory: Focuses on the rights of the victim; may have been privileged to defend themselves. (d) Superior interest (or lesser harm) theory: Balances social harm VS. harm to the victim 2) SELF-DEFENSE (i) RULE (before you consider self-defense) (a) Must have been a threat, actual or apparent, of the use of deadly force against defender (b) Threat must have been unlawful (c) Threat must have been immediate (i) Immediate: The defender must have believed that he was in imminent peril of death or GBH (d) D acted with a proportional response (i.e. Defender’s response is necessary to save himself) (e) All beliefs by defender must be honest and objectively reasonable (Goetz) in light of circumstances (i) Although the belief must be reasonable, it need not be correct (ii) If unreasonable, then doctrine of imperfect self-defense applies and you can be charged with a LESSER crime. (f) D was not the initial aggressor (i) Incites the fatal attack (ii) Encourages the fatal quarrel OR (iii) Otherwise promotes the necessity 1. NOTE: If you are an aggressor, you can re-gain right to SD if you withdraw and you let the attacker know. (ii) RULE: Self-defense is generally not available when done to protect property. (iii) RETREAT RULE: (a) MAJ: Stand your ground if it is necessary to save yourself. (b) CL (MIN): You must retreat to the point that you can (i.e. back up to the wall). (i) United States v. Peterson: Thieves try to steal windshield wipers from D so he comes outside and shoots them. Reasoning: **Peterson would not be protected under the castle doctrine (can’t be used by provoker), and did not back up as he should have under the CL rule as used in the case (should retreat). Further, he broke the general rule that says you can’t kill if someone is stealing property. Also, one who incites or encourages the fatal attack, cannot use self-defense. (iv) CASTLE DOCTRINE RULE: A man’s house is his castle and he can protect it; he does not have to retreat from it. (a) LIMITATION: Cannot be sued by someone who provokes or brings about the situation. (b) IN SOME JURISDICTIONS: Person IS required to retreat if the attacker also lives in the home (i) Battered wives must retreat under these jurisdictions although it has been shown that this makes things worse. (v) MPC: You don’t have to change your way/rout to avoid danger. CL would say that if you didn’t then you’re the provoker. (vi) Reasonable fear requirement (rule v): (a) RULE: The belief itself must be reasonable (MPC says that you just have to believe). People v. Goetz: D (Goetz) was riding the subway. 4 youths approached him and asked him for $5. He killed all. Rule: You can use deadly force only when you reasonably believe that it is necessary to defend yourself. (b) ASK: Would TARP have used self-defense (consider entire scope of circumstances)? (i) Physical attributes of persons involved (ii) D’s prior experiences (iii) Physical movements/comments of victim (c) MPC is more subjective (i) Under MPC, you don’t need a reasonable belief, just a subjective one. (d) NOTE: MPC does not allow SD to be used by someone who provokes another in hopes of using SD. 3) Battered women syndrome self-defense (i) Can self-defense be used by a battered spouse when the threat of death or GBH is not imminent? State v. Norman I: D was continuously beaten, tortured, ridiculed, humiliated by husband, Norman. She shot him in the head twice one day while he was asleep. Issue: Courts are SPLIT as to whether SD can be used by battered spouse if the threat is not imminent. 4) Defense of others (i) MAJ RULE (D must have reasonable belief of force necessary): A person is justified in using force to protect a third party from unlawful use of force by an aggressor when the third party would apparently be justified in using the force to protect himself. (ii) MIN (Alter Ego Rule): A person who comes to the aid of another is placed in his shoes (i.e. if attacker turns out to be a cop, too bad!). (iii) Is a fetus considered at an “other?” SPLIT. People v. Kurr: D stabbed boyfriend in the chest after he punched her in the stomach (she was carrying quadruplets). (i) Consider public policy in protection of fetus. 5) Defense of Property (i) RULE: Generally, you cannot use deadly force to protect the property itself. (ii) RULE of defense of habitation: If you’re at home and are defending yourself, you do not need to have an imminent threat, but you would still need to have a reasonable fear of GBH. (a) You must be at home in order to protect yourself and your property. If you’re at home, this may be self-defense. Ceballos: D sets up trap-gun; teenage boy tries to rob his garage, and was shot in the face, while D was not home. 6) Law Enforcement (i) RULE: Officer has to have a reasonable belief that the suspect poses a threat to himself or others. Consider: (a) Evidence that felon is armed (b) Evidence that felon just committed a crime involving violence. Tennessee v. Garner : D, a police officer, saw suspect climbing a fence, shot him, knowing that he was unarmed. Issue: Can deadly force be used to prevent the escape of an unarmed suspected felon? NO. (c) Cop knew that suspect was unarmed—no threat. 