Criminal Law Outline Fully Stated Rule of Criminal Liability A person is not guilty of an offense unless her conduct, which must include a voluntary act, and which must be accompanied by a culpable state of mind (the mens rea of the offense), is the actual and proximate cause of the social harm as proscribed by the offense. 1. Actus Reus There must be a voluntary actus reus for every crime Def.- physical or external portion of the crime - has no clear single accepted meaning Actus Reus contains 3 parts of a crime 1. A voluntary act or omission of a legal duty 2. That causes 3. Social Harm -the act is a physical movement (pull trigger, turn the key, etc.) -the term act excludes all mental processes 2 aspects of the tem “Act” 1. Not applied to the results of an individuals movements 2. The act must be voluntary Questionable voluntary acts: 1. Conduct that is not the product of your own volition 2. Reflexive or convulsive act 3. Act performed while unconscious or asleep i.e. “sleepwalking” not falling asleep @ the wheel MPC on Actus Reus -Provides that no person may be convicted of a crime in the absence of conduct that “includes a voluntary act or the omission to perform an act of which he is physically capable.” Possession is an act under the MPC. Omission -not every moral obligation to act creates a legal duty -subject to a very few exceptions people have no legal duty to help or rescue someone in need Legal Duty to act may arise in 1 of 5 circumstances: 1. By statute 2. By contract “lifeguard or nurse” 1
3. Relationship between parties (spouse or parent). 4. Where one has voluntarily assumed care of another and so secluded the other from others rendering aid. 5. Where your conduct created the peril MPC on Duty -if the law defining the offense provides for it, or if the duty to act is otherwise imposed by statute 2. Mens Rea 2 meanings 1. (broad) General immorality of motive, vicious will, or evil mind 2. (narrow) Particular mental state provided for in the definition of the defense 4 Common Law Mental states for crimes 1. Specific intent (qualify for other defenses not available for other kinds of crimes) 1. Solicitation 2. Conspiracy 3. Attempt 4. 1st degree murder (created by statute in US) 5. Assault (assault as an attempted battery) 6. Larceny 7. Embezzlement 8. Robbery 9. Burglary 10. Forgery ** Test Tip: If asked about “murder” then it is a malice crime, not a specific intent crime. “murder” is common law murder/2nd degree murder. Must signify murder in 1st degree to qualify for Specific Intent. 2. Malice – murder and arson 3. General intent – huge catch all category including rape and battery 4. Strict liability – no intent crimes **Test for strict liability- if the crime is in the administrative, regulation, or morality areas, and when you read the statute no adverbs like knowingly, intentionally, recklessly then it is strict liability. These crimes do not qualify for any defense that negates intention, because there needs to be no intent ** Test Tip: Stay far away from the argument that the victim consented. Never a good defense in US
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Transferred intent: Some courts have applied when one intends injury to a person with sufficient mens rea, and in an effort to accomplish that crime he inflicts harm upon someone else, he is guilty as if he had been accurate. MPC on levels of culpability Levels of culpability 1. Purpose or Intent 2. Knowledge 3. Recklessness 4. Negligence Purpose: AR -intended conduct -conscious object. AC -aware of circ. -hopes circ. exist -aware circ. exist -aware of risk -should be aware of risk Result -intended result -conscious object. -substantial certainty of result -aware of subst. and unjustifiable risk - should be aware of subst. and unjustifiable risk
Knowledge: -aware of conduct Recklessness: -knowledge of act Negligence: -knowledge of act
if there is no mens rea specified in a statute, the default is recklessness 3. Strict Liability A. Strict Liability crimes require no mens rea for one or more elements of the actus reus -Factors that support strict liability 1. If the statutory crime is not derived from the common law 2. If the legislative purpose would be undermined by a mens rea requirement 3. If the standard imposed by the statute is reasonable and would be expected of a reasonable person 4. If the penalty is small 5. A conviction would not severely defame the person
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B. Public Welfare Crimes: crimes that involve conduct that is wrong because it is prohibited. (Sale of liquor to minors, sale of impure drugs or food to the public, and traffic/motor vehicle violations) 1. Usually public welfare offenses are committed by a single person or few, but the results are harmful to many. -differ from traditional strict liability in severity of punishment containing conduct that is inherently wrong -courts will generally uphold SL regarding public welfare offenses -culpability of an offender may come in at the punishment stage, not at liability stage 4. Mistake (mistake is generally no excuse) A. Mistake of Fact B. Mistake of Law 1. Mistake of Fact- an actor is unaware or mistaken about a fact relevant to an element of the crime (taking another’s property thinking they had permission to take it) Mistake of Fact Defense Chart Mental State of Crime Specific Intent Malice and General Intent Strict Liability Application of Defense Any mistake reasonable Or unreasonable Reasonable mistakes only Never
** only use this defense when it negates the intent @ CL any mistake allowed under specific intent MPC on mistake of fact – ignorance or mistake is a defense if the mistake: 1. negates the mental culpability required to establish a material element of a crime 2. if the law provides that mistake may be a defense 3. Mistake of Law- ignorance or mistake of law does not negate the mens rea of an offense
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a. The law is supposed to be definite and knowable, so there is no “reasonable” mistake of the law b. No excuse reduces chances of fraudulent activity due to alleged mistake c. Utilitarian approach to liability-sacrificing the individual for the public good -Three exceptions to mistake of law are recognized: 1. Reasonable reliance 2. Fair Notice 3. Ignorance or mistake that negates mens rea MPC on Mistake of law- Does not recognize ignorance or mistake of law as a defense -Three exceptions to mistake of law are recognized by MPC: 1. Reasonable reliance – Constitutes a defense if: a. reliance on an erroneous official statement of the law b. statement of law is found in public and represented by an official body who is responsible for its interpretation c. the reliance is otherwise unreasonable 2. Fair Notice – constitutes a defense if: a. the offense is not known to the person b. the law was not published or otherwise reasonably made available to that person before they violated the law 3. Ignorance or mistake that negates mens reaa. MPC requires proof of some culpable state of mind, so if no mens rea as to a material element of the crime, defense is available b. statute may expressly provide mistake of law defense 4. Criminal Homicide -the killing of a human being by another human being (under CL death must occur 1 year and 1 day after the act). 1. Common Law – 2 types of homicide a. Murder: Killing of a human by another human with malice aforethought(two types of murder) 1. Murder 1: intentional killing with premeditation (Murder 1 created by statute) 2. Murder 2: intentional killing with out premeditation or intent to commit grievous bodily harm
