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Nature, Sources and limits of the Criminal Law Criminal law can be characterized as a series of commands to act in a manner that our society has declared to be moral. A person who fails to obey these commands ―will incur a formal and solemn pronouncement of the moral condemnation of the community‖ and be sanctioned Criminal law is rooted in common law. Over time, legislators took over the responsibility of defining criminal conduct, enacting criminal laws, and devising sanctions for disobedience. The legislators’ authority, of course, is limited by federal and state constitutional law. The courts, in addition to passing on the constitutionality of criminal legislation, retain their role of interpreting the criminal law and ascertaining guilt or innocence under the law. Role of Court in Criminal Proceedings 1. Making sure the Statute is constitutional a. There is a presumption that the statute is constitutional 2. Interpreting criminal statutes Proof beyond a Reasonable Doubt To convict a jury must find the DF guilty beyond a reasonable doubt. There is a presumption of innocence. Circumstantial Evidence - evidence that doesn't directly prove the fact Direct evidence - directly proves a fact without an inference or presumption (like eye witness testimony) Enforcing the presumption of Innocence – Owens v. State FACTS: An intoxicated person, found asleep behind the wheel of a car parked in a driveway, with its motor running and lights on, is convicted of drunk driving, even though there was only circumstantial evidence that the car was driven on the highway. RULE: A conviction based upon circumstantial evidence alone, may be sustained if the circumstances are consistent with any reasonable hypothesis of innocence.

States should give fair warning of what conduct is prohibited. Some statutes that fail to define clearly the prohibitions have been held to be void for vagueness. Certainty is a desired feature of any system of law, but it is not always possible to precisely define illegal conduct. Fair Warning 1. Common Law – absent a statute, the only conduct that was criminal was that which was deemed malum in se (inherently evil). The common law took a theological approach, which looks at the intrinsic quality of conduct. 2. Criminal codes – One of the reasons for the formulation of criminal codes is to safeguard conduct that is without fault from arbitrary condemnation as criminal and to give fair warning of the nature of the conduct that does constitute a criminal offense. What constitutes a crime?

Commonwealth v. Mochan The trial court convicted DF for common law misdemeanor not codified expressly as a statutory offense for telephoning a woman several times per week and making lewd and obscene comments to her. When the conduct alleged is not prohibited expressly by criminal statute, a violation of the legality principle does not exist if a statutory provision permits punishment of common law offenses. Keeler v. Superior Court Keeler allegedly murdered an unborn but viable fetus by kicking his pregnant wife in the stomach. There is a violation of the Due Process Clause when a court construes a criminal statute contrary to the legislative intent and applies its expanded definition of the statute retroactively to a person’s conduct. Three different doctrines prescribe the relationship between the legislatures and the courts: 1. The principle of legality or nulla poena sine lege - this condemns judicial crime creation. a. No crime/no punishment without pre-existing law. b. No retroactive laws. Due process of law - fair warning. c. No ex post facto laws which is judicial enlargement of statute. 2. The constitutional doctrine void-for-vagueness forbids wholesale legislative delegation of lawmaking authority to the courts a. Ordinary person can't discern what is proscribned b. Allows for arbitrary/discriminatory enforcement. 3. The rule of strict construction directs that judicial resolution of residual uncertainty in the meaning of penal statutes be biased in favor of the accused. City of Chicago v. Morales Chicago’s anti-loitering ordinance was challenged as unconstitutionally vague because it failed to give adequate notice of what conduct it prohibited and gave police too much discretion. To meet the requirements of the Due Process Clause and thus survive invalidation due to vagueness, a criminal law must provide sufficiently specific limits on the enforcement discretion of the police and sufficient notice to the public of what conduct is prohibited. - Void for vagueness Test: Does the Statute require a person of common intelligence to necessarily guess as to its meaning and differ as to its application.

The goals of statutory interpretation is to discern the legislatures intent. Usually there is some sort of ambiguity TOOLS: 1. Definitions 2. Plain Meaning/Dictionary Meaning 3. Legislative History …. intent 4. Case Law - Before the enactment of the statute - After the enactment (much more common) (this is the most common method of interpretation). 5. Similar statutes in the same jurisdiction 6. Other states similar statutes (legislative history and definitions. 7. Other states' case law interpreting similar statutes

8. Public Policy United States v. Foster Foster, a drug trafficker, was convicted of carrying a firearm is relation to a drug trafficking crime. A simple English word such as carry can require statutory interpretation to ascertain legislative intent. - Rule of Lenity - If statute can reasonably be construed favorably either to the government or the individual, the statute must be read in favor of the individual. **THIS IS A TIE BREAKER. It is used at the end.  This has not been adopted in all states and the model Penal code rejects this doctrine.  Even if you don't have the rule of lenity there is the rule of strict construction.

There are two basic elements to every crime: i. Actus reus – the commission of some act prohibited by law (or omission of a legally required act); and ii. Mens Rea – the criminal state of mind. To constitute a crime, the act must occur with intent; the intent must accompany the doing of the act, and the actus reus must be attributable to the mens rea. Definition of ―Act‖ – some wrongful outward act or manifestation. An act is any event that is subject to the control of the will. To meditate is an act, but to dream is not. In all instances the act must be prohibited in order for a crime to exist. A person might intend to commite a crime by performing some act, but if that act is not prohibited, then there is no crime. All Acts Constituting a Crime Must be Voluntary— Martin V. State Police officers arrest an intoxicated man at his home, take him onto a highway, and arrested him for public drunkenness. A DF must perform the physical act for each element of a crime that has an actus reus component. The D was brought to the public place involuntarily, thus, although intoxicated, the state can’t establish that he voluntarily appeared in public in that condition. Conditioned Response/Involuntary Act State v. Utter Intoxicated father with an alleged conditioned response condition fatally stabs his son in the chest. A voluntary act requires the consent of the actor’s will. A person who acts unconsciously may not have the requisite actus reus. While the concepts of ―voluntary act‖ and ―mens rea‖ are similar, as they both point to a mental state, proof of the existence of a ―voluntary act‖ is actually the minimal element necessary to establish the actus reus. - M.P.C. § 1.13(2) – ―Act‖ = ―a bodily movement whether voluntary or involuntary.‖ - M.P.C. § 2.01(2)(d) – ―a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual‖ is NOT a voluntary act. OMISSIONS (―NEGATIVE ACTS‖)

A DF may be criminally liable for an omission or forbearance to act when there is a legal duty for him to so act. A punishable negative act is a nonoccurrence involving a breach of DF’s legal duty to take positive action. No legal duty to render aid. People v. Beardsley Intoxicated male fails to assist his female friend who was in a stupor from drinking alcohol and ingesting morphine. A person may be criminally liable if he fails to perform a legal duty and his omission causes harm. Mere moral obligations to act do not create legal duties to act. - Five Legal Duties to Act: (1) Statutorily imposed duty; (2) Status relationship; (3) Assumed contractual duty of care; (4) Voluntarily assumed duty of care and so secluded helpless person as to prevent others (drowning person example); and (5) Creation of risk. Distinguishing Acts from Omission Barber v. Superior Court Barber, a physician, removed Herbert (a comatose patient with little chance of recovery) from life support at his family’s request. Removal of life support equipment from comatose patient who is unlikely to recover is not an affirmative act, but an act of omission that if in accord with the patient’s or surrogate’s wishes, does not give rise to criminal liability. There is a distinction between removal of life support from a comatose patient (which is not a crime) and euthanasia. SOCIAL HARM Social Harm - is the "negation, endangering, or destruction of an individual, group, or state interest, which is deemed socially valuable. There are two types of offenses: 1. Result Crimes - The law punishes because of an unwanted outcome, such as the death of another person (criminal homicide) or the destruction of a dwelling house (arson). Because the outcome of ones action results in a crime and not simply a tort, it is called a "Social harm". The loss suffered by the crime is experienced not only by the victim, but also by society. 2. Conduct Crimes - The law prohibits specific dangerous behavior such as driving under the influence of alcohol or solicitation to commit murder. Do conduct crimes cause "social harm" even though they cause no specific infliction. Amendment Circumstance - condition that must be present in conjunction with the prohibited conduct in order for that to constitute a crime.

