Criminal Law, Duncan 2003 by ixv14491

VIEWS: 4 PAGES: 15

									Criminal Law, Duncan 2003
The Justification of Punishment
     A. Identifying characteristics of criminal law: state brings the action, liberty at state, stigma
        associated with the proceeding.
             i. Purpose of punishment is to honor the law.
     B. Legitimacy and the State: that community that holds a monopoly over the legitimate use of
        force within a given territory.
             i. criminal law is the legal realm there interaction between the individual and the state is
                most dramatic.
     C. Purposes of punishment: 3 R’s and a D
             i. Backward looking:
                    1. Retribution: not utilitarian.. an end unto itself.
                           a. criticized as mystical,
                           b. sophisticated response (durkeim), fulfills utilitarian function but only if we
                               do it for non utilitarian reasons.
            ii. Forward looking
                    1. Rehabilitation: puritan idea, only rehabilitated inside?
                    2. Restraint: incapacitation
                    3. Deterrence : (specific / general), I’d as soon be hanged for a sheep as a goat.
The Elements of Punishment
     D. Actus Reus: Voluntary Bad Act
            i. Common Law Definition:
                 1. Voluntary physical act (includes speech but not thought),
                        a. VOLUNTARY: courts often require even if not in statute. ex. D was shot
                            and then killed cops while “unconscious”
                        b. Knew they outcome was likely... not every act leading up to crime need be
                            voluntary if you knew.
                 2. Culpable Omission (when a legal duty exists)
                        a. General Rule : not liable for omissions (most states don’t have good
                            Samaritan laws).
                        b. 5 Exceptions
                                 i. Statute: ex. driving law
                                ii. Special relationship: relative, maybe roommate
                               iii. K duty: ER / EE, captain / crew
                               iv. Beginning to Help:
                                v. creation of the peril.
                                        1. intentional: liable
                                        2. accidental: but chose not to help.
                                                a. courts split ex. let house burn
           ii. MPC Definition
                 1. Voluntary act or failure to act when action is physically possible.
                        a. Involuntary acts :
                                 i. reflex or convulsion
                                ii. movements when asleep or unconscious


                                                                                                           1
                            iii. conduct under hypnosis
                            iv. bodily movement caused by external forces
             2. Culpable Omission
                     a. only when statute makes it criminal or civil law requires action
E. Mens Reus
       i. Basic Concepts
             1. Common Law Intent:
                     a. requires Intent or recklessness: requires (subjective personal awareness)
                     b. Criminal intent for one act: does it apply to all outcomes even with no
                        awareness?
                              i. Faulkner: no,
                             ii. Terms that can help with the argument
                                      1. Mala in se: universally bad
                                      2. Malum Prohibitum: only bad b/c of law
             2. MPC Intent
                     a. Subjective
                              i. Specific Intent: treason and accomplice cases require PURPOSE
                                      1. Purpose: (treason and accomplice)
                                      2. Knowledge (good enough for others)
                             ii. Recklessness: conscious risk creation.
                     b. Objective: (rare in criminal cases)
                              i. Negligence: should have known, unjustifiable and unreasonable
                                 risk.
      ii. Possession
             1. Common law: (Jewel) : liable for possession if
                     a. “liable if ignorance was solely and entirely the result of a conscious
                        purpose to avoid the truth.”
                     b. dissent: (1) must be aware of probability of presence, and (2) should get
                        off if honestly believed not there.
             2. MPC: liable for possession if:
                     a. knowingly procured OR
                     b. been aware of his control for long enough to have been able to terminate
                        the possession.
     iii. Mistake:
             1. Traditional rule: mistake of fact excuses, mistake of law does not.
                     a. Common law: Mistake of Fact
                              i. Common law: arguments (no clear rule)
                                      1. PRINCE: does intent apply to all elements of crime
                                             a. ex. tenant removing “his” improvements
                                      2. MORGAN reckless v. intent (subj)
                                             a. reckless: conscious risk creation
                                             b. intent (honest belief): didn’t know..
                                                     i. reasonableness often creeps in.
                     b. Common law: Mistake of Law: is no excuse.
                              i. reliance on interpretation:
                                      1. Private counsel (only NJ allows)