7) Necessity (i) Under CL, for a valid necessity defense, you must meet the following requirements: (a) There must be a choice of evils (i) NOTE: Economic harm will generally not be enough (b) D did not create the necessity (found in all jurisdictions today, but it is a CL element) (c) D does not have a legal alternative available (911) (d) Thee must be clear and imminent danger (e) D must chose the lesser evil (i) Whether the evil that was foreseeable to D was greater than the foreseeable consequences (f) NOTE: You must make sure that the necessity defense is allowed by the legislature (g) NOTE: Not allowed in murder cases (MAJ; MIN allows killing one life and saving many)!! (i) The Queen v. Dudley and Stephens (ii) Contrast to MPC (as usual more lenient): You can use if the evil avoided > the evil sought to be protected by the broken law. (a) NO immediacy requirement (b) If D caused the necessity, it does not automatically preclude him from using the defense (c) Can be used for homicide if you save more lives than you lose (d) No consideration of legislative restriction (e) ***If your are asserting necessity to a crime that requires a negligent or reckless mens rea, and you were negligent or reckless in bringing about the situation of necessity, you cannot use the defense. (iii) Nelson v. StateD steals dump-truck to pill out his 4x4. Rule: i. there really was no big “evil” to be protected against ii. D created the necessity iii. There was a legal alternative iv. No clear and imminent danger v. who is to say that he chose the lesser evil. Vi. Further, the legislature in this state required that the necessity be brought by natural forces. (iv) HYPO: Paul starts fire and then starts another to stop the first one. (a) CL: Would not allow him because he caused the situation that required the necessity.p (b) MPC: Would allow him to use necessity justification for starting he second fire, but not the first. (v) HYPO: Kill one conjoined twin and the other dies. Contrast this to Dudley: (a) Both twins were going to die for sure; in Dudley, they were not sure they would die. (b) Did the twin who lived have any choice in killing the other twin? C) Excuses—focuses on the individual: Circumstances suggest that the actor is not responsible for his deed. 1) HYPO: Paranoid woman strikes mailman with bat because she thinks he will plant a radio in her. 2) Duress (i) CL requirements (General): (a) Threat of death or GBH to you or someone close to you. (i) Cannot be economical or threat to reputation. (b) Imminently posed (c) Against D or a close friend or relative (d) Creating such fear that an ordinary person would yield (e) D did not put himself in the situation (f) D did not kill another person (ii) MPC requirements: (a) Threat of unlawful force (i) Cannot be economical or threat to reputation. (b) Against D or any person (c) Has to be of the type that would cause a person in reasonable firmness in the situation to yield (d) D cannot recklessly put himself in the position (e) NOTE: CAN use duress with murder. (iii) United States v. Contento-Pachon D was threatened (personal facts of his wife and child; their lives were threatened) so he swallowed cocaine balloons, transported them to the US and was caught. Rule 3 elements of the duress defense under common law. Reasoning: Factors to consider: 2) Well grounded?? Was the threat specific, did the threatening party have any knowledge, what was at stake 3) There was corruption (with police), so no opportunity to escape, (iv) Necessity VS. Duress: (a) Unger D was in jail and was transferred to a minimum security honor farm. D then walked off the honor farm. Prior to transfer, he had been threatened and sexually harassed. D said that he walked off due to fear of retaliation. Holding: D did choose the lesser of 2 evils and actually had free will, thus necessity should be allowed. (b) NOTE: Court said necessity is different in prisoner cases and considered the following guidelines: (i) If prisoner is faced with a specific threat of death, forcible sexual attack or substantial injury in the immediate future (ii) If prisoner cannot complain to authorities if it is futile (iii) Prisoner does not have time or opportunity to go to the courts (iv) Prisoner did not use force or violence against innocent people when escaping (v) Prisoner reports to proper authorities once he is in a position of safety (c) NOTE: IF you have a threat from forces of nature, this will likely be necessity. If from human beings, will likely be duress. 3) Intoxication (i) Involuntary: RULE: Complete defense if it makes you do a crime you would not have otherwise done. (a) Coerced intoxication: If someone tricks you to drink (b) Pathological intoxication: Given the amount, the intoxicant has an exaggerated effect on you due to your susceptibility. (c) Intoxication by innocent mistake: You took something not knowing what it is. (d) Intoxication from the ingestion of a medically prescribed drug: EX: You take a drug and it has an exaggerated effect on you. (ii) Voluntary (a) MAJ RULE: Can be used with any crime requiring more than recklessness. Further, you must be REALLY drunk. This rule is somewhere between the two MIN rules below. (b) MIN 1 (RESTRICTED MAJ): Can only decrease 1st degree murder to 2nd degree i.e. (c) MIN 2 (LIBERAL MAJ): Can be used with any crimes, even if the crime requires reckless or negligent mens rea. (d) Factors to consider: (i) Quantity of alcohol consumed (ii) Time period involved (iii) What does D remember (if he can’t remember, shows that he was more intoxicated). (iv) Blood/alcohol level (e) NO liquid courage (i.e. D forms intent, then drinks for courage). (iii) Can voluntary intoxication be used to negate the mens rea of a general intent crime (robbery)? NOT in a MAJ. YES in MIN 2. Graves D consumed more than a quart of wine and took LSD. He alleges that he began hallucinating. He then burglarized and robbed the home of a 75 year old man after which he died of injuries sustained during the robbery (F/M). 