Mens rea is a guilty or wrongful purpose, a criminal intent. The intent required is not the same for all crimes. Culpability meaning: any morally blameworthy state of mind is sufficient Elemental meaning: must have the specific mental state set forth in the definition of the crime (e.g., intentionally, recklessly). - used by MPC

United States v. Cordoba-Hincapie – For hundreds of years, western nations have followed the mens rea principle to determine the propriety of charging an individual with a crime and the penalty of the crime. In this case the judge stated the evolution of this important principle has been ―a continuing process of self-civilization.‖ Regina v. Cunningham A thief stole a gas meter from the basement of a house, which caused the gas to leak into an adjoining house and partially asphyxiate an elderly woman who lived there. The mens rea requirement is satisfied by showing of either intentional or reckless conduct; a showing of malice or wickedness will not suffice. PROVING CULPABILITY (INTENT) At common law there were three types of mens rea: 1. General Intent – requires only that the accused meant to do the act he committed. For example, if A fires a gun into a crowd, although he does not intend to hurt anyone, if B is killed by a gunshot he may be held for murder.  General intent may be proved by simply showing that the prohibited result was caused by a voluntary act.  Transferred intent – when a person has the required to commit one criminal act, he may be held responsible for results that he did not intend if he inflicts the kind of harm intended and if the injuries sustained do not require a different mens rea. o If A attempts to hit B and unintentionally hits and injuries C, A is guilty of assault on C. o If A shoots at B, misses, and the bullet strikes an oil lamp igniting a fire, A is not guilty of arson b/c arson requires specific intent to start a fire. A can only be held to have had the intent to do personal injury. o D1 intends to kill Y1 who is using X1 as a shield. D1 fires one bullet through X1 killing both of them. Transferred intent does not apply here. 2. Specific Mens Rea 1. Malice – can refer to specific criminal state of mind, can be inferred where DF acts recklessly or with wanton disregard for consequences, or the dictionary meaning as in the crime of criminal malicious mischief. 2. Acting willfully – usually requires general mens rea but may be elevated to standard of specific intent if expressly req. by terms of a statute. 3. Wanton or Reckless conduct – intentional failure to take reasonable care when confronting known risk. Can be subjective or objective. 3. Criminal negligence – flagrant and reckless disregard for the safety of others. The test is what a reasonable person would do under like circumstances. People v. Conley After an altercation at a high school party, two boys got into a fight where one boy hit the other in the face with a wine bottle, which caused extensive injuries to the other boy’s mouth and

teeth. A person acts with intent if it is his conscious object to cause (desire to bring about) a social harm or he knows that such harm is almost certain to occur as a result of his conduct. THE MODEL PENAL CODE APPROACH TO INTENT Section 2.02 General requirements of Culpability This sections expresses the code’s basic requirement that unless some element of mental culpability is proved with respect to each material element of the offense, no valid criminal conviction may be obtained. Culpability must be proved for each element: (Material element + Level of culpability) 1. The nature of the forbidden conduct 2. The attendant circumstances 3. The result of the conduct. Purposely - it is D’s conscious object to engage in criminal conduct or to cause criminal result Knowingly – D is aware that his conduct is of a criminal nature or that such circumstances exist; and he is aware that it is practically certain that his conduct will cause such a result Similarities: knowledge or awareness that requisite circumstances exist Difference: "conscious object" Recklessly – D consciously disregards a substantial and unjustifiable risk that material element exists or will result from D’s conduct. Negligently – D should be aware of substantial and unjustifiable risk Risk – must be such that D’s failure to perceive it involves a gross deviation from the standard of conduct that law-abiding person would observe in the actor’s situation. Jury must perform two distinct functions: 1. Examine risk – was it substantial? 2. Examine D’s disregard of risk: - Is it a gross deviation? - Should D be punished for disregarding risk? Similarities: Disregard and substantial and unjustifiable risk Differences: Conscious disregard for reckless Q - What mens rea is required when no specific level of culpability is listed? At least recklessly, knowingly or purposely (negligence is NOT enough). Knowledge of Attendant Circumstance (The ―Willful Blindness‖ Problem)— State v. Nations A nightclub owner was charged with endangering the welfare of a child less than seventeen years old when she hired a sixteen-year-old to dance in her club. She claimed that she had asked the girl for identification and that she though the girl was eighteen. Unless the applicable criminal code states otherwise, a requirement that a person commit a certain act ―knowingly‖ with respect to a particular fact will not be satisfied unless the person had actual knowledge of the existence of the particular fact.  The MPC definition has been expanded so that ―when knowledge of the existence of a particular fact is an element of an offense, such knowledge

is established if a person is aware of a high probability of its existence.‖ This definition of knowledge encompasses willful blindness of a fact. Problems in Statutory Interpretations— United States v. Morris A computer hacker intentionally unleashed a worm virus onto the internet while it was in its nascent stages. Although he did not mean to cause any damage, he underestimated the copy rate of the worm and subsequently caused the crash of several high level government computer systems. If a statute is ambiguous regarding whether a mens rea term supplies to all or only some of the elements of a crime the court should examine the legislative intent to determine the correct interpretation. MISTAKE AND MENS REA Mistake of fact or of law is a defense to a crime that requires specific intent; a mistaken person simply lacked the specific intent required. A person who takes the property of another would not be guilty of theft if he believed that the property was his own. The jury decides what the accused believed. With general intent crimes, mistake of law is not a defense. Mistake of fact may be a defense if the mistake is reasonable and the accused actions would have been lawful had the facts been as he believed. Mistake of fact Step 1: Is offense general or specific intent? Step 2(A): Specific intent : Does mistake relate to the specific intent element of the crime? - if YES: Do elemental analysis – does mistake negate specific intent element of offense? If it does, D is acquitted. - if NO: treat offense as if it was general intent crime. Step 2(B): General intent: Do culpability analysis – determine whether D acted with a morally blameworthy state of mind. Was D’s mistake reasonable? - if YES: D is morally innocent and entitled to mistake defense - if NO: D is morally culpable and is not entitled to mistake defense People v. Navarro A man was charged with theft for taking four wooden beams from a construction site and, but argued that he had no intent to steal the beams because he thought they had been abandoned. With regard to a specific intent crime, mistake of fact is a defense if the mistake negates the specific intent required in the definition of the crime. Even unreasonable mistakes will be a defense. - At common law, a reasonable mistake of fact, but not an unreasonable, ordinarily exculpates a DF prosecuted for a general intent crime. MISTAKE OF LAW Any mistake of law, no matter how unreasonable, will be valid defense to specific intent crime (negates ―intent‖ element). *Knowledge of law is element of offense * is limited. *Must negate that specific intent element. If yes, than acquit; if no, go to general intent analysis.

Generally ignorance does not excuse criminal conduct for general intent. Later common law allowed exception for reasonable reliance doctrine. MPC allows exception of reasonable reliance on statutes, court decisions, administrative orders, and officials in charge of the enforcement of the law. (Mistake of law, General intent). Statutory interpretation-general intent crime— People v. Marrero Marrero, a federal corrections officer, was convicted for violating a statute which he believed gave him the right to carry a gun. An erroneous interpretation of the law does not excuse violation of the law, even where the interpretation is reasonable. Mistake of law exceptions are applied extremely narrowly. Statutory interpretation—specific intent crimeCheek v. United States A pilot who had previously filed tax returns stopped filing them because he became influenced by a group who believed that the income tax system was unconstitutional. The IRS charged him with willful tax evasion. A mistake of law, either reasonable or unreasonable, will be a defense to a crime if it negates the specific intent required for conviction.