                                                                                                    2
                               2. public officials (more states allow reliance)
                       ii.
        2. Sophisticated Analytical Approach: excuses
               a. Mistake of fact
               b. mistake as to a matter of civil law that has been incorporated into
               c. mistake as to the existence or meaning of a criminal statute
                        i. traditional approach sort of works here..
                       ii. except.. LAMBERT (felons must register..)
               d. Bad advice: mistake as to a law that would justify something that would
                   otherwise be criminal (US v Baker)
        3. MPC: (unclear... circular?)
               a. ignorance of law or fact is a defense if it negatives the mens rea required
                   for the crime.
               b. interpretation of the law by an official charged with interpretation shall be
                   a defense.
        4. General ideas:
               a. Law / fact distinction is often unclear and unjust,
               b. the law needs flexibility.
               c. Omission (non vs. mal action): should we punish
                        i. Pro: D can hid behind ignorance, educational function of
                           punishment, legality (law must be knowable.. see below)
                       ii. Con: harsh, stigmatizes people with no intent,
                                1. Actions: the mind is on actions, but.. when you omit
                                   something you don’t think about it.
               d. Government interest vs. Due Process (contrast).
                        i. Lambert: Un K (violated due process)
                                1. omission (didn’t register)
                                2. no reason to know (odd law)
                                3. government interest small (convenience)
                       ii. Intl. Mineral; K
                                1. action (shipping on US highways)
                                2. reason to know (highly regulated industry)
                                3. large gov. interest (acid very dangerous)
iv. Strict Liability: The Abandonment of Mens Rea:
        1. Individualism in the west favors the requirement that D have both
               a. Actus reus and mens rea and that they be simultaneous.
        2. General rule: the more heinous the crime the harder to convict
        3. Public Welfare Offenses (no intent required)
               a. General characteristics: not mala in se, modern, requiring intent would
                   render the law ineffective.
               b. Requirements:
                        i. no stigma
                       ii. penalty low
                      iii. not a common law crime: OR legislature must explicitly change
                           the common law presumption that mens rea is required.




                                                                                              3
                            c. Defenses: even though mens rea isn’t a defense. you could still argue not
                               voluntary... sick, car broke. etc.
      F. Proportionality
             i. Purposes of punishment Incremental punishments favored
                     1. Retribution: justice oriented: punishment must fit the crime
                     2. deterrence: proportionality increases the effectiveness of punishment. “I’d as soon
                         be hanged for a sheep as for a goat”
            ii. US K: recently changed:
                     1. Proportionality prong almost totally gone... must be extremely bad
                             a. “so disproportionate that it shocks the conscience and offends fundamental
                                 notions of human dignity.”
                     2. Absolutely Barbaric: ex: lingering death, loss of citizenship.
           iii. State K: TEST: (In Re Lynch)
                     1. Un K if the MAX POSSIBLE sentence is “so disproportionate that it shocks the
                         conscience and offends fundamental notions of human dignity.” FACTORS
                         TEST:
                             a. Aggravating Circumstances: danger of crime, violence of crime, other
                             b. Same JD equivalence of punishment for other crimes in JD
                             c. Other JD: equivalence of punishment for same
      G. Legality:
             i. Idea: criminal law must be CERTAIN and KNOWABLE.
            ii. General rule: No New common law crimes: courts may modify old ones but creation is
                left to the legislature.
                     1. Separation of powe rs, Notice and due process require..
                     2. courts used to want to “fill in the gaps”
           iii. Actual vs. theoretical notice : courts are generally more concerned with theoretical
                notice than actual notice... you should at least have to opportunity to check... must be
                readable, knowable, and accessible.
                     1. deference to separation of powers and notice often trumps the judicial desire
                         punish mala in se crimes.
           iv. Vagueness: the law must be clear enough that a reasonable person could know when he
                is breaking the law.
                     1. vague laws may allow abuse of discretion
                     2. “inchoate” crimes are particularly problematic area for legality