4) Insanity: Freeman sets forth the reason why we should not punish the insane because doing so will not rehabilitate, deter, or provide retribution (i) Affirmative defense: In a majority of states, the burden of proof is on D. (ii) Defining INSANITY (various tests): (a) GENERALLY (most tests have these in common): (i) D has to be suffering from a mental disease or defect (ii) There must be some relationship between the disease and the criminal conduct 1. MOST jurisdictions exclude defense to sociopaths and temporary emotional strain (i.e. anger, passion, etc.) 2. D has burden of proving by preponderance of the evidence. (b) English common law rule (earliest test): Does D have the mental capacity to know the difference between right and wrong? (c) M’Naghten rule: D had such a defect of reason due to a disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know that what he was doing was wrong. (i) Criticism: Requires total incapacity of cognition or nothing at all (there are marks between these 2 points) (d) Irresistible impulse or “control” test: D knows it is wrong, but can’t control the impulse (i) Criticism: How do we know if D could not control the impulse or if he chose not to? (e) Durham or “product” test: An accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect. This gave the jury more room, but did not give them enough guidance. This was eventually eliminated (lease used test). (f) MPC (American law institute) test [more lenient than M’Naghten]: 2 prongs: (i) Cognitive: When as a result of mental disease or defect, the D lacked substantial capacity to appreciate the criminality [or wrongfulness depending on jurisdiction] of his conduct (ii) Volitional: When, as a result of disease or defect, the D lacked substantial capacity to conform his conduct to requirements of the law. 1. NOTE: By late 1970s, MPC approach was adopted by a majority of states, but after the insanity acquittal of Reagan’s would-beassaassin abandoned for the Federal definition of insanity. (g) Federal insanity defense (made use of insanity defense much harder) (i) A. affirmative defense: It is an affirmative defense to a prosecution under any federal statute that, at the time of the commission of the acts constituting the offense, the D, as a result of a severe mental disease or defect, was unable to appreciate that nature and quality or the wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense. B. Burden of proof: The D has the burden of proving the defense of insanity by clear and convincing evidence. 1. Goes back to language of “unable” rather than “lacks substantial certainty.” 2. Severe: makes it harder to use insanity 3. While all other tests required preponderance of the evidence (>50%), the federal defense uses clear & convincing evidence, which is between BARD and preponderance XI) INCHOATE OFFENSES A) Solicitation Conspiracy Attempt Completed Crime B) Attempt will always have a merger doctrine. 1) GENERALLY: We have decided that we will criminalize some things, even though there is no completed crime (i) RATIONALE: We want to give law enforcement the ability to interferes before the completion of the crime. (ii) Complete Attempts: D has done all that he has set out to do; he can’t do any more, but the crime is still unsuccessful. (iii) Incomplete Attempts: Crime is prevented BEFORE D can do all that he has set out to do. 2) MR (i) CL requirements (a) Intent to commit the act (light fire) (b) Intent to commit the crime (commit arson) (i) NOTE: This intent may be inferred if you have knowledge of the likely consequences. 1. EXAMPLE: If you throw a hand grenade into a crowd with the intent to scare them, your intent to kill may be inferred. (c) We have a higher level of intent because since the crime isn’t completed we want to be completely sure that D intended to commit it. (i) HYPO: Man follows woman and she thinks (because he is black & ugly) that he is trying something. Gentry D and his girlfriend were arguing and D spilled gasoline on her and she ignited when she cam too close to the stove. Held: D cannot be charged with attempted murder b/c he did not have the intent to kill (murder). (d) Under MPC, if D did purposefully engage in the conduct, so he would be guilty of attempt. (ii) MPC—a & b apply to complete attempts; c applies to incomplete attempts (a) A) Purposefully engages in conduct that would constitute the crime if the attendant circumstances were as he believed them to be (did he purposefully engage in the conduct of pouring the gasoline? –this applies to conduct crimes) OR (b) B) When causing the result, did he act with the purpose of causing or with the belief that it will cause such result without further conduct on his part (this applies to result crimes)? Did he have the knowledge or belief that his act would cause her death and would this be done without further conduct on his part. (c) C) Is what he did a substantial step in a course of conduct planned to culminate in his commission of the crime. (i) NOTE: Knowledge or belief is substantial under MPC; CL requires specific