Actual cause (Cause-In-Fact) ―But for‖ causation - Result would not have happened but for Defendant’s conduct. Substantial factor test = Actual cause. Concurrent sufficient causes – if each cause alone is sufficient to bring about prohibited result ―But for‖ test applied Oxendine v. State A father is convicted of manslaughter, after beating his six-year-old child who had been earlier pushed into a bathtub (causing injuries) by the father’s girlfriend. Actual causation or causationin-fact is a necessary prerequisite to the imposition of criminal liability. Proof beyond a reasonable doubt of actual causation is necessary for criminal liability. PROXIMATE CAUSE (LEGAL CAUSE) Actual cause + proximate cause = Causation The doctrine of proximate causation serves the purpose of determining which persons among those who satisfy the ―but for‖ standard should be held accountable for the resulting harm. Thus, even though a person’s conduct may actually cause another’s death, this conduct is not necessarily the proximate or legal cause of death. - Issues of proximate causation usually arise when there is an intervening force, such as: (i) An act of god (ii) An act of an independent third party that accelerates or aggravates the harm caused by the defendant or that causes it to occur in an unexpected manner, or (iii) An act or omission of the victim that helps to bring about the outcome.

Intervening Forces— Kibbe v. Henderson A person is convicted of second degree murder, after robbing, undressing, and abandoning a highly intoxicated individual on a two-lane highway, who was run over by pickup truck. Proximate or legal causation is a necessary prerequisite to the imposition of criminal liability. *Does intervening cause break off the chain of causation? An intervening act is a coincidence when the defendant’s act just put the victim in the wrong place at the wrong time, in which case the defendant is not the proximate cause unless the result was foreseeable. An intervening act is a response when the act is a reaction to the conditions made by the defendant for the victim, in which case the defendant is the proximate cause unless the intervening cause is unforeseeable and very highly unlikely, bizarre, and abnormal. Two questions: 1) Was intervening cause coincidental or responsive? 2) Was intervening cause unforeseeable (abnormal) or foreseeable? If coincidental and unforeseeable then no causation If responsive and unforeseeable then no causation and DF is not guilty If Coincidental and foreseeable than causation If Responsive and foreseeable than causation

and DF is Guilty

Deceased’s Owns Actions Caused Death— Velazquez v. State A drag racer is prosecuted for vehicular homicide, after participating in a race on a public road, where the other racer lost control of his car, drove though a guardrail, and died. Causation is a necessary prerequisite to the imposition of criminal liability. Applying ―but for‖ test

Three types of Homicide: 1) Justifiable homicide – authorized by law 2) Excusable homicide – Accidental, self-defense, insanity 3) Criminal homicide – ―murder‖ and ―manslaughter‖ Omission to act – Where there exists a legal duty to act, an omission to so act will constitute criminal homicide if such omission results in the killing of another human being. For example, the court found a legal duty existed where two elderly women lived together and one became incapacitated. The other did nothing to help her, creating culpable negligence when the first woman died. Time limit – At common law, the death had to occur within one year and one day after the DF’s unlawful act causing the injury or there could be no prosecution for murder. Many courts and legislatures have since concluded that the rule is ―anachronistic‖ due to medical advances and no longer follow the rule.

Intentional Killings Murder is the unlawful killing of human being by another human being with malice aforethought. This malice may be actual or may be implied by law. Degrees of Murder: The deliberation-Premeditation Formula a. Malice aforethought - The term ―malice aforethought‖ does not approximate its literal meaning. Rather than relying on this misleading phrase, it is more appropriate to consider the various types of mens rea for murder that the common law came to recognize and that exist today in most jurisdictions: i. Intent to kill – Conduct, accompanied by an intent to kill, that causes another’s death constitutes murder, unless there are mitigating circumstances present or the homicide is either justifiable or excusable. ii. Intent to inflict serious bodily harm – Conduct coupled with an intent to do serious bodily injury but without intent to kill, which causes another’s death, constitutes murder. iii. Depraved Heart – Reckless conduct that a reasonable person would realize creates a high degree of risk of death or serious bodily injury to another, which actually causes the death of another, may constitute murder. iv. Intention to commit a felony (Implied malice- felony murder rule) At common law, there were no degrees of murder. All homicide with ―malice aforethought‖ was murder and was punished by death. In order to reduce punishment for less grievous homicides, most states classify murder. First Degree Murder - All homicide with malice aforethought is either: (i) Encompassed within the felony murder rule or (ii) willful, deliberate, and premeditated. a. Willful – The DF must actually intend to kill b. Deliberate – The DF must be possessed of a cool mind that is capable of reflection. c. Premeditated – DF, with a cool mind, must in fact reflect beforehis act of killing. The DF’s state of mind is decisive during the length of time between the formation of the idea to kill and the actual killing. o Premeditation = Quantitative (time) Deliberative – Qualitative (coolness) o You can premeditate without deliberating!! You can't deliberate without premeditate! d. Proof of state of mind- Premeditation, deliberation, willful intent are all subjective states of mind. The existence of these elements must be determined from the DF’s conduct in light of the surrounding circumstances. e. Presumption of premeditation for certain homicides – Homicides perpetrated by poison or torture or after lying in wait for the victim, etc. are presumed by common law to have premeditation. Second degree murder – murder not falling in the category of 1st degree. a. No premeditation – Those murders with the intent to kill but lacking premeditation and deliberation are of the second degree.

1. Intentional – Both 1st and 2nd degree murder include intentional homicide. Since it may actually be impossible for the mind to function in a way so that an intentional homicide occurs without at least some premeditation, the only difference between 1st and 2nd degree murder exists in the degree of the premeditation. 2. Voluntary manslaughter – this is an intentional homicide committed under extenuating circumstances that mitigate but do not justify or excuse the killing. The principal extenuating circumstance is that the DF acted in a state of passion engendered by adequate provocation. However, if the rationale of 2nd degree murder is that it does not involve premeditation, then a conflict between it and intentional (voluntary) manslaughter inevitably arises. Voluntary manslaughter does not include malice since it is a homiced that arises from sudden passion and on adequate provocation). Therefore, it seems that the difference between voluntary manslaughter and second degree murder is in the adequacy of the provocation that causes the killer’s act- a more substantial provocation must be required to classify the homicide as voluntary manslaughter. b. Felony-Murder – Those felony murders where the felony in question is not enumerated in the first degree murder statute are considered to be second degree murder c. Wanton disregard for human life – Killings that indicate the DF’s wanton and willful disregard for human life are also 2nd degree murder (playing ―Russian Roulette‖ with a loaded revolver) i. This standard seems to approach the negligence standard, but in order for 2nd degree murder to exist, the Df’s act must be sufficiently wanton to imply malice. ii. Involuntary manslaughter may also arise from criminal negligence (Although sufficient wantonness is not present to imply malice aforethought). The distinction between second degree murder and involuntary manslaughter is a difficult one to draw. iii. Criminal negligence, even of a wanton nature, cannot ever amount to first degree murder because negligence necessarily rules out the possibility of premeditation. iv. The element of provocation, may reduce murder to manslaughter v. The character of the DF (personal turpitude may also have an effect on whether the murder is held to be 1st or 2nd degree. d. Lesser included offenses – Typically, a DF, has a right to have the jury instructed that he can be convicted of a lesser offense than that charged. For example, if a DF is charge w/1st degree, the jury might be