II.   Homicide
      A. Murder: the unlawful killing of another human being with malice aforethought
             i. Malice Aforethought can be proven in 4 ways:
                    1. intent to kill: (1st or 2nd) depending on premeditation (see below)
                    2. intent to serious bodily harm: (MPC folds into Criminal Negligence or
                       depraved heart) 2nd
                    3. depraved heart murde r: (recklessness without intent) 2nd
                    4. felony murder: (intent to commit felony = malice to commit murder) 1 st or 2nd
                       depending on felony
      B. Legislative Grading of Intended Killings
             i. The Premeditation- Deliberation Formula


                                                                                                           4
        1. Common law
              a. Originally no degrees at common law: added to allow punishments for
                  murder other than death.
                       i. Premeditated: 1st degree, not = 2nd degree
              b. Tests at Common law (contrast)
                       i. CAROL: “no time needed for an evil heart to form intent” (intent
                          to kill..)..
                      ii. ANDERSON: “premeditation requirement would be meaningless
                          if all it meant were intent to kill” Formulaic:
                               1. PLANNING: (prior to killing)
                               2. MOTIVE
                               3. MANNER of Killing: demonstrates an action designed to
                                    kill (small attack.. ex. small knife wounds vs. an obviously
                                    lethal attack.. ex. gun)
                               4. Strong Planning alone can be enough, but the other two
                                    must be had in combination to prove premeditation.
        2. MPC:
              a. No premeditation or degrees
              b. Policy: planning is not a good proxy for heinousness.. ex mercy killings,
                  or people who kill without thought.
              c. Aggravating and Mitigating Factors replace degrees
                       i. If death imposed must have 1 Aggravating with on mitigating.
                      ii. Aggravating: full list on 1079 (need to know?), convict under
                          sentence, previous murder, violent crime... etc.
                     iii. Mitigating: no history, distress, consent of victim, D believed
                          morally justified, Accomplice with minor role, D acted under
                          duress, knowledge of right and wrong impaired, youth of D
ii. Heat of Passion: (voluntary manslaughter) The Provocation Formula: doesn’t have to
    be rage.
        1. Common Law
              a. Most JD: Intentional homicide committed under mitigating circumstances
                  that do not completely excuse the murder.
                       i. treated as voluntary manslaughter. (lesser crime)
              b. Ele ments Required: Murder + Provocation formula
                       i. reasonable person would have been provoked
                               1. to what? do reasonable people murder?
                               2. see below
                      ii. D actually provoked:
                     iii. reasonable person would not have cooled off
                               1. Rekindling: courts split: is it possible to “cool off” and
                                    then be rekindled?
                     iv. D did not cool off.
              c. Reasonable Provocation: (CONTRAST w/ MPC below)
                       i. Some JD limit to a set list of circumstances
                               1. extreme assault or battery even w/ out touching
                               2. painful blow (unless D started it)



                                                                                               5
                                     3.  mutual combat
                                     4.  illegal arrest (must know it is)
                                     5.  defense of family
                                     6.  sudden discovery of adultery
                                              a. Modern trend:
                                                       i. spouses treated equally (old used to favor
                                                          husband)
                                                      ii. don’t have to see
                                    7. Mere words: SPLIT
                                              a. Liberal JD: “jury should decide”
                            ii. Reasonable person standard: SPLIT
                                    1. MAHER: “men of fair mind and average disposition”:
                                         unless D has a peculiar weakness that isn’t wicked.
                                    2. CAMPLIN: “pe rson with D’s traits”
                           iii. Provocation to what?
                                    1. MAHER: provoked
                                    2. CAMPLIN: provoked to the action D took
              2. MPC: §210.3 (b) Heat of Passion
                    a. Criminal homicide is reduced to manslaughter when D
                             i. under extreme mental or emotional disturbance
                            ii. with a reasonable explanation or excuse
                                    1. reasonable person: in the D’s situation as D believes it to
                                         be
              3. Objective vs. Subjective Standard for provocation
                    a. For Objective:
                             i. excusing the behavior encourages it,
                            ii. the factors that mitigate are the qualities we fear most in a
                                criminal.
                    b. For Subjective:
                             i. not all people are the same, so fairness requires a flexible standard.
                            ii. people seem less culpable when we can imagine ourselves doing
                                what they did.
C. Legislative Grading of Unintended Killings
       i. Involuntary Manslaughter (not as bad as depraved heart murder)
              1. Unlawful act doctrine : death resulting from a misdemeanor
                    a. abolished in almost all JD
              2. Criminal Negligence (contrast with depraved heart)
                    a. Common law:
                             i. Distinguishes between vol. and involuntary MS
                                    1. now we are discussing common law involuntary MS, above
                                         under Heat of passion we discussed voluntary common law
                                         MS.
                            ii. Standard: JD’s split
                                    1. Simple tort negligence: (small minority)
                                              a. OBJECTIVE: reasonable person would know that
                                                  their conduct created A RISK