intent. (iii) ACTUS REUS (a) Various CL tests (i) Indispensable element test: You need to have the indispensable element of the crime in order to prove actus reus (is there something that you absolutely must have to commit the crime—i.e. for armed robbery, you need to have a gun; to vote, you need a ballot). (ii) Probable desistance: If you have gone so far that the result is out of your hands, then there is an actus reus. If you are unlikely to stop after a certain point, this constitutes that actus reus. (iii) Abnormal step: If you do something abnormal in furtherance of the crime (i.e. if you buy a gallon of gasoline, not for your car, this is abnormal). (iv) Res Ipsa test: Your actions are so obvious (it speaks for itself), that there is an actus reus—not a widely used testat what point can the jury say: ‘it’s sufficient to assume that you were going to kill)—we can argue this at a wide variety of points, this is why this test is not that good. (v) Physical proximity test: How close are you physically to actually committing the crime. (vi) Dangerous proximity test (CL) (we will focus on this in the next cases): How great is the harm, how great is the probability that D will go through with the offense, and how near is D from committing the crime. BALANCE the harm VS. nearness to accomplishment 1. The more dangerous, the less close you need to be 2. Mention PP: Do we want police to intervene at this point. 3. CONSIDER: a. How many steps D has taken b. How much more action would be required to complete the act c. Why the harm never occurred d. The amount of harm e. The seriousness of the harm f. Appropriateness of law enforcement interference. (vii) Substantial step test (MPC): You’re not looking at what remains to be done, but what you have actually done so far. What kinds of things have you already done in furtherance of this crime? As opposed to dangerous proximity that focuses on what is left to be done. 1. Focus on what D has already done a. Lying in wait b. Enticing or seeking to entice the victim to go to the place of contemplation. c. Going back to the place of contemplation d. Unlawful entry of a structure, vehicle, or enclosure of contemplation e. Possession of materials to be employed in the commission that are specially designed for such unlawful use of which serve no lawful purpose of the actor under the circumstances. f. Possession of materials at or near the place of contemplation where such materials serves no lawful purpose of the actor under the circumstances. g. soliciting an innocent agent to engage in conduct constituting an element of a crime. 2. Reeves D (two 12-year-olds) decided to kill their homeroom teacher. The girls brought rat poison to school, but principal found out and stopped them as they were leaning over teacher’s desk (they hadn’t put the poison in yet). Held: According to MPC, possession of the rat poison was a substantial step (#5 & #6) 3. MPC approach attaches liability earlier in the sequence than most CL approaches, but makes up for this by allowing abandonment as a defense. (b) Distinguishing preparation from perpetration—flushing out the AR (i) Mere preparation DOES NOT MEET AR Peaslee D had arranged everything in a building so that they were ready to burn. The plan just needed a candle. D then offered to pay another person to light the candle; he refused. Then they both drove towards the building and within a 1/4 mile, D changed his mind. Rules: Probably desistance test: Would a reasonable person stop after all D has done? He did stop. Abnormal Step test: He had arranged everything and asked someone to light the candle=YES, AR. Dangerous proximity (HELD): Court said that the danger was high, but D wasn’t close enough, this was just preparation (ii) NOTE: If D’s employer had agreed to light the candle, under most of the tests, AR would exist (a little more than preparation). (c) HYPO: Patient turns 1 on prescription to an 11, is there AR? (i) Probable Desistence: He could have desisted after 1st refill, so probably not. (ii) Dangerous Proximity: The crime was not very dangerous/serious, so probably not. (iii) Abnormal step: Adding the 1 was an abnormal step, so probably yes. (d) Rizzo D was supposed to point out the guy with the $. They drove around trying to find him, but they did not find him. Holding: Dangerous proximity test: They were close enough to committing the crime. Other rules: Abnormal step: They did take an abnormal step by driving around with guns. Indispensable element test: They didn’t find the guy they were looking for. (i) We can argue this the other way as well: They were close to robbing someone and they eventually would have if they kept driving around. (ii) PP: If we did convict Ds of attempt we are sending the message that if you’re driving around, just go ahead and commit the crime b/c we’re going to charge you anyway. NOT GOOD. (e) Res Ipsa TEST: If a film is stopped at a certain point and the only thing the audience can conclude is attempt, then it exists Miller D (drunk) threatened to kill Albert. He went to his work with his rifle, starting walking towards him, loaded the gun, but was stopped Rule: Res Ipsa (unequivocal) test: An act does not constitute an attempt unless the actor’s specific criminal purpose is evident from her conduct, without considering any statement she may have made before, during, or after the incident regarding her state of mind (iv) In most