instructed that the DF may be convicted of 2nd degree murder if he is found to have intentionally killed a person but not in a premeditated and deliberate manner. Time required for premeditation and deliberation-State v. Guthrie DF was convicted of 1st degree murder and appealed the conviction based on the trial court’s instructions to the jury. Murder in the 1st degree consist of an intentional, deliberate, and premeditated killing, which means that the killing occurs after a period of time for prior consideration. The intent to kill in first degree murder must last for more than an instant. Intent to Kill— Midgett v. State A father who had been in the habit of physically abusing and neglecting his son, got drunk and beat him again resulting in the child’s death. The father was found guilty of murder 1st by the trial court. Evidence of intentional child abuse, which eventually resulted in the child’s death, is not sufficient by itself to show the premeditated intent to kill necessary to sustain a conviction for murder in the 1st degree.  Shortly after the decision in Midgett, Arkansas law was amended to allow a finding of 1st degree murder in cases where ―under circumstances manifesting extreme indifference to the value of human life,‖ one ―knowingly causes the death of a person fourteen years of age or younger.‖ Euthanasia— State v. Forrest DF’s father was terminally ill and in the hospital with a do-not resuscitate order. DF killed his father by shooting him, stating he did not want his father to suffer any longer. Killing someone to prevent his further suffering is still murder in the first degree, if it is willful, deliberate, and premeditated. Manslaughter: ―Heat of Passion‖ Killings. A. Common law principles – The elements of heat of passion are: 1. There must have been a reasonable provocation. 2. The DF must have been in fact prevoked 3. A reasonable person so provoked would not have cooled off in the interval of time between the provocation and the delivery of the fatal blow. 4. The DF must not in fact have cooled off during that interval. B. Provocation – under common law reasonable person test, sufficient provocation is that which causes a reasonable person to lose hi normal self-control. Although a reasonable person who has lost control over himself would not kill, his homicidial reaction to the provocation is at least understandable. The provocation defense is available only if the offender moves quickly (succumbs to the provocation right away); too much delay can jeopardize the defense. C. Premeditation/Deliberation Factors:

(1) Want of provocation on part of deceased; (2) Conduct and statements of defendant before, during, and after killing; (3) Ill-will or previous difficulties between parties; (4) Dealing of lethal blows after deceased is rendered helpless; (5) Evidence of brutal manner of killing; and (6) Nature and number of victim’s wounds "Mis-directed" retaliation doctrine - Justification- only applicable when it is an act by the dead man, not a third person which provokes the accused. Limitations— Girouard v. State A husband killed his wife by stabbing her 19 times after she said horrible things, threatened to leave him and told him he would be court-marshaled. Words alone are not adequate provocation to provoke a reasonable person to kill in the heat of passion, thus they are not enough to mitigate murder to manslaughter. - Rule of Provocation – Murder should not be mitigated to manslaughter unless: i. There was adequate provocation ii. The killing was done in the heat of passion iii. The killing followed the provocation before there was a reasonable opportunity for the passion to cool; and iv.) There was a causal connection between the provocation, the passion, and the fatal act.  in this case the 2,3,4 were all satisfied… just not the first. The trend is to let juries, not judges decide sufficient provocation. Justification v. Excuse It is unclear whether the defense of provocation is derived from a theory of justification or that of excuse. A reasonable conclusion is that provocation is a ―partial justification‖; e.g., witnessing the unlawful conduct of adultery of one’s wife makes the husband’s killing of his wife ―less socially undesirable.‖ It is also reasonable to conclude, however, that the killing of one’s wife is never justifiable, but that society’s understanding that witnessing one’s wife’s infidelity might undermine one’s ability to act within the confines of the law allows for a ―partial excuse.‖ Characteristics of the reasonable man Generally, a homicide constitutes manslaughter instead of murder if the DF was provoked in a manner ―calculated to inflame the passion of a reasonable man‖ or which ―might render ordinary men, of fair average disposition, liable to act rashly or without due deliberation or reflection, and from passion rather than judgment.‖ Originally courts held that the ―reasonable man‖ to be a figure without any of the DF’s specific characteristics. (Bedder v. Director of Public Prosecutions). More recent cases take into consideration certain relevant characteristics. Director of Public Prosecutions v. Camplin A fifteen year old boy killed a Pakistani man after the man sodomized him and laughed about it. When considering whether a person is adequately provoked it is necessary to consider two factors:  Less limitations (words can be sufficient provocation)

Reasonable Man Test: 1. Gravity - Subjective - Was he in fact provoked (can take into account all characteristics: sex, age, race, circumstance, etc.)? 2. Response - self control - Objective - Did he react as a reasonable man/person would (can take into account only sex and age) (reasonable person)? The MPC— People v. Casassa After dating DF the victim told him that she was not interested. He obsessed about her, stalked her, and killed her. His only defense is that he was acting under extreme emotional disturbance caused by her rejection. The test of whether the extreme emotional disturbance of the killer had a reasonable explanation or excuse depends on a reasonable evaluation of the external circumstances that the killer believed he was facing and not on the killer’s personal point of view.  EED – gets rid of provocation and ―cooling off period‖ problem (EED may be based on series of events rather than a single, precipitating cause) Questions in determining EED: (1) Was D suffering from EED? (subjective) (2) Was there a reasonable explanation or excuse? (objective + subjective) UNINTENTIONAL KILLINGS: UNJUSTIFIED RISK-TAKING Involuntary manslaughter is an unintentional homicide committed without excuse, justification, or malice. Involuntary manslaughter may result from the commission of a lawful act in a negligent manner, or from the commission of an unlawful act that is not a felony (the misdemeanor-manslaughter rule.) Dangerous Pets— Berry v. Superior Court DF’s pit bull attacked and killed a two-year old child. Keeping of a Pit Bull may support claim of implied malice sufficient to support prosecution for murder. (SEE PEOPLE v. Nieto Benitez for rule of law) People v. Nieto Benitez The court determines that using the description ―an abandoned or malignant heart‖ in its instructions to the jury on implied malice is confusing. A person commits 2nd degree murder with implied malice whne the person performs an act, the natural consequences of which are dangerous to life, and the person deliberately performed the act with conscious disregard for life and with awareness that his or her conduct endangered the life of another. o Under the MPC, ordinary recklessness is sufficient for a finding of manslaughter, while a finding of murder requires the additional judgment that the actor’s conscious disregard of risk manifested ―extreme indifference to the value of human life.‖ Implied Malice: 1) Base antisocial motive/wanton disregard for human life; and 2) High probability that it will result in death

Examine: Probability Justification/Social Utility High High ↑ ↑ | | ↓ ↓ Low Low Awareness of Effects of Alcohol – State v. Hernandez FACTS: DF, while drunk, drove his van into a truck killing one person and injuring two others. At trial the drinking slogans that Hernandez used to decorate his van were admitted into evidence over defense objection. RULE: Evidence to show that the accused was aware of the risks of his behavior is not admissible to show mental state when the charge is involuntary manslaughter. The evidence of bumper stickers doesn’t show that he acted with criminal negligence. UNINTENTIONAL KILLINGS: UNLAWFUL CONDUCT The Felony-Murder Rule: At common law, any homicide committed while perpetrating or attempting to perpetrate a felony was murder. Most jurisdictions have limited this rule. Some jurisdictions have amended the felony-murder rule to hold that it will be applied only to certain types of felonies (e.g. rape, robbery) The conceptual basis for the felony-murder rule: - The felony-murder rule is widely criticized, and some states and countries have abolished it. Courts that do apply the rule often rationalize it one of the following ways, most typically deterrence: Deterrence - The rule is designed to stop people from killing others during the commission of a felony. Stopping crimes from being committed violently. It is also meant as a deterrent to felonies in general.  This isn't much justification because the murders usually aren’t intended and the huge consequences aren't much justification for the not so weighty acts. Transferred Intent and constructive Malice: The Felony-murder rules presumption of Culpability - The intent to commit the felony is transferred to the act of killing thus relieving the burden of premeditation and culpability.  However, there are two distinct mental patterns that can't equate to malice and aforethought required for murder.