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b. Manslaughter: Unlawful killing of a human being by another human being without malice aforethought -Common Law gives 3 types of manslaughter 1. Voluntary Manslaughter: intentional killing done in the heat of passion with adequate provocation with no premeditation ** Test Tip: Never attach the label voluntary manslaughter unless in the facts you can find some passion usually by some sort of fight. 2. Involuntary Manslaughter -Homicide committed in a criminally negligent manner: an unintentional killing during a lawful act committed in an unlawful manner 3. Misdemeanor Murder: an unintentional killing that occurs during a misdemeanor MPC on Homicide - three types of homicide 1. Murder: when an actor unjustly, inexcusably, and in the absence of mitigating circumstances, kills another a. purposeful or knowing b. recklessness with extreme indifference to human life (depraved heart) 2. Manslaughter: a. Reckless killing b. Killing with an extreme emotional disturbance 3. Negligent Homicide: a. negligence as mens rea standard 3. Defenses to Murder: Reduction of sentence a. Provocation or Sudden Heat of Passion (elements): 1. must have acted in heat of passion includes any violent, intense, high-wrought, fear, jealousy, wild desperation, or enthusiastic emotion 2. passion must have been result of adequate provocation -includes aggravated assault or battery, mutual combat, commission of a serious crime against a close relative of the D, illegal arrest, observation of a spouse committing adultery. -does not include a trivial battery, learning about but not observing adultery, observation of unfaithfulness of an unmarried person, and words no matter how insulting or offensive -measurement of provocation is a “reasonable person” 3. Actor must not have had a reasonable opportunity to cool off 4. Must be a causal link between passion, provocation and homicide -if you already decided to commit homicide, no defense for provocation 4. Felony Murder
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Common Law- a person is guilty of murder if they kill another person during the commission or attempted commission of any felony 1. Under the FM rule, if an actor commits an intentional felony, he may be held accountable for strict-liability murder Defenses for FM1. If the D has a defense for the underlying felony, then they have a defense for FM 2. The felony must be independent of the killing 3. Deaths must be foreseeable -owner of a burning building has a heart attack/ No FM 4. Deaths caused by fleeing from felony are FM -once D reaches a place of safety any subsequent deaths are not FM 5. Red Line View- D is not liable for the death of a co-felon as a result of resistance by the victim or police (victim or police shoot and kill cofelon, No FM) -victim or police shoot and miss co-felon and hit innocent, FM applies 5. Causation -the actor’s voluntary act or omission must result in (or cause) the social harm. 1. Causation is an essential element of criminal liability 2. But For causation – but for the D’s actions the harm would not have occurred when it did 3. The cause in fact, also called actual cause or substantial factor 4. Proximate cause or legal cause a) No black letter rules b) Asks what events should be held liable for harm c) Exists for and is used when there are intervening causes (Common Law) d) Policy – to find a result for victim 5. Intervening (Responsive) v. Supervening (Coincidental) cause a. I/R is foreseeable and contributes to harm – does not relieve defendant of criminal liability b. S/C is not foreseeable (abnormal, strange) and breaks causation chain i.e. relieves the D of liability 6. Intended Consequences a. always the proximate cause of a consequence e.g., mother intends to poison child by telling the nanny to give poison to the child. Someone besides nanny administers; mother is the proximate cause 7. Exceptions to causes 7
a. Apparent safety doctrine- When V reaches a position of apparent safety, the D’s force is no longer involved in the result. b. Free, deliberate and informed human intervention – if a voluntary human act is discovered, original wrongdoer is relieved of liability. E.g., A stabs B, B goes to hospital, Nurse believes B will die and “pulls the plug”, A is not responsible for B’s death c. Concurrent elements – at the time the act occurs, there must be intent to cause harm 8. MPC on Causation a. But for test is stressed unless cause was to remote or tenuous b. Remaining questions resolved by determining the defendant’s culpability. 6. Attempt -a criminal attempt occurs when a person, with the intent to commit an offense, performs any actthat constitutes a substantial step toward the commission of that offense. A “substantial step” requires reaching the 5th step (e) below: 1. 6 factors when intending to commit a crime a. actor conceives idea of committing the crime b. Evaluates the idea in order to determine whether to proceed c. Fully forms the intention to go forward __________American Law Does Not Punish Top Three______ d. Prepares to commit the crime (i.e. obtaining instruments) e. Commences commission of the offense f. Completes the offense 2. Persons will not be punished for thoughts alone 3. Anything short of completing the offense is considered incomplete conduct i.e., attempt, solicitation and conspiracy
4. Criminal attempts come in two varieties a. Complete but imperfect -performs all of the acts she wanted to but does not attain her criminal goal -i.e., doing all of the acts to commit a murder but missing the target b. Incomplete -the crime is wanted to be carried out but is interrupted by a police officer, or any intervening act 5. Punishment of attempts 8
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a. At common law an attempt was considered a misdemeanor, even when the attempted offense was a felony b. Currently, an attempt to commit a felony is considered a felony, but usually a lesser offense than the actual crime attempted Relationship of the attempt and the attempted offense a. According to a few statutes and court opinions, the attempt to commit a crime and committing a crime are two completely separate things. Therefore each crime is mutually exclusive and can never be committed together. b. Most jurisdictions see that failure to commit a certain crime is not an essential element of the criminal attempt. Therefore if someone is being tried for robbery, the jury may return a verdict of attempted robbery, along with a verdict of actual robbery. In these jurisdictions, proof of the commission of a crime proves the attempt was committed. Attempt and Assault a. Sometimes problems arise because some crimes are defined as an attempt. Like an assault is defined as common law as an attempted battery. To remedy this most jurisdictions have adopted the tort law definition of assault to mean imminent apprehension. b. What about an attempted assault? This could mean an attempt to attempt battery. Some jurisdictions have upheld the idea others have not. Subjectivism and Objectivism a. many attempts are punished merely on the mens rea to commit the desired act and not because of any actual harm committed. However, there is a social harm that is being alleviated by criminalizing the attempt of a crime. It is not good for society to allow people to wait around and kill, only to be thwarted b/c the gun was not loaded or malfunctioned. b. Subjectivists believe that the mens rea of an attempter of crimes should be what the law uses to punish, not the actual harm done to society c. Objectivists believe that only the actions should be used to discern the criminal liability of an individual Punishment of an attempt a. Utilitarian – believe punishment for an attempt should be mitigated to allow for repentance and remorse and also give the actor an incentive to stop before completing the attempt b. Retributive- Most believe a failed attempt to commit a crime should be punished just as severely as the completed crime
Mens Rea of an Attempt 1. An attempt requires 2 specific intents 9
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a. The actor must intentionally commit the acts that constitute the actus reus of an attempt, and must intentionally perform acts that bring her in proximity of performing the desired offense. b. The acts must be performed with the specific intention of committing the substantive (desired) crime. Result Crimes a. An offense that is defined in terms of specific results is a result crime. Example would be murder and the result would be the death of another. b. A person is usually not guilty of an attempt of a result crime unless the actor actions in furtherance of the specific result, are done with the specific purpose of causing that result. Therefore there is a specific intent requirement that needs to be proven by the prosecution in order to get a conviction. This sometimes requires the proving of a higher degree of culpability than is required for a conviction of the target offense. Argument for maintaining the intent requirement a. There is a big difference in dangerousness between someone who coldly calculates to commit an act, and is only thwarted by bad luck, and someone who either recklessly or negligently acts to commit the same act. Attempted Felony Murder a. Almost all states have held that this is NOT a recognizable offense. This is consistent with the idea that an attempt requires a specific intent to commit a particular crime. Some jurisdictions do allow prosecution of this crime. Attempted Manslaughter a. It is logical that a person can be convicted of attempted voluntary manslaughter b/c this is a crime that is the intentional killing of another during the heat of passion or provocation. b. It is illogical that a person could be convicted of attempted involuntary manslaughter b/c the mens rea required is only criminal negligence and not an intent to kill