jurisdiction, there is NO SUCH THING AS ATTEMPTED FELONY MURDER, b/c you can’t intent to commit FM. Bruce v. State D entered person’s shoe store and ordered him to open the cash register. Upon finding no money, D shot the owner in the stomach. (v) Defense of Abandonment—not available at CL, only MPC (a) There can be no attempt conviction if D voluntarily abandons his plan. BUT, once all elements are in place, abandonment will not workThere is a point of no return, but where do we draw it? McCloskey D planned on escaping from prison but abandoned his plan to escape from prison because he felt he had shamed his family enough. Rule: If D voluntarily abandons a criminal offense, before it is completed, he exonerates himself from criminal responsibility (b) For abandonment, D must CAV in: (i) Be Complete: You can’t postpone it (ii) Abandon efforts before crime is complete (iii) Be voluntary: Can’t abandon for fear of being caught. (c) NOTE: Abandonment is only available under MPC, because the AR under MPC is so much easier to meet, so MPC allows a way out. C) Conspiracy (i) GENERAL PRINCIPLES: A mutual agreement between 2 or more persons to commit a crime. (ii) AR (a) CL (MIN)—Agreement is enough for conspiracy, once you establish dual intent MR (b) MAJ—You need an agreement AND an overt act (i) NOTE: Overt act can be committed by ANY co-conspirator. (iii) Merger doctrine—Can’t be charged with both conspiracy AND the crime (a) MPC has merger doctrine (b) MAJ does not have merger doctrine—you can be charged with both conspiracy AND the crime. (i) HOWEVER, even if there is a merger doctrine, you can be charged with conspiracy to commit broad crime AND be charged with an actual narrower crime (i.e. conspiracy to rob many banks and guilty of robbing 1 specific bank). (iv) RATIONALE OF CONSPIRACY: (a) We again want an early chance to intervene (b) Group conduct is more dangerous than individual conduct. (v) Conspiracy is its own separate crime. 2) MR—Dual intent requirement (i) Intent to agree or conspire (ii) Intent to commit the crime (a) Again, knowledge is not enough, but we can sometimes infer intent from knowledge (in some jurisdictions). 3) AR (CA statute)—Was there an agreement??? (i) 2 or more persons (bilateral) [AC] (ii) Conspiring or agreeing [MR & AR] (iii) To commit any crime [AR or AC] (iv) Together with proof of an overt act (MAJ) [AR] (a) By one more of the parties (b) In furtherance of the conspiracy (v) How can we prove an agreement? (a) Presence at scene (b) Association with conspirators (c) Knowledge of the crime—This can be seen through conspirator’s conduct (i.e. suppose that in Azim, he did not know about the robbery and just drove away without asking questionsWe can presume that there was no knowledge and we can argue there was no agreement). (d) Azim D was convicted of conspiracy. D drove a car and 2 passengers got out, assaulted, and robbed someone. Issue: Was there sufficient circumstantial evidence of an agreement to conspire (part of the AR)? YES Held: We can infer an agreement from association with the co-conspirators, presence at scene, and knowledge of the crime. (e) NOTE: We want to be careful with implying that there was an agreement, because we are hooking D on with all other conspirators’ crimes. (f) REMEMBER to consider spontaneity with the 3 factors above when presuming an agreement. Spontaneity = no agreement. Commonwealth v. Cook D went to see friends, but ran into D and his brother. D fell down and D’s brother raped her, while D encouraged. Issue: Was there an unlawful agreement to commit the rape? NO, there was spontaneity. Reasoning: Courts weighed the 3 factors above (association, presence, and knowledge of the crime) and they all existed, but spontaneity! 4) DEFENSES to Conspiracy (i) Abandonment: When NONE of the conspirators are engaging in any action to further the objective. (ii) Withdrawal: If one party just takes off, he will likely only be guilty of the initial crime of conspiracy. (a) CL: Communication to conspirators that you’re pulling out. Now, co-conspirator has no responsibility for later acts and statements of others, but is still liable for the conspiracy. Some jurisdiction require calling police. (b) MPC withdrawal: D can inform co-conspirators OR call the police. He is now not responsible for co-conspirators’ acts. (c) MPC renunciation: If D successfully thwarts the success of the conspiracy, he can avoid liability for event eh initial conspiracy. (iii) Bilateral/Unilateral: If you’re in a bilateral jurisdiction AND you only have one conspirator. (i) Foster D initiated his plan to commit robbery when he talked to John about robbing an elderly man. John faked his agreement. 