Retribution and General culpability: A strict liability view of the felony-murder rule Justification simply on the basis that the DF committed a felony and a killing occurred.  The felon has exhibited an "evil mind" justifying severe punishment.  This just seems like a very primitive rationale. You a bad person who did bad things or your just blameworthy for the crime.

―In perpetration of‖ felony – The homicide must occur ―in the perpetration of‖ the felony. Most courts interpret this to mean that it is sufficient if the homicide takes place at any time with the ―res gestae‖ of the other felony, and this includes all acts in the immediate preparation, actual commission, and immediate escape. A few courts require that the homicide occur at the actual moment of technical perfection of the felony (if the felony was a burglary, it must occur during the breaking and entering. The doctrine in its Unlimited Form— People v. Fuller Two guys were attempting to escape a police officer who had observed them stealing tires got into a high speed chase which resulted in an accident that killed the driver of another car. The felony-murder rule imposes strict liability for the deaths cuased by the commission of one of the enumerated felonies, which include burglary, even when the death is accidental. Tire thieves are guilty of murder first after care chase accident kills other driver. o The court might have avoided its undesired outcome if it had found that the killing was not committed in the perpetration of the burglary. LIMITATION TO THE RULE The ―inherently dangerous felony‖ limitation— People v. Howard Howard was convicted of 2nd degree felony murder after killing the occupant of another vehicle while attempting to flee form police in a stolen vehicle, and he appealed his conviction. The 2nd degree felony-murder rule provides that, although malice is ordinarily an element of a murder conviction, murder can be committed without malice if the killing occurs during the commission of an inherently dangerous felony. However, an accidental death occurring during a police chase is not felony murder. o Justification for IDF Rule:“When society has declared certain inherently dangerous conduct to be felonious, a defendant should not be allowed to excuse himself by saying he was unaware of the danger to life.” o Key Question – Abstract Felony Analysis: ―Whether the felony by its very nature cannot be committed without creating a substantial risk that someone will be killed.‖  (Can look at the rule in abstract (majority ) or view by subjective circumstances/facts of case (Minority). The ―independent felony‖ (or merger) limitation— People v. Robertson DF fired shots at two men who were burglarizing his vehicle, purportedly trying to scare them but fatally wounding one of them, and he was convicted of felony murder. A felony-murder instruction is not proper when the predicate felony is an integral part of the homicide, and when, under the prosecution’s evidence, it is included in fact within the offense charged. o THE MERGER RULE:  Did D act with some purpose other than specifically to inflict injury upon the victim?  Is the offense "assault"?  Was there independent felonious purpose?

Killings ―in the perpetration‖ or ―in furtherance‖ of a felony— State v. Sophophone The DF was charged with felony murder after one of DF’s co-burglars was shot and killed by a police officer while fleeing from the scene of the burglary. A DF should not be held responsible under the felony-murder doctrine for the death of a co-felon when the killing was the lawful act of a law enforcement officer acting in the line of duty. o The Agency Approach (Majority) - The felony murder rule doesn't apply if the person doesn't directly cause the death. This stems from "Accomplice Liability Theory". The acts of the person committing the felony are the same as that of a co-felon, but not of a third party. o The Proximate Causation Approach (Minority) - This rule is that someone can be liable. Pursuant to this rule the issue becomes one of proximate causation: if an act by one felon is the proximate cause of the homicidal conduct by [the nonfelon] or the police officer, murder liability is permitted.

Categories of Defenses: Failure of Proof Defense –Because of the conditions that are the basis for the defense, all elements of the offense charges cannot be proven. They are no more than the negation of an element required by the definition of the offenses. - Mistake is an example. If committing incest but, have no idea it prevents the state from proving the required mental state. When recognized it is not considered a general mistake excuse, but only a failure of proof defense. Justifications -The harm caused by justified behavior remains legally recognized harm which is to be avoided whenever possible. In special circumstances that harm becomes outweighed by the need to avoid an even greater harm or to further a greater societal interest. - Ex: someone burns a field of corn before a wild fire hits a town to act as a fire break and save the town. He commits arson, but its for the greater good. Excuses - These are general defenses applicable to all offenses even when all elements are satisfied. It means that while the act was wrong, conditions were such that the action is permissible and the person is not responsible. - If you are paranoid and delusional when you slug your mailman over the head. Burdens of Production and Persuasion – Criminal trials involve two burdens of proof: the burden of production belongs to the party who has the initial responsibility to introduce evidence supporting the matter at issue. - For example, the prosecutor bears this burden as to the elements of the charged crime, and the DF bears this burden as to any affirmative defenses. - The burden of persuasion refers to a party’s obligation to produce the degree of evidence required to prove the facts upon which she relies. PRINCIPLES OF JUSTIFICATION Generally an action may be justified if (1) Necessary to further or to protect an interest at stake and (2) caused only such harm as was proportional or reasonable in view of the harm threatened or the interest to be furthered. Triggering conditions → Necessary & proportional response

Triggering condition: Circumstances which must exist before an actor will be able to act under a justification (e.g., threat of physical force)  Necessary and Proportional Response: o Necessary: act only when and to extent necessary to protect or further the interest at take. o Proportional: places limitation on maximum harm –must be reasonable in relation to harm threatened or interest to be furthered. Self Defense – Generally, a person is privileged to use such force as reasonably appears necessary to defend herself against an apparent threat of unlawful and immediate violence from another. (1) Duty to retreat – Contrary to common law, most American jurisdictions no longer require the DF to retreat before using deadly force. However, a substantial minority of still adhere to the common law rule, requiring retreat before resort to the use of deadly force in self-defense. Of course, there is no duty to retreat where retreat cannot be done safely, or where the attack takes place in the DF’s own home. (2) Aggressor’s right to defense – Generally a person can’t use force to defend herself if she was the initial aggressor in the situation. By beginning the altercation, she forfeits the right to assert self-defense later. However, there are some situations in which a person, although an initial aggressor, may regain her right to act in self-defense. a. Nondeadly aggressor met with deadly force – If the victim responds to the aggressor’s use of nondeadly force with deadly force, the aggressor can use whatever force appears reasonably necessary (including deadly force) to repel the attack. The rationale is that because nondeadly force cannot be met with deadly force, the victim, by responding with deadly force, has threatened unlawfulharm. b. Aggressor withdraws – An aggressor may regain her right to act in selfdefense by withdrawing from the affray. Ordinarily, the DF must actually notify her adversary of the desire to desist, but some jurisdictions hold that even unsuccessful efforts to do so, if reasonable, will suffice. Aggressor’s duty to withdraw— Patterson v. New York DF was convicted of manslaughter (over his argument of self-defense) for shooting and killing Keitt whom he caught stealing the windshield wipers off his wrecked car. The aggressor in a conflict that results in another’s death cannot justify his actions under the right of self-defense. o Retreat to the wall - MINORITY RULE (MAJORITY SAY YOU CAN STAND YOUR GROUND) this is a common law doctrine which forbids self defense if you have a reasonable escape. This is also the MPC rule with the castle doctrine exception and the except that you don’t have to run if the escape available puts you in more danger. o Castle Doctrine – MAJORITY RULE - Peterson said this one overrules the common law doctrine of retreat to the wall. That a man's home is his castle so he didn't have to move and that was his retreat.  While this doctrine is the majority decision it is only applicable when you aren't the aggressor. Peterson tells us that self defense is a creature of necessity. Necessity = Threat Requirements of threat:


(1) Actual or apparent (2) Unlawful and immediate (3) Subjective (actual) and objective (reasonable) belief on part of D ―Reasonable Belief‖ requirement – DF must have believed that the force used was necessary for her own protection, and this belief must have been reasonable (a belief that a reasonable person in the same or similar circumstances would have formed. But, at the same time, an honest and reasonable belief is enough-the defense is still available even though it turns out that the belief was wrong and there was, in fact, no actual need to use force in self-defense. A. Threatened harm imminent – The DF must have reasonably believed that harm was imminent: i.e., that it would be inflicted immediately if she did not act in selfdefense. Thus, it is necessary to consider whether the threatening person was actually present and, if so, whether the person appeared willing and able to injure the DF. B. Threatened harm unlawful – The threatened harm must have been unlawful. This raises the issues of whether force can be used to resist an unlawful arrest an whether one who is the initial aggressor can claim the defense at all. C. Reasonable force – The force that the DF used must have been reasonable. In other words, it must have been no greater than appeared necessary under the circumstances to prevent the victim from inflicting harm. a. Limits on use of deadly force – Deadly force is force used with the intent to cause death or serious bodily injury or that is known by its use to create a substantial risk of death or serious bodily injury. Although there is no absolute prohibition against the use of deadly force in self-defense, there are some special limits on when it may be used. b. Perceived threat of death or serious bodily injury – All courts agree that deadly force may be used in self-defense only if the DF reasonably believed that th other person was about to inflict death or great bodily injury upon them and that deadly force was necessary to prevent the harm. General Requirements— People v. Goetz A frightened (or perhaps angry) man carry an unlicensed pistol shot and wounded four youths after they approached him on a NY subway train and told him to give them $5.00. Before a DF can prevail on a self-defense argument, it must be shown that his ―reasonable belief‖ regarding the necessity to use deadly force comports with a ―reasonable man‖ objective standard. o The common law required an obj. standard of reasonableness when applying selfdefense. The MPC is a more subjective view. What the DF believed. The statue in this case was objective, however, the Df’s personal knowledge and experience must be considered when assessing the reasonableness of the DF’s belief. Objective, subjective, or mixed standard?— State v. Wanrow DF shot and killed a neighborhood man in a confrontation after neighbors asserted that the man (who had previously tried to take DF’s son off his bike and into the man’s house) was a child molester. All the facts and circumstances known to a DF, including those known prior to the

incident and the genders of the persons involved, must be taken into consideration when deciding if a DF’s belief of danger was reasonable. ―Reasonable person‖ standard requires jury to view incident from DF’s point of view. Battered Women Self-defense— o Requirement that threat of harm be ―imminent‖— State v. Norman DF shot and killed her sleeping, intoxicated husband after enduring ever-increasing bouts of his abusive behavior. Trial court did not allow an abused wife to argue self-defense after she killed her sleeping, abusive husband; although the Court of appeals held she could argue self-defense, it was overturned by the state supreme court, which agreed with the trial court. The fact that an abusive aggressor was passive at the moment of his killing does not necessarily preclude a DF from claiming self-defense. A DF must have a reasonable fear of imminent death or great bodily harm before she is entitled to a jury instruction on self-defense. - The case here goes 50/50 with jurisdictions, but no court allows this defense if they hire a third party to do the killing. Two months after Norman entered prison to serve a 6-year sentence her sentence was commuted by the governor. Defense of Others— People v. Kurr After DF’s boyfriend Pena punched DF twice in the stomach, DF, who was pregnant with quadruplets stabbed Pena in the chest, killing him. The ―defense of others‖ doctrine extends to action taken to protect even nonviable fetus from an assault against the mother. MPC 3.05(1) 1) Use of force upon or toward the person of another is justifiable to protect a third person when: (a)The actor would be justified under Section 3.04 in using such force to protect himself against the injury he believes to be threatened to the person whom he seeks to protect; and (b) Under the circumstances as the actor believes them to be, the person whom he seeks to protect would be justified in using such protective force; and (c) The actor believes that his intervention is necessary for the protection of such other person. PRINCIPLES OF EXCUSE Because punishment for crime is based on the existence of a culpable mental state, some allowance must be made for situations where the mental state is affected to preclude formation of the culpable intent. Theories of excuse – No single theory can explain every use of an ―excuse‖ defense. Under a ―causation‖ theory of excuse, a person should not be held responsible for conduct that was caused by circumstances outside of her control (mental illness). A ―character‖ theory posits that a person should be excused if one cannot infer the person’s bad character from his wrongful conduct (robbing a bank because a criminal would kill his child if he did not does not suggest bad character). Under ―free choice‖ or ―personhood‖ theory, a person should not be considered responsible for wrong doing if she lacked the capacity and/or a fair opportunity freely to choose whether to act in a manner which violates the moral and legal norms of our society (certain

conditions might ―harden‖ one’s character and make committing a certain crime appear inevitable.) Duress – Acts committed under the immediate threat of death or serious bodily injury, where there is both reasonable cause to believe and actual belief that such harm is threatened, will be excused. MPC (1) It is an affirmative defense that the actor engaged in conduct because he was ―coerced‖ to do so by the use of, or a threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness is his situation would have been unable to resist. (2) The defense is unavailable if the actor recklessly placed himself in the situation in which it was probable that he would be subjected to duress. It is also unavailable if he was negligent in placing himself in such a situation, whenever negligence suffices for culpability. Continuing threat to family members— United States v. Contento-Pachon DF, a Colombian national acting under duress, swallows balloons filled with cocaine for transport to the U.S. and is arrested at customs. A DF may assert the defense of duress when he acts under a threat of future harm only when the harm is likely to occur so quickly that the DF cannot escape the situation. - Duress – Three Factors: (1) Immediate threat of death or serious bodily injury; (2) Well-grounded fear that threat will be carried out; and (3) No reasonable opportunity to escape threatened harm. The difference between excuses and justification is the utility of your actions. If you were doing it for the greater good. Necessity is a justification. Duress is when another person is forcing you to do something you don't want to do. With excuse, your act is bad.

Defense to murder? People v. Anderson DF and friend kidnapped Margaret Armstrong an DF subsequently killed Armstrong at the direction of friend who threatened to harm DF if he didn’t kill Armstrong. Duress is not recognized as a valid defense to murder nor will it serve to reduce a murder charge to manslaughter. However, it may be a defense to the underlying felony in felony murder cases. Intoxication –Most cases involve voluntary, not involuntary intoxication. Voluntary intoxication is not a defense to a crime. The idea is that the individual has control over drinking. He knows the dangers from doing so, and therefore if he drinks he must accept the consequences. However, evidence of drunkenness may be introduced to show that the DF did not have the requisite intent that is required when specific intent is an element of the crime. For example, murder in the 1st degree requires premeditation and deliberation; intoxication would perhaps negate this. However, where no specific intent is required (such as for involuntary manslaughter), intoxication would be no defense to the crime.