Actus Reus of Attempt 1. Preparation v. Perpetration - It is difficult to draw the line and courts are split as to what should be done a. On one hand, if courts allow police to intervene very early. persons who may not go through with the crime are unduly and needlessly arrested. On the other hand, some courts believe that once the acts of preparation, when coupled with intent, have reached a point that they pose a danger to society, the law should intervene. 10
b. 3 factors considered when courts draw the line between the two 1. does the act come close to causing tangible real harm so that requiring police intervention? 2. How serious is the threat and harm? 3. Evidence of the actor’s mens rea c. Generally the tests to resolve this issue fall into two categories 1. Those that focus on how much needs to be done for completion 2. Those that focus on how much has already been done. d. Test for Attempt 1. Last act test: an attempted murder doesn’t occur until D pulls the trigger of the gun 2. Physical Proximity test: Must be physically able to complete the crime in the near future or immediately 3. Dangerous proximity test: When the chance of success is very great or the actor is in dangerous proximity of completion 4. Indispensable element test: requires control of indispensable feature of the plan 5. Probable distance test: Centers on how far the D has already completed and how likely they are to complete 6. Unequivocality Test (or Res Ipsa Loquitor) : When D actions alone show criminal attempt 7. Substantial Step Test (MPC): Conduct that strongly corroborates the D’s criminal attempt, and broadens the scope of attempt liability e. Factual Impossibility: a person’s intended end constitutes a crime, but fails to complete the offense b/c of an attendant circumstance unknown to her or beyond her control 1. Usually not a defense to attempt liability f. Legal Impossibility; (Usually defense to attempt liability) 1. Pure legal impossibility: when a person commits a lawful act with a guilty conscious 2. Hybrid Legal Impossibility: when a person’s goal is illegal, but commission of the offense is impossible b/c of a mistaken attendant circ. relevant to her conduct. (Most states have abolished the defense to this impossibility) 2. Abandonment of the Attempt a. Many courts refuse to accept the defense of abandonment b. Defense is only allowed if the actor voluntarily and completely renounces her criminal purpose. This defense: 1. Encourages desistance by the offender 2. By abandonment, the person shows less dangerous character MPC on Attempt: 11
Criminal Attempt contains two elements 1. Purpose to commit the substantive offense (mens rea) a. Generally not liable if it was not the purpose or conduct with 2 exceptions 1. Still guilty if a person believed that the result will occur even if it is not her conscious object to cause it 2. In regards to the attendant circumstance, purpose or intent is not required, an actor may be convicted of an attempt if the actor acted reckless in regards to the attendant circumstance if only recklessness is required for conviction of the substantive offense. 2. Conduct constituting a substantial step of completing the offense (actus reus) a. The MPC focuses on what the actor has already done when determining culpability for an attempt. The code states that a “substantial step” must have been taken by the actor planned to culminate the commission of the crime. Conduct must strongly corroborate the D’s crim. Intent. This does not require that the D’s conduct by itself show criminality. b. If a jury finds that the actions constituted a substantial step the attempt conviction may be overturned on the grounds that it was not a substantial step. Attempting to Aid 1. Although attempting to aid is not an offense under common law, the MPC states a person may be convicted of a criminal attempt (even if a crime was not attempted or committed) if: a. Conduct was attempted to aid another in committing a crime; and b. The person’s conduct would have made them an accomplice if the offense had been committed Defenses 1. Hybrid Legal Impossibility – In the MPC this is not a defense. The thinking is that a person who intends a crime, but b/c of a circ. that the person is un aware of, fails to commit the crime, is still a dangerous person 2. The code still allows for a pure legal impossibility as a defense (think it is illegal but it is legal) 3. Abandonment – A person is not guilty of an attempt if they: a. abandon their effort to commit the crime or prevent it from being committed; and b. manifest a complete and voluntary renunciation of their criminal purpose 7. Accomplice Liability A. Accomplice is defined as a secondary party (S) who intentionally assists the primary party (P) to engage in conduct that constitutes a crime. “Assist” can mean aiding, abetting, encouraging, soliciting, advising, or procuring the commission of the offense. 12
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1. S’s liability derives from association with P’s crime. 2. Generally, S may be convicted of any crime that he intentionally assists P. 2 theories 1. A person may be held accountable for the conduct of another person if he assists the other in committing the offense. This is called accomplice liability. 2. A person may be held accountable for the conduct of a co-conspirator who commits a crime in furtherance of their agreement. In this case, the mere existence of a conspiracy is enough to justify prosecution. CL – terminology 1. Principle in the 1st degree – has required mens rea and commits the offense by use of innocent instrumentality (non-human agent, or a non-culpable human agent). -Innocent agent theory- if an accomplice uses an innocent agent as the principle, the accomplice will become the principle 2. Principle in the 2nd degree- guilty of the offense by intentionally assisting P 3. Accessory before the fact – like principle in the 2nd degree, but is not actually present when the act is committed 4. Accessory after the fact – One who intentionally assists a known felon to avoid arrest, trial or conviction Principles v. Accessories 1. Degree of guilt – CL rule said the accessory could not be convicted of a more serious offense than the principle a. Exception of homicide where the accessory could be convicted of murder while the principle could be found guilty of a lesser offense like voluntary manslaughter Accomplice Liability: Assistance 1. 3 basic types of assistance a. Assistance by physical conduct b. Assistance by psychological influence c. Assistance by omission, if there is a duty to act -the failure to stop an offense may justify a finding of an omission (parent knowingly allows someone to kill their child). 2. Amount of assistance required a. Any aid , no matter how trivial, suffices b. S is accountable for P’s conduct, even if assistance was causally unnecessary for the commission of the crime c. It does not matter if the accomplice meets the causation requirement, as long as P’s conduct does Accomplice liability mens rea 1. Can be broken into 2 intents 13