5) HYPO: J & K agree to bomb a building they both know is occupied in order to destroy it. They don’t want people inside to die, but they believe that they will. (i) They have implied malice, so this is 2nd degree murder. (ii) Is there conspiracy?? NO, b/c they did not have the intent to kill (similar to Swain). (iii) HOW about under MPC?? (a) Still, you need intent to commit the crime, BUT you could charge them with attempt under MPC (belief that conduct will cause result D) Conspiracy and accomplice liability 1) Pinckerton RULE (NOT UNDER MPC; with MPC use accomplice liability) Pinkerton Brothers conspired to commit IRS fraud. One committed the substantive act, while the other was in jail. RULE: Participation in conspiracy is enough to sustain a conviction for a substantive offense committed in furtherance of the conspiracy. (a) NOTE: In furtherance = Any crimes that are reasonably foreseeable as the necessary and natural consequences of the conspiracy. (ii) HYPO: A is the boss. B and C are robbing the banks. D steals a car for use in the robberies. Assume all are conspiring. What is each guilty of? (i) AConspiracy, solicitation (ii) BConspiracy, robbery of bank #1 (iii) CConspiracy, robbery of bank #2 (iv) DConspiracy, grand theft auto (b) Under Pinckerton’s RULE: (i) AConspiracy, bank robbery #1 and #2, grand theft auto (ii) BConspiracy, bank robbery #1 and #2, grand theft auto (iii) CConspiracy, bank robbery #1 and #2, grand theft auto (iv) DConspiracy, bank robbery #1 and #2, grand theft auto (iii) LIMITATION—when will liability stop??? (a) When there is success, failure, or conspirators are no longer trying. (i) i.e. if all conspirators are in jail, no more liability. 2) Hearsay is accepted in court against other co-conspirators (i) RULE: Hearsay is admitted IF it is made in furtherance of the conspiracy. Krulewitch Co-conspirator tries to admit hearsay as evidence and D defends using federal hearsay rule (hearsay is inadmissible as evidence). Rule: Hearsay from a co-conspirator against another can be admitted as evidence IF it is made in furtherance of the conspiracy. Held: Since the statement was made after the conspiracy has been abandoned, it cannot be admitted. 3) Can’t have conspiracy to commit a crime THAT DOES NOT REQUIRE SPECIFC INTENT (i) Can’t have conspiracy to commit 2nd degree murder b/c you can’t intent to commit 2nd degree murder. Swain Ds wanted to rob the victim, but they ended up killing him; they were convicted of 2nd degree murder with implied malice (conscious disregard for human life), but no express intent to kill. Held: Can’t have conspiracy to commit 2nd degree murder. (ii) HYPO: couple was outraged and conspired to kill If they are found guilty of VM, they can still be convicted of conspiracy b/c VM IS an intent crime. If they conspire, are outraged, but wait 72 hours, and then kill, they can be guilty of murder AND conspiracy to commit murder. 4) Goods and service supplier conspiracy (i) A supplier is a conspirator when he intends to further the criminal enterprise. Lauria D provided prostitutes with telephone service and knew that they were prostitutes and that they used his service for illegal activities. Issue: When is a supplier a conspirator? Held: We cannot infer that he intended to further criminal enterprise—he had no special interest, there was an honest use for his services, the volume wasn’t disproportionate, & the offense is a misdemeanor. (a) RULE: Supplier is conspirator WHEN (i) He knows of the illegal use (ii) He intends to further the criminal enterprise established by: 1. Direct evidence that he intents to participate OR 2. Through an inference that he intends to participate based on a. Special interest/stake in the activity b. There is no other honest use for the goods/service supplied c. When the volume of business supplied is grossly disproportionate d. The aggravated nature of the crime itself (i.e. if the crime is very bad, we don’t need that much evidence to show that he intended to participate). e. NOTE: This is one case where we can infer intent from knowledge. E) Accomplice Liability 1) GENERALLY: If A helps B commit the crime, A will be charged with the same crime as B (his shadow). (i) MODERN APPROACH: All those who assist the principal either before or during the commission of a crime are considered accomplices. (ii) NOTE: accomplice liability is not a crime by itself. It’s just hooking on an accomplice to an already committed crimeThere must be a crime!!! BUT, the primary person does not have to be convicted. (iii) SIDENOTE: If you’re an accessory after the fact, you may be less liable than just an accessory. (a) EXAMPLE: After a bank robbery, accessory conceals the robbery and hides the loot. 2) MR—dual intent (i) Intent to aide the primary party (ii) Purpose of the aide is that the crime succeed. CONSIDER: (a) Stake in the crime (b) Any reason why they would want crime to succeed (i.e. don’t like D). 3) AR—Any Aid or encouragement (i) Solicitation—If someone asks you to help and you do help and intend that the help be towards the success of the crime, you have AR (ii) Active assistance of the crime (you actually help in the commission of the crime) (a) i.e. driving the getaway car (b) NOTE: If you provide assistance, even though they don’t use your assistance (i.e. you don’t’ end up driving the getaway car), there is still aide = AR. (iii) Active encouragement of the crime (iv) Failure to prevent the crime IF you have a duty to do so or IF purpose of the failure was to allow principal to inflict harm (i.e. mother watches boyfriend beat the child). (v) Attempted aide is sufficient under MPC (i.e. you honk the horn but they don’t hear you). (vi) Presence? Mere presence is not enough to meet AR… (a) HYPO: Group of kids standing around, 1 announces that he will throw a rock. Other kids don’t have AR, because they were just present. (b) EXCEPTION: If your presence facilitates the crime. (i) LOOKOUT (CL SUBRULE)—If you agree to be a lookout in advance, then your presence does meet AR. (c) EXCEPTION: If your presence encourages others to help/aid/encourage. (i) If you’re standing there looking big and buff, watching out. (d) EXCEPTION: If your presence encourages the perpetrator. (i) State v. Vaillancourt D accompanied friend to a home and watched him as he tried to break in through window. Held: Mere presence is not enough to satisfy the AR. HELD: No AR (ii) CONTRAST this to Azim (conspiracy), where D’s presence was enough. SO, you will probably need a little more AR for accomplice liability than for conspiracy. 