Specific Intent Crimes Commonwealth v. Graves DF while intoxicated and high, burglarized, robbed, and injured an old man who subsequently died from his injuries; DF’s conviction for murder was reversed (and a new trial awarded by the state supreme court. Although voluntary intoxication is not an excuse for unlawful actions, evidence thereof may be introduced to negate the intent requirement of the crime charged. Insanity Competency to stand trial - An accused must be competent to stand trial for a criminal trial to proceed. An accused is incompetent unless he has a "sufficient present ability" to communicate with his attorney "with a reasonable degree of rationale understanding" and has "a rational as well as factual understanding of the proceedings" against him. Dusky v. United States An accused may be found NOT guilty if, at the time of the crime he was so impaired by mental illness or retardation that he was "insane". There is a general presumption of sanity, however, so that an accused must affirmatively raise the defense. Burden of Proof at Trial - Many states require the prosecution to prove beyond a reasonable doubt that the accused was sane at the time of the offense, while most others require the accused to persuade the jury of his insanity by preponderance of the evidence. Post-Trial - A person may not be civilly committed to a mental institution unless they are both presently ill and dangerous to themselves or others. In US. V. Freeman the court explained that criminal law is an expression of the moral sense of the community. Over the years, society has recognized that the three functions of the criminal law - rehabilitation, deterrence, and retribution - are not served when one who is mentally incompetent and found guilty is ordered to serve a sentace in prison. Notably, one who is mentally ill is not necessarily insane or mentally incompetent to stand trial. THE M'Naghten Rule To establish a defense on the ground of insanity it must be clearly proved that, 1. The party accused did not to know the nature and quality of the act he was doing, or 2. That he did not know that what he was doing was wrong. Criticism to the rule: The rule refuses to recognize the volitional or emotional impairments, viewing cognitive element as the singular cause of conduct. It's an all or nothing approach.  It also severely restricts expert testimony depriving the jury of the true mental picture. The rule makes psychologist make moral and ethical judgments. ** To say you must have total incapacity is an unreal limitation. The law must recognize there is no black and white but, only different shades of gray. Model Penal Code 4.01 Commetn at 158 The "Irresistible Impulse" or "Control" This combines both cognitive and volitional components of the defendant’s behavior. The irresistible impulse is considered in terms of complete destruction of the mind. Criticism: the test produce the misleading notion that a crime impulsively committed must have been perpetrated in a sudden and explosive fit. Not after excessive brooding and melancholy by one who is unable to resist sustained psychic compulsion or resist his conduct.

The "Product" Test In 1954 Court of appeals of D.C. declared "an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect." Durham v. United States. So juries could consider all relevant information from medical testimony. Criticism: The "productivity" was a very elusive instruction. It had a tendency to result in expert witnesses' usurpation of the jury function. In US v. Brawner , they concluded that it basically let the experts to the deciding for the jury. Model Penal Code (American Law Institute) Test - Section 4.01 It acknowledges that volitional as well as cognitive impairments must be considered by the jury in its resolution of the responsibility issue. It employ's vocabulary that can be used by the judge, jury, and expert. The uses the word "appreciate" rather than "know" to define understanding as more than just a matter of simple cognition. It also subs "wrongfulness" for criminality. Responsibility it relieved under two circumstances: 1. When, as a result of mental disease or defect the DF lacked substantial capacity to appreciate the criminality [wrongfulness] of his conduct. Or (Cognitive) 2. Lacked substantial capacity to conform his conduct to the requirements of law. (Moral) M’Naghten and the MPC in greater detail. Knowing/appreciating ―wrongfulness‖ of actions— State v. Wilson FACTS: DF shot to death a friend’s father because he thought he was the mastermind of a huge conspiracy to control everyone’s mind, particularly DF’s mind. RULE: Even if a DF appreciates that his action were illegal, if he believes, due to his mental disease or defect, that his actions were morally justified (society would condone his actions if it understood the situation like the DF understands the situation) then he will not be criminally responsible for his actions. Definition of ―wrongfulness‖ for insanity defense includes not only appreciation of legal wrong, but also of moral wrong. Convincing the jury— State v. Green Eighteen year old DF conviction for murder of a police officer was set aside because PL rebuttal evidence was not sufficient to refute the overwhelming proof of Green’s insanity. Prosecution has the burden to prove beyond reasonable doubt a DF’s sanity in order to rebut a DF’s evidence of his insanity. DIMINISHED CAPACITY In some jurisdictions evidence of mental illness that does not establish isanity may still be admissible to prove that the DF did not have the specific intent necessary for the crime charged. Even if the DF may be aware that her act was wrongful and be able to control it, the mental defect may be characterized as diminished capacity and reduce the extent of criminal liability that would otherwise apply.  Mens rea variant  Partial responsibility variant

- MPC 4.02 (1) Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did nor did not have a state of mind which is an element of the offense. Infancy— In re Devon T. DF (almost 14 years old) was caught at school with twenty zip-lock boags of heroin and was convicted with the equivalent of possession with intent to distribute, despite his claim of incapacity due to infancy. Rebuttable presumption of incapacity due to infancy may be overcome with sufficient evidence of a DF’s capacity to distinguish right from wrong. INCHOATE OFFENSES The primary function of attempt is to provide a basis for law-enforcement officers to intervene before an individual can commit a completed offense. The merger doctrine applies, unless statute says otherwise, someone can’t be convicted of both attempt and committing an act. Attempts consist of: 1. Specific intent to commit a crime; and 2. An act in furtherance of that intent, which goes far enough toward completion of the crime - Either would go through with crime, but are stopped, or go through with the it and fail. Dual Mens Rea Requirement of attempt: 1. The intent to commit the acts or cause the result constituting the crime; and 2. Specific intent to commit target offense. People v. Gentry DF was convicted of attempted murder after spilling gasoline on his gf during a fight which then ignited as she passed the stove. Only the specific intent to kill satisfies the intent element of the crime of attempted murder. Under MPC – it is the subjective beliefs that the acts will culminate in the crime. - The "intent principle": individuals should be held criminally liable for what they intended to do, and not according to what actually did or did not occur; - The "belief principle": is that individuals should be judged on the basis of what they believed they were doing, not on the basis of actual facts and circumstances which were not known to them at the time. Substantial steps include: lying in wait, enticing victim to go to place of crime, unlawful entry, possession of unlawful materials, possession of unlawful material near the place of commission, soliciting an innocent agent. Mere preparation does not = attempt The actus reus of attempt is an act that progresses sufficiently towards the commission of the offense. Whether a defendant has done enough in furtherance of his intent to have committed attempt is not subject to any precise rule: TEST: Physical Proximity, Dangerous Proximity, Indispensable Element test (nothing left to prevent crime), Probable Desistance Test (crime completed unless intervening force), Abnormal Step Approach (took a step t where a normal citizen would stop), res ipsa loquitur or unequivocality test (attempt must "speak for itself"), MPC Approach (act constituting a "substantial step" and conduct must be "strongly corroborative" of purpose)

Overt Act-Commonwealth v. Peaslee DF concocted a plan to burn a building and all it’s content, but he changed his mind before the plan was accomplished. Collection and preparation of materials in a room for the purpose of setting fire to them, accompanied with solicitation of another to set fire, is near enough to the accomplishment of the substantive offense to be punishable. Dangerous Proximity Test-People v. Rizzo DF and 3 others planned and looked for a man to rob a payroll from, but they were unable to find him before being arrested. For an act to constitute an attempt it must come very near the accomplishment of the crime. Unequivocal Test-People v. Miller DF was convicted of attempted murder for threatening to kill a man and then later approaching him with a loaded rifle. Whenever the design of a person to commit crime is clearly shown, slight acts done in furtherance of the design will constitute an attempt. Substantial Step-State v. Reeves DF and friend devised and tried to carry out a plan to kill their homeroom teacher and steal her car. When an actor possesses materials to be used in the commission of a crime, at or near the scene of the crime, and where the possession of those material can serve no lawful purpose of the actor under the circumstances, the jury is entitled, but not required to find that the actor has taken a ―substantial step‖ toward the commission of the crime if such action is strongly corroborative of the actor’s overall purpose. Abandonment - An affirmative defense if prevented commission of crime or did a complete and voluntary renunciation of criminal purpose Commonwealth v. McCloskey Prisoner planned a prison breach but abandoned the plan before leaving the prison and attempting the escape. A prisoner contemplating a prison breach, but still within a prison have not yet attempted the act, is in a position to abandon the criminal act voluntarily, thereby exonerating himself from criminal responsibility. ASSUALT Under most jurisdictions you can’t commit attempted assault because assault is an attempt crime. While some do, they are essentially prosecuting people for an attempted attempt. SOLICITATION At common law, it was a misdemeanor to counsel, incite or induce another to commit or to join in the commission of any offense, whether that offense was a felony or a misdemeanor. Solicitation merges into the crime solicited if the later offense is committed or attempted.