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a. the intent to assist the primary party b. the intent that the party commit the offense Significant mens rea issues a. Feigning accomplice – when an accomplice assists P in order to have them caught – such as a policeman – in this case the accomplice does not have both attempts b. Purpose or knowledge – knowledge that something you have will be used for criminal purposes is sufficient for accomplice liability (renting an apartment for a prostitution ring) c. Liability for crimes of recklessness and negligence – it is impossible for someone to be an accomplice to a crime that requires only negligence and recklessness b/c there must be specific intent for an accomplice to be liable for another’s actions d. Attendant Circ. – Accomplice should be held accountable if his mens rea would be sufficient to convict him as a principle e. Natural and probable consequences doctrine – Accomplice is responsible not only for the acts he intended to assist with, but also for any reasonably foreseeable consequences -to apply you must ask 4 ?’s: 1. Did P commit crime A? 2. If yes, did S intentionally assist in the commission of crime A? 3. If yes, did P commit any other crimes? 4. If yes, were these crimes although not contemplated or desired by S, reasonably foreseeable consequences of crime A/ Liability of a secondary party in relation to a primary party a. CL – S could not be convicted unless P was convicted with the exception of criminal homicide. Nearly all states have done away with this rule Liability of S when P is acquitted a. P as an innocent instrumentality – such as P acting under duress, S will become the primary party and P will be acquitted b. Justification defense – If P is justified in committing an offense, S will be justified in assisting P c. Excuse defense – (Insanity, etc.) an excuse relieving P of prosecution does not relieve S of prosecution d. Acquittal by lack of mens rea – The fact that P is found innocent does not mean the offense did not occur, and if S assisted in committing the offense he is not barred from being prosecuted just b/c P was found innocent (encouraging to rape wife case) Limits to accomplice liability
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a. A person may not be prosecuted for assisting someone in a crime if they are a member of the class of persons which the criminal statute was designed to protect (i.e. an underage girl can not be prosecuted for assisting in her own statutory rape) b. Abandonment – will relieve accomplice of liability, but the accomplice must communicate withdrawal to the principle, and make bona fide efforts to neutralize the effects of his prior assistance 6. Conspiratorial Liability (Pinkerton Doctrine) a. Must distinguish between accomplice liability and a conspiratorial relationship. In most circumstances an accomplice is also a conspirator with the primary party, but one can be a conspirator w/out being an accomplice b. Definition: Party to a conspiracy is responsible for any criminal act committed by an associate if it 1. falls within the scope of the conspiracy 2. a foreseeable consequence of the unlawful agreement c. In most cases, accomplice liability and conspiracy overlap completely d. Under accomplice liability a person is only responsible for the natural and probable consequences in which that person ahs assisted 7. MPC on Accomplice Liabilitya. Forms of Liability: 1. Accountability through an innocent instrumentality person is legally accountable for conduct of an innocent or irresponsible person if he 1) has the mental state sufficient for the commission of the offense 2) causes the innocent person to engage in the criminal conduct 2. Misc. accountability -may be accountable for another’s conduct if a statute specifically provides for that assistance 3. Accomplice liability -person is legally accountable for the conduct of another person if he is an accomplice of the other in the commission of the criminal offense b. MPC rejects Pinkerton doctrine; liability of an accomplice must be based on the code’s definitions of accountability c. Actus Reus of Accomplice (MPC) 1. A person is an accomplice if he assists with the purpose of promoting or facilitating the commission of the offense 2. Liability of crimes for reckless and negligence
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-when causing a particular result is an element of a crime, a person is an accomplice in the commission of the offense if: a. he was an accomplice in the conduct that caused the result b. acted with the culpability (if any) regarding the result that is sufficient for commission of the offense c. ***MPC does allow prosecution for accomplice liability. This provision has special significance in divisions that recognize Felony Murder and misdemeanor manslaughter – an accomplice to a felony or misdemeanor may be held liable for any deaths that occur. 3. Natural and probable consequences rule a. MPC does not recognize this rule, and liability of an accomplice does not extend beyond the purposes that he shares e. Liability of the accomplice in relation to the perpetrator 1. Accomplice can be convicted of a crime upon proof of its commission by another regardless if the other person is convicted, acquitted, or not prosecuted. Also, an accomplice can be convicted of a different offense or a different degree of defense than is the primary party 2. A person who is legally incapable of committing a crime can still be held liable for the crime if it is committed by a person and he is the accomplice f. Limits to accomplice liability -no liability for accomplice if 1. S may not be convicted as an accomplice if he is the victim of the crime 2. S is not an accomplice of P’s if S’s conduct is inevitably incident to the commission of the offense 3. Defense of abandonment if a. neutralizes assistance b. gives timely warning to police of offense c. or in some other manner tries to prevent the commission of the crime ***Test Tip: Never give Accomplice Liability unless they are active in the crime, not just present at the scene. -Solicitation- Asking someone to commit a crime. The crime has been committed when person asks. 8. Conspiracy A. Definitions 1. Common Law 16
-a conspiracy is an agreement between two or more persons to commit a criminal act or a series of criminal acts, or to accomplish a legal act by unlawful means 2. MPC - a person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he: a. agrees with such person or persons that they will engage in conduct that constitutes such crime or an attempt or solicitation to commit such crime b. agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime B. Punishing conspiracies: Why? 1. Conspiracies as an inchoate offense (a step toward the commission of another crime): Preventative law enforcement. a. Conspiracy allows police intervention at a much earlier point than is permitted under attempt law b. Even if the act is wholly prepatory to the commission of the target offense 2. Special dangers of group criminality a. Advocates say that two people united to commit a crime are more dangerous than one or both of them separately planning to commit the same offense b. Purported dangers 1. parties to a conspiracy are less likely to abandon their criminal plans 2. collectivism promotes efficiency through division of labor 3. attainment of more elaborate crimes are possible 4. combination in crime makes more likely the commission of crimes unrelated to the original purpose for which the group was formed C. Punishing conspiracies: How much? 1. Common law – non penal code statutes a. CL made a conspiracy to commit a felony or a misdemeanor – chargeable as a misdemeanor. Some statutes continue to follow this, others grade the sanctions in accordance with the planned crime. 2. MPC – a. The MPC grades a conspiracy to commit any crime, other than a felony of the first degree, at the same level as the
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object of the conspiracy. If there are multiple objects, it is graded on the most serious of those objects 3. Punishment when the target offense is committed a. Common Law 1. The crime of conspiracy does not merge into the attempted or completed offense that was theobject of the conspiracy. b. MPC – 1. Provides that a person may not be convicted for both conspiracy and the object of the conspiracy or an attempt to commit the target offense, unless the prosecution proves that the conspiracy involved the commission of additional offenses not yet committed or attempted D. Conspiracy: The agreement 1. The heart of conspiracy is the agreement to commit an unlawful act. However, an agreement can exist although not all of the parties to it have knowledge of every detail of the arrangement, as long as each party is aware of its essential nature 2. A conspiracy may be established directly or through completely circumstantial evidence 3. A conspiracy may be inferred from a development and a collection of circumstances. That is a crime committed as the result of a prior agreement is apt to look choreographed 4. Distinguishing the agreement from the group that agrees a. Conspiracy is the agreement made, not the actual group 1. This may lead to the wrongful affirmation of conspiracy convictions 5. Object of the agreement – under the common law the object of the conspiracy to do “either an unlawful act, or a lawful act by criminal or unlawful means”. It will be enough if the acts contemplated are corrupt, dishonest, fraudulent, or immoral. a. It is possible to convict 2 people of a conspiracy that would not have been illegal if they would have acted alone ( Ex. Conspiring to commit a civil wrong). 6. Overt Act a. A CL conspiracy is complete once the agreement has been made and no act in furtherance is required. However, many states require proof of some overt act prior to prosecution for conspiracy. Trivial acts are sufficient, and it does not need to be illegal, i.e. phone call, letter etc. 7. MPC18