4) HYPO: Guy buys kids guns and they result in Columbine. ANALYSIS: He did not have intent to further the crime, so no MR. 5) MUST encourage the crime, not the conduct for AR: HYPO: Alice tells Bob to drive as fast as he can (i) Bob exceeds the speed limit and as a result unintentionally strikes Carl from behind, killing him (a) Alice encouraged the speeding, so there would be AR (ii) Bob runs red light, killing Carl (a) Alice did not encourage the running of the light, so she did not encourage this crime; no AR. 6) Intent—when is it not required? (i) Even if crime requires reckless MR, you can still be accomplice if you aide and intend to further the conduct. Riley v. State 2 Ds fired into a crowd, but we’re not sure whose shot injured the victims. Reasoning: You can be an accomplice to a reckless act by being reckless yourself. (a) The court is asking whether you need an intent to further or encourage the crime OR the conduct. If you can’t really intend the crime (i.e. assault, requiring recklessness), MAJ says you just have to have intent to further the conduct 7) Natural and probable consequences doctrine (NOTE that this is a MAJ rule; not always applicable)—Extends accomplice liability for both intended crimes AND crimes that are the natural and probable consequence of the crime you meant to further (i) RULE: The second crime must be in the ordinary course of things, a natural and probable consequence of the intended crime, even though it was not done in the furtherance of the first crime. (ii) Linscott D and Fuller drove to rob a cocaine dealer. D was to break the window so Fuller can show the gun, but Fuller shot and killed him. Rule: Natural and probable consequences doctrine 2 fold intent requirement: 1) That D intended to commit the primary crime 2) The secondary crime was a natural and probable consequence of actor’s participation in the primary crime. Reasoning: They took a gun, were robbing a drug dealer, etc. This was enough to assume that it was N & P (a) HYPO: If Fuller had burned the house down, this would not be N & P. 8) Innocent Agent Doctrine--When someone acts as your unwitting agent, you are independently liable (as though that person were a gun or a pit bull) for that substantive crime. (i) RATIONALE: How can you be an accomplice to someone who did not commit any crime??? You will then be the primary actor: Bailey D and Murdock had been drinking and were cursing at each other through handheld radios. D told Murdock (blind and drunk) to come outside with his gun and then he called police. When police arrived, Murdock shot at them, police shot back, killing him. Issue: Should D be charges as being the primary actor? YES, cops were his innocent agents. Reasoning: D cannot be accomplice b/c there is no primary actor to hook him onto. 9) Abandonment/Withdrawal (i) CL—MAJ of jurisdictions do not recognize an abandonment/withdrawal defense. (ii) MPC—Recognized abandonment defense if D terminates his or her involvement prior to the commission of the offense AND (a) Wholly deprives it of effectiveness OR (b) Gives timely warning to law enforcement authorities or otherwise makes proper efforts to prevent the crime. XII) THEFT CRIMES (***Ignore MPC with theft crimes) NOTE: theft is largely moderated by statute, not CL. A) Larceny: The trespassory taking and carrying away of personal property of another with an intent to steal 1) Actus Reus (i) Trespassory taking: Taking is trespassory because person who lawfully possesses the property does not consent to the taking. (ii) Carrying away: Any carrying away will suffice, even a few inches. (a) Constructive VS. actual possession—if you have both, your taking is not trespassory. Rex v. Chisser, 1678 Shop owner GIVES D cravats, he runs out of the store. Issue: AR: Larceny requires a “trespassory taking.” Is the AR met? YES. Reasoning: D never had constructive possession, so his taking was trespassory. (b) Before Rex, if someone was handed property, they could walk away with it b/c their taking would not be trespassory. (iii) Custody RULE: If one is given property for a limited and temporary purpose, they have possession of the bag, but custody to what is inside. US v. Mafnas (1983) Armored car guard (D) opened bags of money and stole from the bank. Issue: Is this larceny if D had possession of the bags, with the bank’s consent? YES Reasoning: D had a limited purpose and has possession of the bag, but only custody of what is inside. If he opens the bag and takes something out, he has broken bulk. (a) Breaking Bulk: When a bailee is entrusted with possession of a bag (not the contents; NOTE: This is custody) and he opens it and removes something, he has broken bulk and this is a trespassory taking. (i) HYPO: If bailee does not open the bag, but just runs away with it, this is not larceny, but will flow into embezzlement. (ii) CONTRAST to Mafnas: In Mafnas, he did not have possession, ONLY custody (possession over bag, not its contents). (iii) HYPO: Drinking glasses are to be delivered by X 1. X just takes them home and opens the box Larceny because bailee broke bulk = trespassory taking. 