Mens Rea - The crime of solicitation requires a showing that the DF acted volitionally and with the intent or purpose of causing the person solicited to commit the crime. Actus Reus - The only act required for the commission of the crime is the counseling, inciting, or inducing of another to commit the offense. State v. Cotton DF wrote letters to his wife which she never received, trying to get her to convince his step daughter not to testify against him at trail. If a solicitor’s message never reaches the person intended to be solicited, the act is criminal, but it must be prosecuted as an attempt to solicit. - Under MPC un-communicated solicitations are guilty of attempt. Additionally, renunciation is an affirmative defense. - CL: renunciation is not an affirmative defense. CONSPIRACY Conspiracy offense performs dual function: 1. Provides an opportunity for earlier official intervention. So if not attempt, conspiracy. 2. Combats the dangers presented by multi-member criminal undertakings. Dual Intent: (1) Intent to combine with others; and (2) Intent to accomplish illegal objective (commit crime) - CL: No Merger under. DF may be prosecuted for both the conspiracy and the substantive crime, and the sentences may be added together on conviction. - Under MPC no merger unless object of the conspiracy or an attempt to commit target offense involved commission of additional offenses not yet committed or attempted. Pinkerton v. U.S. Two brothers were convicted of both conspiracy and the substantive offense even though only one actually participated in committing the offense. Participating in the conspiracy is enough to sustain a conviction for the substantive offense in furtherance of the conspiracy. - Participation in conspiracy = liability for substantive offenses if: (1) Act was done in furtherance of conspiracy; (2) Act was within scope of unlawful project; and (3) Act/result reasonably foreseen as a natural consequence of the unlawful agreement UNDER MPC: can only be prosecuted for offenses they conspire to do. Unilateral approach. Specific intent - Conspiracy is generally held to be a specific intent crime; that is, the DF must have the specific intent to commit the act that is a crime. People v. Swain DF was convicted of conspiracy to commit murder after his friend killed a young boy in a driveby- shooting. A conviction of conspiracy to commit murder requires a finding of intent to kill, and cannot be based on a theory of implied malice. Knowledge is not enough. To be guilty of a conspiracy, one must have more than mere knowledge. DF must in some sense promote the venture, make it her own, or have a stake in its outcome. People v. Lauria

DF ran a telephone answering service, which he knew was used by several prostitutes in their business ventures; DF was indicted with the prostitutes for conspiracy to commit prostitution. The intent of a supplier who knows his supplies will be put to criminal use may be established by (1) direct evidence that he intends to participate or (2) through inference that he intends to participate based on (a) his special interest in the activity, or (b) the felonious nature of the crime itself. Implied or Express agreement - agreement need not be an express or formal one, can be implied from cooperative actions of the parties. Commonwealth v. Azim DF was the driver of a car which two friends jumped out of in order to beat and rob a man walking on the street. Once conspiracy is establish and upheld, a member of the conspiracy is also guilty of the criminal acts of his co-conspirators. - Factors Considered When Proving Conspiracy: (1) Association with alleged conspirators (2) Knowledge of commission of crime (3) Presence at scene of crime; and (4) Participation in object of conspiracy Commonwealth v. Cook DF and his brother met a girl and partied a bit, after which DF brother forcibly raped her in the woods while DF watched. While proof of a tacit agreement to commit a crime may be enough to establish a conspiracy, a DF can’t be convicted of conspiracy solely on evidence tending to show his complicity as an accomplice in the commission of the substantive crime. CL: no act is required beyond the making of the agreement; MPC: requires "overt act.‖ Affects or furthers the objective of the conspiracy. Conversations and planning are not "overt acts." People v. Foster DF devised a plan to rob an old man, however his co-conspirator really had reported him to the police and was just feigning agreement. The Ill legislature encompasses the bilateral theory of conspiracy, which requires the actual agreement of at least two participants. CL: Not guilty unless two people agree and conspire. MPC: unilateral approach, DF would be guilty in foster. Wharton's Rule - Agreement or concerted action is an essential element of offenses. There can be no conviction for conspiracy. Ex: adultery, incest, bigamy, and dueling. Exceptions: (1) When the number of conspirators exceeds the essential participants in the contemplated crime. (2) Where the parties have accomplished their objective, bars conviction for both conspiracy and the completed crime. (3) Rule is merely a presumption of legislative intent. If there is evidence of a legislative intent to impose liability, it controls. Iannelli v. U.S. DF was convicted and sentenced under both the substantive and conspiracy counts for gambling violations. There is a recognizes exception to Wharton’s Rule which permits prosecution and punishment for both the substantive offense and the conspiracy. Gebardi v. U.S.

DF and a woman agreed to go across state lines for illicit purposes in violation of the Mann Act, and the two were charged with conspiracy to violate the Mann Act. A woman can’t be held criminally liable for conspiring to transport herself across state lines for illicit purposes, even where she consents to the substantive offense. People v. Sconce DF hired someone to kill a man but before the murder was carried out he changed his mind and called it off. Withdrawal from a conspiracy avoids liability only for the target offense, or for any subsequent act committed by a co-conspirator in pursuance of the common plan, but liability for forming the conspiracy remains. CL: no defense to conspiracy liability, but withdrawal is defense to substantive offense. Sometimes must communicate to everyone and even possibly dissuade others. MPC: voluntary and complete renunciation is affirmative defense ACCOMPLICE LIABLITY No distinction between principals and accessories before the fact. Accessory before fact can be prosecuted on proof of commission of offense and his complicity therein even if principal is not prosecuted or is acquitted (MPC § 2.06(7)) CL: Person must have given aid, counsel, solicitation, encouragement with the intent to aid or encourage the principal in the commission of the crime charged, or failure to prevent commission of the crime if party has legal duty to do so. Mere knowledge is typically insufficient. MPC: requires state of mind ―the purpose of promoting or facilitating the commission of the offense solicits, aids or agree or attempts to aid in planning or committing, has legal duty to prevent commission. State v. Hoselton DF was charged and convicted as a principal in the first degree for acting as lookout while his friends broke into a boat’s storage locker. The accused’s response that ―you could say‖ he was a lookout, standing completely alone, does not establish that the accused was an aider and abettor by participating in , and wishing to bring about the entering with intent to commit larceny. Dual intent: Act (actual assistance, participation, or failure to fulfill duty to prevent it.) + Dual intent:  Intent to aid  Intent to further the crime (same intent as principal) Riley v. State DF and friend fired shots at a crowd of young people around a bonfire and seriously wounded two of the people, but at trial, the prosecution could not prove which man fired the wounding shots. In proving liability as an accomplice, the prosecution must only show that the accomplice had the required mental state for the underlying substantive offense, as opposed to proving intent to promote the actual forbidden result (higher mens rea). Foreseeable consequence rule-State v. Linscott

DF was convicted of murder, under a theory of accomplice liability, when his friend shot and killed a man the two had intended to rob. Foreseeable Consequence Rule: A) That the actor intended to promote the primary crime and, B) That the commission of the secondary crime was a "foreseeable consequence" of the actors participation in the primary crime. - MPC: Does not support foreseeable consequence rule Abandonment: No abandonment under common law. UNDER MPC: if you neutralize your assistance before the crime is committed then you can't be tried for complicity.

State v. Vaillancourt The DF challenged his indictment and conviction for burglary as he was merely present at the location of the crime and did not participate. Accompaniment and observation are not sufficient acts to constitute ―aid‖ so as to satisfy the elements necessary for accomplice liability or for any other crime.

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