The MPC also centralizes the conspiracy around the agreement. Money types of agreements are also considered conspiracy 1. Agreeing to commit an offense 2. Agreeing to attempt to commit an offense 3. Agreeing to solicit another to commit an offense 4. Agreeing to aid another person in the planning or commission of an offense b. Object of the agreement – The MPC requires the object of the agreement to be illegal c. Overt Act – For misdemeanors and Felony 3rd an overt act is required for conviction. For felony 1st and 2nd no overt act is required E. Conspiracy: Mens Rea 1. CL requires that 2 or more persons INTEND to agree and INTEND that the object of their agreement be achieved a. It follows that culpability for conspiracy may be higher than that required for conviction of the object of the agreement 2. Special Issues a. Purpose v. Knowledge: The meaning of intent. Is intent proven by either knowledge or purpose? It seems to be dependant on the circ. And both courts and theories are split on what should suffice. b. Mens Rea regarding attendant circumstances – According to a SC decision, if the substantive offense requires no culpable state of mind than the attendant circ. For conspiracy requires none. This remains an open question, on a state by state basis, whether the offense of conspiracy may require a higher level of culpability regarding attendant circumstance than is embodied in the underlying offense. 3. Corrupt motive doctrine – used in some jurisdictions – states that in addition to the usual mens rea requirements of conspiracy, the parties to a conspiracy must also have a corrupt or wrongful motive for their actions. This is not recognized by the MPC. 4. MPC – a. A person is not guilty of conspiracy under the code unless the conspiratorial agreement was made with the purpose of promoting or facilitating the commission of the substantive offense.
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The code does not determine what culpability, if any, regarding the attendant circ. Of a substantive offense is required to convict for the offense of conspiracy F. Plurality requirement 1. CL – unless 2 or more form an agreement no one does. The prosecution must prove at least 2 people made an agreement with the requisite mens rea. There can be no CL conspiracy if 1 or 2 parties to an agreement lacks the specific intent to commit the substantive offense. No conspiracy if one is an undercover agent. 2. MPC – Uses unilateral approach focusing not on the conspiracy as a whole but at the individual’s own participation and actions in the conspiracy. No requirement on how many ( as long as one agrees with the other). G. Parties in a conspiracy 1. Often confusion of whether there is a single conspiracy with many defendants or many conspiracies involving fewer defendants. This needs to be determined for: a. Liability for the conspiracy -need to know how many involved for prosecution b. Liability for substantive offenses -a person in a conspiracy is guilty for every offense committed by every other conspirator in furtherance of the crime. c. Use of hearsay evidence -Hearsay is generally unacceptable at trial, with one of it’s two exceptions being a statement made by a conspirator while participating in the conspiracy may be allowed as evidence against other conspirators. d. Joint trial -if all defendants are tried together, it is more efficient and there is less chance for a barely culpable defendant to separate himself from the rest of the defendants e. Overt act requirement -in some jurisdictions an act by one conspirator in furtherance of the crime may be used against all other conspirators f. Venue -trial for conspiracy may be held in any jurisdiction where the crime was committed. This has advantages to both prosecution and defense 20
b.
H. Objectives of conspiracy A. Common Law approach 1. When two conspirators plan to violate more than one statute at more than one time, this makes more than one conspiracy. The initial meeting and agreeing is treated as implicitly incorporating later objectives B. MPC – 1. Conspirators are guilty of only one conspiracy if the multiple objectives are: a. part of the same agreement b. part of a continual conspiratorial relationship 2. The conspirators must have a single and continuous association for criminal purposes I. Defenses to Conspiracy Liability 1. Impossibility – where the crime cannot actually be committed (i.e., perform abortion on a woman who is not actually pregnant) a. Common Law – does give a defense in some jurisdictions who separate by allowing defense to only legal impossibility defense- generally not a defense given b. MPC – does not recognize impossibility defense 2. Abandonment a. Common law – the crime of conspiracy is complete the moment the agreement is formed or once an overt act is committed. Once the act is completed , abandonment is not a defense. The reasoning is the same with attempts. Abandonment may get a conspirator out of subsequent crimes committed in furtherance of the conspiracy. The abandoning party is usually required to communicate his withdrawal to each of the fellow co-conspirators b. MPC – Provides an affirmative defense to the crime of conspiracy if the conspirator renounces his criminal purpose and thwarts the success of the conspiracy. Must be complete and voluntary renunciation of his criminal intent 3. Wharton’s Rule – CL Rule a. When a crime requires a voluntary participation by at least two people in order to commit the crime, then the parties can’t be prosecuted for a conspiracy. b. Examples are adultery, bigamy and incest, dueling, etc. c. Does not bar prosecution for: possession of controlled substances with the intent to deliver, batering, exchanging, or offering an illegal narcotic to another. d. Exceptions 21
1. 3rd party exceptions – if more than the required amount of people needed to commit the crime agree to commit it, Wharton’s rule does not apply 2. If the 2 person’s involved in the conspiracy are not the 2 people that commit the substantive offense, Wharton’s rule does not apply e. MPC – does not recognize Wharton’s rule 4. Legislative exception rule a. Common Law – a person cannot be prosecuted for a conspiracy when the conviction would frustrate the legislative purpose. 1. This rule can result in an abnormality when it is applied with the plurality doctrine b. MPC - A person may not be prosecuted for a conspiracy to commit a crime if she cannot be prosecuted for the consummate substantive crime 1. Under the law defining the crime; or 2. as an accomplice in its commission 9. Exculpation and Excuses A. Self Defense – Every State recognizes self defense as a justification 1. A person who is not an aggressor is justified in using force upon another if he reasonably believes that such force is necessary to protect himself from immanent use of unlawful force by another. However, deadly force is only justified when the aggressor is using unlawful deadly force. a. Elements1. Necessity – force can only be used when necessary and only to the necessary extent 2. Proportionality – force must be reasonable to the harm threatened 3. Reasonable belief rule – Person must have reasonable grounds to believe force is necessary, even if it later proves to be false. No valid self defense claim if the force is deemed unreasonable. 4. Deadly force is force that will cause death or serious bodily harm 2. An aggressor has no right to claim self defense a. An initial aggressor can reclaim the right to self defense. It will matter who was the aggressor at the time force was used for defense b. Deadly v. Non-deadly aggressors 1. Deadly aggressor is a person whose acts can be reasonably calculated to produce fatal consequences 22