                                                                                                     6
                                    b. Proximate cause also applies.. WILLIAMS: Navaho
                                        Indian case.
                                             i. would reasonable person have known in
                                                 time?
                            2. Gross Negligence: (split again)
                                    a. Traditional: OBJECTIVE: D’s conduct creates a
                                        HIGH RISK
                                    b. Modern: SUBJECTIVE: D must actually be aware
                                        of the risk. = recklessness: conscious risk creation
                            3. EXCEPTION (to the JD divisions above): Inherently
                                dangerous instrumentalities: most JD require only
                                OBJECTIVE SIMPLE NEGLIGENCE (not gross.. risk not
                                high risk) when D uses a dangerous instrument.
                                    a. cars do not count.
             b. MPC: CRIMINAL NEGLIGENCE
                    i. No distinction between Vol. and Involuntary. MS.
                            1. heat of passion, Vol. MS and Involuntary MS together
                                under criminal negligence. .
                            2. MPC puts Depraved heart under felony murder.
                   ii. Rule
                            1. Homicide = Manslaughter when
                                    a. D is Reckless: (= SUBJECTIVE (modern) Gross
                                        negligence).. conscious risk creation. OR
                                    b. Heat of Passion: (same as common law formula)
             c. Policy: Should Negligence = Vol. Manslaughter?
                    i. Purpose of punishment:
                            1. No mens rea (problem for Retribution)
                            2. If D is unreasonable can he be deterred?
                   ii. Reasonable person standard:
                            1. Subjective or Objective ?
                            2. Should it vary by culture?
ii. Depraved Heart murder. (worse then involuntary MS)
       1. Common Law
             a. Traditional definition: murder committed with an abandoned and
                malignant heart.
                    i. Contrast with MPC def: “reckless indifference to human life:
                   ii. in a rare case D got off b/c helping his victim afterwards proved
                        his heart wasn’t “abandoned and malignant’
             b. Rule Ele ments:
                    i. Unintentional homicide resulting from conduct that creates an
                        UNJUSTIFIABLE, EXTREMELY HIGH RISK of death or
                        serious bodily injury
                            1. Unjustifiable: D didn’t have an excuse. (emergency)
                            2. EXTREMELY HIGH RISK: contrast with MS.. just says
                                HIGH




                                                                                           7
              ii. OBJECTIVE ELEMENT: a reasonable person would have
                  realized this
             iii. SUBJECTIVE ELEMENT: (SPLIT)
                      1. Majority: only objective
                      2. Minority: D must be aware of the RISK and that it is
                          UNJUSTIFIABLE.
                              a. even these courts often use circumstantial evidence
                                  in a way that looks objective when proving.
                              b. most important in cases like drunk driving.
2. MPC Approach:
       a. Definition: reckless indifference to human life.
               i. SUBJECTIVE AWARENESS REQUIRED
              ii. Felony murde r: creates a presumption of awareness.
3. Depraved heart vs. Criminal Negligence: (what’s the difference?)
       a. No clear line because its only a difference of degree.
               i. Depraved heart ... EXTREMELY HIGH = murder
              ii. Criminal Negligence. HIGH RISK = Man Slaughter
       b. Depraved heart murder
               i. tends to be bad action: (extremely high risk)
                      1. shooting at a moving car
                      2. throwing a beer glass at a woman with an oil lamp
                      3. Russian roulette
       c. Criminal Negligence:
               i. tends to be omission (high risk)
                      1. letting patient be wrapped in kerosene
                      2. mother left child with abusive lover
                      3. parents failed to take baby to doctor.
4. Intoxication: Can it negative mens rea
       a. Voluntary:
               i. Common Law: SPLIT
                      1. Some states: always say no
                      2. Others: Specific vs. General Intent
                              a. SPECIFIC INTENT Crimes: require Intent in the
                                  form of PURPOSE and KNOWLEDGE:
                                       i. ex.. Burglary: unlawful entry into a dwelling
                                          at night with the intent to commit a felony
                                          therein. (can’t form intent if you’re drunk)
                              b. GENERAL INTENT: crimes: merely require
                                  Recklessness or negligence as evidence of intent.
                                       i. ex. depraved heart murder
                                      ii. can still be guilty if drunk
              ii. MPC:
                      1. Voluntary Intoxication is
                              a. a defense to intentional crimes?
                              b. no defense to reckless crimes.