2. X gives them to C who opens the box Did not break bulk, so no trespassory taking and no larceny. 2) Mens Rea (i) “With the intent to permanently deprive owner (a) Intent to deprive of the value = intent to steal People v. Davis D walks into Mervyn’s, takes a shirt and tries to return it at other department. Security sees this but tells cashier to give him the voucher. Reasoning: Intent to steal = intent to permanently deprive. You can’t return an item unless you have 100% possession AND if you claim you have this, you have permanently deprived the true owner. (b) Intent to steal includes: (i) Intent to “sell” the property back to the owner (ii) Intent to claim a reward for “finding” the property (iii) Intent to return the property to its owner for a “refund.” (ii) If you borrow, this does not meet MR. (iii) If you plan on giving it back, it does not meet MR. (iv) Honest reasonable mistake, still does not meet MR. 3) Attendant circumstances (i) Must be property of another (ii) Must be in possession of that person. B) Robbery = Larceny but taking must be by force, fear, or intimidation. 1) ALSO, you must be taking the property from the victim’s person. There must be some physical proximity. C) Embezzlement: Some fraudulent conversion or misappropriation of the property of another that the D already had physical and constructive possession of 1) If D is entrusted with the property (given physical and constructive possession) and he just takes it. Rex v. Bazeley 1799 Bank teller takes a note from a customer & puts it in his pocket. Issue: Is this larceny if the bank did not have actual nor constructive possession yet? NO, prisoner excused Reasoning: How can D have taken possession from bank if bank never had constructive or actual possession? (i) D was entrusted with physical and constructive possession (bank didn’t have possession yet). How could there be a trespassory taking? (a) NOTE: If D put the money in the drawer and then took it, this would be a TT, since bank had physical and constructive possession. (ii) SO, embezzlement was created to fill in this gap. 2) ELEMENTS: A fraudulent conversion (or misappropriation) of the property of another that the D already possesses. (i) ACTUS REUS = the misappropriation or conversion (ii) AC = property of another that D has possession of 3) NOTE: With employees consider embezzlement because they are given possession. With independent parties, consider larceny (bailor/bailee situation or breaking bulk) because they are given custody (possession of bag given to armored guard). 4) HYPO: Manager of a store decides to take a TV home without paying for it. As manager, he is in lawful possession of the items in the store, so he is guilty of embezzlement. D) Larceny by trick: When D 1) takes possession of the property of another (AR) 2) by false representations or deceit (AC) 3) with the intent to defraud (MR). 1) NOTE: There is no trespassory taking (contrasted to larceny), because the true owner voluntarily give possession to D. HOWEVER, the fraud takes the place of the trespass. 2) HYPOS (i) D rents a horse and promises to return it, but never instead keeps it (ii) D offers to hold victim’s ring while she swims, but just takes it. (iii) D drives into gas station fills up and leaves the gas station without paying. D did not have lawful title to the gas, but he did have possession. E) Theft by false pretenses: When D takes possession AND TITLE to the property D makes a false representation with the intent to defraud the owner of property and the owner is in fact defrauded. 1) People v. Whight D’s ATM account was cancelled, but b/c of error in system, still used it to get $19,000 Rule: Theft by false pretenses: 1) D made a false representation, 2) the representation was made with intent to defraud the owner of his property AND 3) that the owner was in fact defrauded in that he parted with his property in reliance upon representation. Issue: Did the bank rely on D’s representation (D argues that bank relied on computer, not on D’s representation)? Reasoning: B/c the system was broken, bank had nothing to rely on but D’s representation that card was valid. (i) NOTE: The court said that mere non-disclosure is not enough, there must be non-disclosure along with some act (i.e. D’s use of his card). (ii) ALSO, misrepresentation does not have to be express, but can be implied through conduct. 2) AR—misrepresentation (i) Express or implied (ii) Non-disclosure + some act 3) MR—with the intent to defraud 4) AC—The owner was in fact defrauded by parting with the property in reliance upon the misrepresentation. (i) NOTE: If person gives you the item for reason other than your misrepresentation, there is no theft. Owner must rely on your misrepresentation. 5) HYPOS: (i) D offers to swap his gold watch for P’s ring, but the watch is not real gold (a) AR = express: saying that the watch is real (b) MR = D did intend to take the ring (c) AC = P did rely on the fact that it was gold and was actually defrauded. (ii) D tells store clerk that she only gave him $5 back, but she has actually given him more. (a) AR = express: saying that you only gave $5 back (b) MR = Since D knew that she had given more back, he did intend to defraud (take more money) (c) AC = Clerk did rely on this statement and was defrauded.