2. Non-deadly aggressors acts will not produce fatal results 3. The issue of retreat- self defense is measured against necessity a. The majority rule is the no retreat rule and is justified by: 1. It is the manly reaction – the law should not denounce the behavior of a man in a similar situation 2. Right should never give way to wrong 3. A retreat rule would have a counter utilitarian effect – you might be killed while fleeing b. A minority of states do require retreat when being threatened with deadly force if the victim is aware that they can retreat safely c. Castle exception – one is not required to retreat in their own home or anyone else’s home. ***Also MPC view 4. The nature of the threat a. Immanent, unlawful, deadly force 1. Imminent force – force is imminent if it will occur immediately, but strict applications of the immediacy rule may result in unfairness 2. Unlawful force – a person may not use self defense against lawful force unless it excessive or unjustified, thus making it unlawful 3. Imperfect self defense – Under CL if any of the elements of self defense is missing self defense is wholly unavailable (unreasonable SD) but some states have recognized the imperfect defense and in the case of deadly force have lessened the crime from murder to manslaughter. There are two versions of the imperfect self defense: a. A non-deadly aggressor who is the victim of a deadly response must retreat to any known place of complete safety before using deadly force b. A person who kills another because he unreasonably believes the circumstances is guilty of manslaughter instead of murder 5. Self defense: Special Issues a. The reasonable belief standard – The right of self defense is not based on either wholly objective or subjective reality, but instead a compromise of both. A person may defend himself if, and to the extent that, a reasonable person would believe it to be appropriate under the circumstances
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1. Some courts favor virtual subjectivation of the standard. These jurisdictions believe the accused’s actions should be viewed from the standpoint of the accused with the same thoughts and memories. However, most courts have rejected this view. b. The law – The law provides that, in determining whether the defendants self protective acts were reasonable, the jury should hold the accused to the standard of a reasonable person in the actors situation.” This is a changing field in the law. 6. Battered women syndrome a. Battered woman cases may be divides into 3 categories 1. Confrontational homicides – battered woman kills her partner during a battering incident 2. Battered woman kills her abuser while he is asleep. Commonly raises two inter-related issues: a. Whether the defense was raised to show reasonable and subjective reasons that the killing was necessary b. Whether the defendant is entitled to a jury instruction of self-defense, despite no proof of an imminent violent act by the abuser 3. Battered woman hires a hit man to kill the abuser b. Jury instructions on self defense 1. If credible evidence is presented a self-defense jury instruction will be given a. In confrontational battered woman cases the self defense instruction is almost always given. Courts are divided among the sleeping abuser. Courts will refuse SD instruction in a 3rd party hit man case c. Evidentiary issues 1. Prior abuse by the abuser – the courts are beginning to allow more testimony to be introduced concerning the actions of the decedent, to support the SD claims of the defendant 2. Expert testimony – this evidence enhances the defendant’s credibility. In most states expert testimony is inadmissible unless 3 conditions are satisfied a. The subject matter is beyond the understanding of the average person
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b. The witness has extensive understanding, skill, knowledge and experience in the field they are testifying about an will help the jury find the truth c. The state of the specific field allows a reasonable opinion to be asserted by an expert d. Women who kill their partners while sleeping will have a very difficult time proving self defense in jurisdictions that strictly enforce the immediacy requirement 7. Risk to innocent bystanders a. May a person who is justified through self defense, who shoots at his attacker and misses striking an innocent bystander, claim the self defense right in order to avoid punishment for striking the innocent bystander? 1. In most cases the courts will employ a transferred justification doctrine that is similar to the transferred intent rule 8. Resisting unlawful arrest b. The CL rule is that a person may use as much force as is reasonably necessary, short of deadly force, to resist an illegal arrest 1. Courts are split when deciding when to mitigate a crime due to unlawful arrest. Does the arrestee need to know it is an unlawful arrest, or is he protected regardless of knowledge? Courts are split. 2. Today the ability to resist excessive force arrests is not disturbed, however a few states do not allow the resistance of purely technical unlawful arrests not meeting the excessive force standard 9. MPC a. Permissible use of force – a person is permitted to use force on another when it is immediately necessary to protect himself against someone who is using unlawful force. It is different from the CL in two ways: 1. Written in terms of the actor’s subjective belief in the need to use force, however the code reincorporates a reasonableness standard through other parts of the code. This also includes police officers. 2. The code substitutes “immediately necessary on the present occasion” in place of immanency requirement b. Impermissible use of force – A person may not use force to resist arrest that he knows is being made by a police officer, even if it is unlawful. However, it does permit the use of 25
force if the arrestee believes the officer will use excessive force to complete the arrest c. Deadly force – Follows the CL definition but adds that one who acts with the purpose of causing death or serious injury, although such an outcome is highly unlikely, falls within the codes of definition of deadly force. Instruments causing deadly force are not permissible (spring guns). 1. Permissible use – Deadly force is justified when it is immediately necessary to protect himself on the present occasion from: a. Death b. Serious bodily injury c. Forcible rape d. Kidnapping –depending on how it is defined under state law 3. Impermissible use a. Deadly force by aggressors – the code prohibits the use of deadly force by a person who provoked the use of deadly force against himself in the same encounter b. Deadly force may not be used against an aggressor if he knows it can be avoided by retreating – however, in addition to others, an exception is made if the retreat is required from his home or place of work. However it could be required 1.If the actor was the initial aggressor, and wishes to regain his right of self protection 2.or even if he is not the aggressor if he is attacked by a co-worker in his place of work or at home by another co-habitant d. Mistake of fact claims and MPC justification defenses 1.The MPC follows a minority of jurisdictions and allows an imperfect defense claim, it does so by a 2 step process: a. Evaluates the defendants subjective belief b. Evaluates whether the defendant was reckless or negligent to the circumstances, if yes, there is no justification defense available for an offense for which recklessness or negligence suffices e. Justification defenses and risks to innocent bystanders 1. If a person acts recklessly or negligently in defending himself against an aggressor, the justification defense is not available if an innocent bystander is injured. However, it is difficult to obtain a conviction b/c the court must weigh the saving of one’s own life with the safety of those around him. 26