                                                                                      8
                                      c. MPC uses frame of reference of D, and usually it
                                          helps D, but in this case it hurts him.
                                      d. Example: Drunk driving alone usually isn’t enough
                                          for depraved heart, but DD + recklessness can be
               b. Involuntary Intoxication
                        i. Negatives: Actus and Mens rea.
                              1. Ex. forced to drink, or if you take medication and
                                  reasonably don’t know it will make you intoxicated.
iii. The Felony Murder Doctrine (NO INTENT TO MURDER REQUIRED)
        1. Common law
               a. Definition: an unlawful killing that occurs in the commission or
                  attempted (furtherance of) commission of a crime.
               b. Disfavored doctrine : should we even have it?
                        i. Arguments for
                              1. Deter accidental killings
                              2. Convict: make it easier to convict on murder (malice not
                                  required)
                              3. Degree of murder fixed.
                       ii. Arguments against
                              1. Mens Rea: Departure from basic principles of criminal law
                              2. Not Proportional: leads to non proportional punishment:
                                  ex. if you’re liable for all deaths.. its a function of luck
                                  whether some one happens to die of a heart attack.
                              3. No Deterrence : can you really deter accidental killings?
               c. Limitations on Felony murde r
                        i. Statutorily Named felonies
                       ii. Traditional Common law Felonies
                              1. rape, sodomy, burglary, arson, mayhem, larceny,
                      iii. Malum in se felonies
                      iv. Dangerous Felonies (JD’s split: abstract. vs. particular facts)
                       v. Time felony in progress narrowly construed
                      vi. CO Felon Liability: competing theories: Proximate Cause vs.
                           Agency vs. Vicarious liability:
                              1. Proximate cause: liable for all deaths proximately related
                                  to action regardless of victim or actor.
                              2. Agency: Agent “person furthering the felony” SPLIT:
                                      a. WHO KILLS: only liable for kills by agents (not
                                          liable for kills by victims)
                                               i. EXCEPTION: shield doctrine.. if a victim
                                                   is used as a shield then liable regardless of
                                                   who shoots.
                                      b. WHO IS KILLED: liable for any innocent deaths
                                               i. doesn’t matter who shoots, and no one liable
                                                   for the death of a co felon.
                              3. Vicarious liability: WHO PROVOKED