10. Necessity A. Definitions 1. Choice of evils or the lesser evil defense. Harm caused by the crime is less than the harm that would be caused by not committing the crime. 2. Necessity is a justification defense 3. Necessity arises when an actor encounters a dilemma and must choose between violating a relatively minor offense, or suffering (allowing others to suffer) substantial harm to their person or property B. Common Law 1. One may use necessity if the following 6 conditions are met a. the actor must be faced with clear and imminent danger b. the actor must expect, as a reasonable person, that his action will be effective in abating the danger c. there must be no safe legal alternative d. harm must be less serious than the harm attempting to avoid e. lawmakers must not have anticipated the choice of evils and determined the balance to be struck between the competing values in a manner in conflict with the defendant’s choice f. defendant must come into the dilemma with clean hands 2. 3 potential limitations for the application of the necessity defense a. some states limit the defense to emergencies created by natural disasters b. necessity defense may not apply in homicide cases c. some states limit protection to persons and property under the defense 3. Necessity as a defense to homicide a. may not kill one to save several even if it may seem reasonable for the better of the whole community (cannibals) C. MPC 1. Recognizes choice of evils defense, but limited by: a. a belief that the conduct is necessary to avoid harm to himself or another b. the harm to be avoided by his conduct is greater than the law violated by avoiding the harm c. No legislative intent to exclude the conduct plainly exists 2. Decision of lesser evils is left up to the jury 3. MPC defense is broader than CL approach (no immanency requirement, does not automatically lose the defense if they were at fault)
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4. All forms of necessity qualify (natural disaster, maybe used in homicide, cannibalism necessity defense would be able to go to the jury under the MPC) 11. Duress A. Common Law Elements of the defense 1. another person threatened to kill or grievously injure the actor or a third party 2. the actor reasonably believed that the threat was genuine 3. the threat was “present, imminent, and impending” at the time of the criminal act 4. there was no reasonable escape form the threat except through compliance with the demands of the coercer 5. the actor was not at fault in exposing themselves to the threat *** These elements must be met in order to succumb to the coercer, otherwise you must resist B. Duress does not apply unless the coercer is a human being. If not a human i.e. another source, then a justification defense must be used. C. Defense of duress is an excuse D. Duress is different from necessity 1. not all duress situations include choice of evils E. Duress as a defense to homicide 1. Generally no defense of duress is given for an intentional killing 2. Some states recognize an imperfect duress defense, which may reduce the sentence F. Escape from intolerable prison conditions 1. Occasionally a prisoner seeks to avoid harsh prison conditions by escaping confinement 2. Few courts have agreed to recognize the defense of duress in lieu of a prison escape for the simple fact that they do not want to encourage the behavior 3. Courts frequently place special limitations on the use of the defense, the main provision that the prisoners must make a bona fide effort to surrender as soon as they reach safety G. B/C battered women situations usually occur without the immediacy threat, and there is an opportunity to escape, the use of a duress defense is nearly impossible. Courts may want to consider recognizing the defense for 2 reasons 1. Use of duress as an excuse – the woman’s prior experiences are at least significant to the duress case 2. There is a catch 22 involved in using the battered woman syndrome testimony. She wants to state she id suffering from a psychologically paralyzing illness, but wanting justification for an act. By using
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duress the woman can use her learned helplessness to associate to the duress claim. H. MPC 1. The general rule under the code is that duress is an affirmative defense to unlawful conduct by the defendant if: a. She was compelled to commit the offense by the use, or threatened use, of unlawful force by the coercer upon her or another person b. And a person of reasonable firmness in her situation would have been unable to resist the coercion. Also MO statute, no necessary pre-conditions 2. Duress is no defense to crimes of recklessness and only a partial defense to crimes of negligence. 3. The code is broader than the CL b/c: a. No deadly force or immanency required b. The defense is one of general applicability so it may be used in murder prosecutions c. No requirement that the victim be the defendant or the defendant’s family 4. Escape from intolerable prison conditions- The code allows the duress defense to apply to this situation as long as it is justified under the necessity provision of the choice of evil. 5. There is no defense resulting from situational duress, which is a situation based on compelling natural circumstances. However brainwashing may be allowed to argue a defense of duress. 6. Battered woman syndrome- Duress may be used as a defense because: a. There is no immanency requirement b. Like the brainwashing cases, she may be able to excuse her conduct because of prior abuse 8. Leaves the consideration of the act of subjective weakness to the discretion of the sentencing judge. 12. Intoxication A. Definition – It is a disturbance of mental or physical capacities resulting from the introduction of any substance into the body B. CL – rarely allows an intoxication defense C. Intoxication cases – issues to consider 1. Is it voluntary intoxication? Involuntary = slipping a mickey into your drink a. Intoxication is voluntary if the actor is culpable for becoming intoxicated b. Courts are unsympathetic to this situation 29
c. Drug addiction and alcoholism are considered voluntary intoxication under CL d. There may be times when voluntary intoxication is a justification 1. No state of mind to provide for the definition of the offense 2. He suffered from a long term, intoxication induced, fixed insanity e. Mens rea concerning voluntary intoxication. CL has 6 approaches ranging from negating all of the actors mens rea to all crimes, to not recognizing intoxication for any defense f. The traditional CL rule draws a distinction between general intent and specific intent. Voluntary intoxication is not a defense to general intent crimes but is a defense to specific intent crimes 2. In what ways does the defendant claim that the intoxication affects his culpability? 3. What type of offense is the defendant charged? (General Intent/No intoxication defense, Specific Intent/Intoxication defense available, Strict Liability/no intoxication defense) D. Intoxication and Homicide 1. Intoxication can be used in a murder defense to show no premeditation and no deliberation allowing the charge to be dropped from murder 1 to murder 2 3. In felony murder, b/c it is a specific intent crime, the defendant can introduce evidence that he could not provide the requisite felonious intent b/c of intoxication. In this case he could be found guilty of the felony but not the felony murder, b/c intoxication is a defense to spec. int. crimes E. Voluntary intoxication does not allow an individual to claim their actions were not voluntary b/c the intoxication was voluntary F. Insanity due to voluntary intoxication 1. CL – Does not recognize the defense of temporary insanity due to voluntary intoxication. Must be so drunk as to constitute legal insanity 2. There is no defense of fixed insanity due to drug or alcohol addiction 3. Although there may be a defense of fixed insanity if the defendant id sober at the time of the defense (a claim could be made about physiological changes due to the addiction G. Involuntary intoxication 1. Intoxication that is involuntary is innocent and the actor is not to blame 30
2. The actor will more than likely be acquitted of all charges (specific or general intent) if the intoxication negates an element of the crime (mens rea) H. MPC1. Recognizes 3 types of intoxication a. Self induced b. Pathological c. Intoxication that is not self induced 2. Pathological and involuntary intoxication are affirmative defenses if it caused the actor to suffer from a mental condition comparable to what constitutes insanity 3. The code does not distinguish between general and specific intent offenses 4. Voluntary intoxication – the code provides a person should be acquitted for a crime if the intoxication negates an element of a crime (The code stipulates that an act be purposely done, if the person unconscious due to intoxication that element is not met, therefore, regardless of whether the intoxication was voluntary or not, the defense is allowed) 5. Voluntary intoxication will not negate recklessness…you will be charged with something. Risk taken by getting that drunk will translate into recklessness 6. Intoxication as an affirmative defense – If at the time of conduct the defendant suffered from pathological intoxication or intoxication that was not self induced, the actor’s condition qualifies under the MPC’s definition of insanity. 12. Insanity A. Issue of insanity is controversial for various reasons 1. Usually offered in well publicized and heinous offenses 2. Suffers from an intermingling between psychiatry and the law B. Competency to stand trial 1. A person may not be tried, convicted or sentenced in an offense if during the criminal proceedings: a. lacks the capacity to consult with their attorney with a rational degree of understanding b. lacks a rational, as well as factual, understanding of the proceedings against her 2. Competency to stand trial is to be determined by the trial judge, not jury 3. Jury may return with one of four verdict a. not guilty b. guilty but mentally ill 31
c. not guilty by reason of insanity (NGRI) d. guilty 4. With NGRI verdict, all elements of the crime were proven, but it was shown that the defendant was insane at the time of the crime C. Burden of Proof 1. Defendant has initial burden of raising insanity defense 2. Majority of state also require defendant to shoulder burden of persuasion 3. Must be preponderance of evidence D. Definitions of insanity 1. M’Naughten Rule a. Focuses exclusively on cognitive disability b. A person in insane if at the time of her act she was laboring under such a defective reason arising from a disease of the mind that she 1. She did not know the nature and quality of the act that she was committing 2. If she did know it, she did not know that what she was doing was wrong. c. Special attention to the word “know” d. The phrase “nature and quality” of the act is potentially a exceedingly e. Unclear whether the word “wrong” refers to legal or moral wrong f. Few M’Naughten jurisdictions recognize moral right and wrong that also apply to deific decree, who thinks that they are acting under the direct rule of god g. This test is grossly unrealistic and does not recognize degrees of incapacity. 2. Irresistible impulses a. Done to broaden scope of M’Naughten b. Formulated a 3rd prong to the insanity test that encompasses mental illnesses effective volitional capacity c. Generally speaking, insane is- if at the time of the offense 1. she acted from an irresistible or uncontrollable impulse 2. she lost power to choose between the right and wrong and to avoid doing the act in question as that her free agency was at the time destroyed 3. the defendant’s will has been otherwise been voluntarily so completely destroyed that her actions are not subject to it but are beyond her control d. no real accurate scientific basis for test 32
3. Durham Standard (Broadest Insanity defense / now gone) a. This test provides that a person is excused if her unlawful act was the product of a mental disease or defect b. Pursuant to this rule, jury must decide whether she was suffering from a mental defect at the time of the offense and if the offense would not occurred but for the condition c. Criticisms because it fails to define mental defect – heightened levels of insanity defense and acquittals d. Under Durham 1. A disease is able to cure 2. A defect is incapable of changing e. Didn’t leave determination of sane or insane up to the jury, only which expert to believe f. Based totally on whether health professionals thought it to be a mental disease or not 4. MPC a. provides a person is not responsible for her criminal conduct if at the time o f the conduct as the result of a mental disease or defect she lacked substantial capacity to 1. Appreciates the criminality or wrongfulness of the conduct 2. To conform her conduct to the requirements of the law – volition component b. Notice use of “appreciate” rather than “know” in order to avoid narrow interpretation like M’Naughten c. Test also avoids “impulse” to avoid potential pitfalls from using that word d. Both prongs of the test are modified by the words “lacks substantial capacity” which does not require total incapacity e. Allows for a broad 5. Federal Statutory definition of insanity a. 18 U.S.C. § 17- under the law a person is excused if she proves by clear and convincing evidence that at the time of the offense, as the result of a severe mental disease or defect, she was unable to appreciate 1. Nature and quality of her conduct (eliminates volitional component) 2. Wrongfulness of her conduct (relies on cognitive component) b. must be severe mental disease or defect c. Unlike M’Naughten, and unlike MPC, cognitive incapacity must be total
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d. Like MPC, uses word “appreciate” instead of “know” which should keep it broader than M”Naughten E. Mental Disease and Defect 1. person may be mentally ill without being insane 2. insanity is a legal term 3. The law does not define what insanity or mental defect is specifically, leaving it open for interpretation F. Institutionalization 1. Criteria for release a. Someone acquitted for NGRI may be held as long as she is both mentally and dangerous to herself and others 2. Length of confinement is indefinite until she meets the criteria for release regardless of the prison sentence that she would have received 3. Common Law Rules that the insane cannot be executed a. Offends humanity G. Abolishment of the Insanity defense 1. 3 states have abolished the insanity defense, but allow evidence of mental illness in regards to the mens rea requirement H. Guilty but Mentally Ill 1. 13 states have adopted alternative verdict, and in all but two of the insanity defense still remains. Now gives jury four verdicts to choose from instead of three 2. The effect of GBMI the defendant would receive the sentence that otherwise be imposed if she were found guilty, after sentencing however, she may receive psychiatric care in the prison setting or in a mental institution. 3. If the person is cured while in custody, she must complete her prison sentence. 13. Diminished Capacity A. Definition has been convoluted by courts everywhere. With this is mind, it may be said that diminished capacity is a term used to described two categories of circumstances in which an actor’s abnormal mental condition, short of insanity, will exonerate him or more often result in his conviction of a crime or degree of crime less serious than the original charge. 1. mens rea form a. Did not have sufficient mens rea at the time of the crime, but is not insane 2. Partial responsibility B. Automatism 1. Temporary mental disorder occurring at the time of a crime when an actor does not have sufficient control over his actions. (Ex. Epilepsy) C. Fulcher Test 34
1. Serious and irresistible brain damage must be established to establish legal insanity 2. If a condition is irreversible why bother with psychiatric treatment? D. Quick Test 1. Things that are internal = insanity 2. Things that are external = automatism (hypoglycemia, epilepsy) 3. If we want social control over automatism, legislate it as we do legal insanity. E. Brawner Test 1. Diminished capacity does not prevent you from knowing what you are doing, but may negate specific intent or pre-meditation. 2. Doesn’t establish insanity but may lessen culpability. 3. Justifications for diminished capacity defense: a. fills holes in a jurisdictions insanity test criteria b. Permits jury to avoid imposing the death penalty on mentally disables killers who are criminally responsible for their acts. c. Permits jury to make more accurate individualized culpability judgments. F. Ohio 1. You are legally insane or culpable, no in between 2. Many jurisdictions have adopted this rule.
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