                                                                                              9
                                              a. CONTRAST WITH AGENCY?? Agency is more
                                                  limited in scope?? doesn’t allow depraved heart
                                                  liability..
                                              b. Felon is Liable for the conduct of his accomplices
                                                  when they act in “furtherance” of the felony.
                                                        i. D not liable if accomplice was no longer
                                                           acting in “furtherance” of the crime.
                                              c. May be liable for depraved heart murde r:
                                                  (conscious risk creation by accomplices)
                                                        i. ex: Quiet vs. Aggressive Robbery:
                                              d. WHO IS KILLED: SPLIT
                                                        i. TAYLOR: liable even if accomplice
                                                           provokes his own death
                                                       ii. ANTICK: accomplice can’t be liable for
                                                           provoking his own death so neither can D.
                            vii. Merger Doctrine : must have an independent felonious purpose
                                      1. Felony murder theory barred if underlying felony was the
                                          same as murder.
                                              a. otherwise intent would almost never be required b/c
                                                  assault is usually a felony.
                                      2. ASSAULT: with a deadly weapon is an integral part
                                      3. ARMED ROBBERY: is independent
                                      4. BURGLARY: unlawful entry into a dwelling at night with
                                          the intent to commit a FELONY therein
                                              a. when felony is assault COURTS SPLIT
                                                        i. ALLOWED: attack on a dwelling is more
                                                           dangerous
                                                       ii. DISALLOWED: too closely related.
                                      5. CHILD ABUSE:
                                              a. BEATING: MERGES
                                              b. Long term NEGLECT: Does not merge.
               2. MPC: Eliminated Felony murder
                      a. DEPRAVED HEART: (extreme indifference to human life) folds into
                         depraved heart
                      b. REBUTTABLE PRESUMPTION: felony murder creates a rebuttable
                         presumption on the issue of mens rea (extreme indifference to human
                         life) for depraved heart under MPC.
                              i. question must go to jury. and they MAY find a felony sufficient
                                  evidence but do not have to.
D. The Death Penalty
       i. The Neck Verse: traditional laws often imposed the death penalty for minor crimes so a
          fiction was developed to get around it: Clergy were exempt, and the courts defined
          “clergy” as anyone who could read, to prove your ability to read you were always asked
          to read Psalm 51, and so illiterate people could just memorize it.
      ii. 8th Amendme nt: No cruel and unusual punishment (14th extended to states)
               1. FURMAN: Majority split



                                                                                                  10
                          a. Procedure: arbitrary “like being struck be lightning”
                                 i. must not create a substantial risk of arbitrary and capricious
                                    infliction of the death penalty.
                                ii. some say no procedure can guarantee this.. (tinkering w/
                                    machinery of death)
                          b. Absolutely Bad: Always barbaric:
                     2. GREGG:
                          a. Absolutely Bad: K test: “Is it cruel and UNUSUAL”
                                 i. Evolving Standard: “unusual” invites empirical survey. most
                                    state legislatures have amended and retained their death penalty
                                    recently
                                         1. still in keeping w/ society’s values
                                ii. still proportional
                               iii. purpose of punishment... “retribution or vengeance”
                          b. Procedure: (Tension between requirements) must be:
                                 i. Systematic: orderly procedure
                                         1. bifurcated trials (guilt / sentencing)
                                         2. guidelines for jury: ok to require aggravating before death
                                             sentence possible.. can’t limit mitigation
                                         3. Automatic Appeal
                                ii. But not Mandatory: individual dignity demands individual
                                    consideration: death sentence can NEVER be MANDATORY
                                         1. Particular Facts considered
                                         2. Can’t limit mitigation by jury
                          c. CO felons? (felony murde r is disfavored anyway..)
                                 i. INMAN: No death penalty if you didn’t intent the murder
                                ii. TAYLOR: Allowed death where sons helped father out of prison
                                    and gave him weapons when they knew he was dangerous?
                                         1. reconcilable w/ Inman P: they indented, D: proof is weak.
III. Attempt: an inchoate crime.
     A.   Definition: an act done with the intention of committing a crime that does not succeed
     B.   Punishment: lesser at common law, the same under MPC
     C.   Substantive crimes of attempt: burglary, loitering, etc..
     D.   Merger: can’t be guilty of both attempt and the actual crime (conspiracy does not merge)
     E.   Common law
              i. Intent (Mens Rea): SPECIFIC INTENT IS ALWAYS REQUIRED
                      1. Purpose and Knowledge: both required even for SL crimes
                      2. why? b/c the mental element is so important to the cirme and so ambiguious
             ii. Actus reaus: when in time is the actus reaus made out? (mere preperation vs. last act)
                      1. Common law: harder to prove, but can’t get out once proven
                              a. Proximity test: Split: last step possible vs. dangerous proximity to success
                                      i. focus on what reamains to be doen, not what has been done
                                     ii. problem: can you enforce if you have to wait so long?
                              b. Time to repent or decist: was it possible or likely D would repent
                                      i. outcomes often similar to proximity test
                              c. Equivocally: from D;s OBJECTIVE acts its clear he won’t decist.


                                                                                                           11
                                                i. criticism: doesn’t allow confession evidence
             F. MPC: easier to prove, but some defenses are available
                       i. Intent: purpose only.
                      ii. Attempt is made out if D takes a
                              1. Substantial step: (act or omission):
                              2. in the course of conduct intended to culminate in a crime
                              3. conduct must be STRONGLY CORRORABORIATIVE of purpose
                     iii. Broadens the scope of liability.. restrains dangerous PERSONS not just ACTS
                              1. emphasis on what has been done not on what remains to be done
                              2. requires firmness of criminal purpose
                              3. D’s statements may be considered (unlike equivocality test)
             G. Special Problems
                       i. Substantive crimes of attempt: burglary etc. Courts split over whether you can be guilty
                          of attempt to attempt. Problem: tends to move bad act further back to mere preparation
                      ii. Solicitation: is it the last act of solicitation or the first step of the crime solicited?
                              1. Common law: Split (over guilt for the crime solicited)
                                      a. solicitation alone is enough to be guilty of the crime solicited. VS.
                                                i. focus on D
                                      b. solicitation requires an act by the hit man moving towards the crime
                                                i. focus on the acts of Hit man... some JD hold that you can never be
                                                    guilty of solicitation if the hit man doesn’t
                                      c. most JD now have a separate crime of solicitation and that is easier to
                                           prove.
                                      d. Policy/split: group crimes: less dangerous 2 wills vs. more b/c criminals
                                           work together
                                            Common law                                  MPC
Mens rea                                    Specific intent: knowledge and              Purpose only
                                            purpose required
actua reaus                                 tests to see if its “mere preparation” Substantial Step Strongly
                                            proximity, probable desistance,             corrorbative of criminal intent
                                            equivocality
Abandonment (affirmative defense) NOT ALLOWED,                                          Allowed if renunciation
                                                                                        (1) complete and (2) voluntary
Impossibility defense                       law excuses, fact does not                  abolished with 2 exceptions
                                                                                        (1) intrinsic impossibility (2) true
                                                                                        legal impossibility
Punishment                                  lower                                       the same as the actual crime
MPC application: caught coming through customs with lace
Thought it was english: not guilty of attempt: NO INTENT
Thinks its french but its english: INTENT not excused
thinks its legal to import french but its illegal: NO INTENT, but not LEGALITY makes guilty.. law must be
                                                                                                              constant
thinks its illegal to import french lace but there’s no such crime: True Legal Impossibility.




                                                                                                                          12
IV. Conspiracy
    A. its a group crime like accomplice, and an inchoate crime like attempt
    B. Disfavored Doctrine: Collateral consequences of invoking
             i. Vagueness / chameleon like: fits the circumstances
            ii. Venue
           iii. Hearsay exception: in furtherance of the crime: conspiracy to conceal.. ongoing forever..
           iv. Joint Trial: (birds of a feather)
            v. Enhanced punishment: common law doesn’t merge conspiracy, MPC does
           vi. liability for substantive crimes of all conspirators so long as in conspiracy. : must be
                foreseeable and in furtherance of the conspiracy.
    C. Actus Reaus: the bad act is merely agreement, and it can be inferred.. no actual crime required
             i. modern JD also require an overt act
            ii. “alvarez nodded his head and for this he will go to jail.
    D. Mens rea: the intent required for conspiracy
             i. MPC: purpose and knowledge: looks at mind of D
            ii. Most JD: must have purpose
           iii. Harsh JD: Knowledge is enough.. even if you don’t intent to further the crime.
           iv. Modern Trend: Knowing Suppliers LAURIA
                    1. Felonies (heinous crimes): only knowledge required
                    2. Misdemeanors: Specific intent requires (knowledge + intent)
                            a. How to prove intent to further the crime
                            b. Direct evidence: actually helping them
                            c. Indirect evidence: Stake in the venture:
                                    i. Price, Volume, Legality of use / customer base
                            d. policy: not efficient, chill society
    E. Scope of conspiracy: who is included: wheels and chains, will not be on exam
    F. Abandonment as a defense to conspiracy:
             i. Common law:
                    1. not to conspiracy,
                    2. but yes to substantive crimes: requires affirmative act
            ii. MPC:
                    1. conspiracy: must stop the crime,
                    2. Substantive crimes: must inform conspirators or call police.




                                                                                                        13
Accomplice Liability
  I.      Common law categories
          a. Bad
                   i. Principle in the 1st degree: actually commits the crime
                  ii. Principle in the 2nd degree: AIDS, Present (actual or constructive.. aid nearby)
                 iii. Accessory before the fact: Aids, + w prior agreement (don’t have to be present)
          b. Less bad:
                   i. Accessory after the fact: Aids knowing of crime, intent to help avoid capture
  II.     Modern Categories
          a. Accomplices
          b. Accessory after the fact
  III.    Inconsistent verdicts: traditionally not allowed, now allowed for all but After the fact.
  IV.     Intent: intent to assist in the commission of a crime, SPLIT over knowing supplier problem
  V.      Elements
          a. without agreement:
                   i. Intent to promote the crime: (split: some JD’s only require knowledge)
                  ii. Aid by action or omission of a legal duty
          b. With agreement: if you’re present you’re liable even if you don’t act
  VI.     Mens Rea:
          a. Purposely or knowingly: Intent to aid vs. intent that the crime should be committed
                   i. Wilson: (helped with burglary) no intent to permanently deprive
                  ii. Gladstone: (no drugs but draw a map),
                           1. D must embrace the purpose of the venture
                           2. Necessary nexus: link between D’s actions and crime: purchase yes, sale no
          b. Intended act, but risked result:
                   i. Regina v Anderson : not liable for unauthorized acts
  VII.    Actus Reus
          a. Unsuccessful attempts to Aid;
                   i. Before MPC: not criminal at common law
                  ii. After MPC: criminal in many states
          b. Tally: (judge stopped telegraph message): does not have to be but for causation (small chance)
                   i. no pre-concert required, enough to act with intent to help murder
                  ii. Pre-concert would be required if he didn’t actually act
  VIII.   Hicks Hypos: Hicks hears R is going to kill his old enemy C and so goes along to enjoy
          a. No act or intent to further crime and no legal duty to prevent
          b. ACT: Words of encouragement:, MENS REA: debatable: intent to help, or just afraid?
          c. Act: none (unless there was a prior agreement), Mens rea: mentally decides to help if necessary:
          d. Act: promise to help (some JD require overt act), Mens Rea Mental intent to help:
  IX.     Self Defense and Defense of another
          a. Elements: Use of deadly force allowed if (subjective and Objective)
                   i. perceive threat of deadly force or serious bodily harm
                  ii. threat is unlawful
                 iii. threat must be imminent: (right now, vs. inevitable)
          b. Imperfect Self defense: honest but unreasonable apprehension
                   i. Punishment: traditionally usually all or nothing
                  ii. Modern: most JD’s allow mitigation to manslaughter


                                                                                                            14
c. Defense of another: right to act is coterminous with the other’s right to act
d. How objective should the reasonable person standard be?
       i. GOETZ: reasonable to D, subjective (civil right perspective)
      ii. WANROW: reasonable “man” might bias use reasonable person (feminist)
     iii. MPC: ??
e. Immediacy:
       i. SCHROEDER: immediate vs. inevitable
      ii. JANKEY: abused child, waited.. not immediate
     iii. KELLEY: battered woman syndrome, may help justify/ subjectify
              1. Experts: must be relevant / admissible,
                      a. speaking on ideas too complex for lay person to understand,
                      b. must be a true expert from a field with state of the art knowledge,
                      c. can’t speak directly to the Question before the jury
f. Limitations on Self defense
       i. Common law: Retreat: Honor vs. Value of life
              1. Majority: Abbott: before using deadly force D must retreat if
                      a. at the time you decide to use deadly force
                      b. D knew (subjective) that he could retreat with COMPLETE SAFETY
              2. Most JD require or at least consider when assessing necessity
              3. No duty to retreat when on your own property
      ii. MPC: if you know you could retreat, or comply in complete safety then you must
              1. Initial Aggressor: if you provoke the conflict by stopping a P who is fleeing...
                  even if you’re being robbed... you can not use self defense.




                                                                                                    15

								
To top