Chapter 4 1/11/08 1:05 PM

← Actus Reus -

Crime contains two components: actus reus and mens rea

Actus reus- no universal definition, some say it’s conduct (e.g.

picking up a gun and firing), some say it’s the result (e.g. one dying)

An act is essential to criminal law.

How far in advance of an act can a statute criminalize conduct. Do

we have to wait until an act occurs? Not necessarily, legislatures

pass statutes that criminalize attempted crimes. So if a man picks

up a rock to break a window, a police officer can grab his arm,

arrest him, and a court can convict him of attempted burglary.

Cannot punish a man’s thoughts.

There is an actus reus for conspiracy. (e.g. voicing the criminal

thought)

Possession is an act in so far as it satisfies actus reus.

Look at the Actus Reus issue separate from other issues.

Voluntary Act - Model Penal Code (MPC) § 2.01

o Martin v. State

Man arrested, intoxicated, in his house. While taking

him to the jail, the police officer drove on the highway.

The man was yelling obscenities, and then convicted

the man for being drunk in a public place.

One of the requirements for the crime is a voluntary

appearance. Here, the man did not voluntarily go into

the public place, but he was taken there involuntarily.

Thus, there was no actus reus.

Part of Due Process is that a D must satisfy every

element of the statute and the prosecution has the

burden to prove beyond a reasonable doubt that D

committed the crime and met all the requirements.

o State v. Utter -

Father, in a drunken stupor, stabbed his son. Does not

remember the incident.

Argues that the so called actus reus was not voluntary,

ergo he is not culpable.

Distinguishing Acts from Omissions-

o Barber v. Superior Court

←

Chapter 5 1/11/08 1:05 PM

← Mens Rea -

Nature of Mens Rea

Note 1: “A person is guilty of ____ if she intentionally does X.” If she

does something recklessly, she is not guilty, b/c she does not have

the specific state of mind required.

o Actus Reus- doing the offense (conduct)

o Mens Rea- intentionally doing the offense (choice)

US v. Cordoba-Hincapie

Regina v. Cunningham

Man stole a gas mane and released gas into the

house. Endangered a woman’s life.

D intended to steal the mane for money, and did

so, releasing gas in the house.

Elements of the Crime-

Conduct

o Actus- administer or cause to be

administered a poison or a destructive

or noxious thing

o Mens- unlawfully and maliciously

o Trial Court Judge told jury to consider

maliciously to mean wicked

o App. Ct. held that maliciously required

either intent or recklessness

Circumstance

Result

People v. Conley

D uses wine bottle, misses intended target and

hits victim. Victim suffers injuries and permanent

numbness of his mouth.

Rule/Statute: A person who, in committing a

battery, intentionally or knowingly causes great

bodily harm, or permanent disability or

disfigurement commits aggravated battery.

Elements:

Conduct - committing a battery

Circumstance - none

Result - great bodily harm, permanent

disability or disfigurement (this is a result

that has to occur, according to the statute)

What does the statute require in regards to the

permanent disability? (mens rea requirement)

Intentionally; OR

Knowingly

How might the jury know beyond a reasonable

doubt that ∆ meets the required mens rea

element? They can look at the circumstances (e.g.

the nature of the instrumentality used, things

said, etc.). It is not an easy task, but it is a

necessary one.

Model Penal Code § 2.02

o Definitions of Mens Rea (purposefully, recklessly, etc.)

Purposely- consciously engages in conduct or produces

a result

Knowingly- is aware of the nature of one’s conduct and

the result of one’s conduct

Recklessly- one is aware that a subst. and unjustf. risk

exists or that a result will come from one’s conduct and

disregards it, one’s disregard must be a gross deviation

from the standard of conduct of a law-abiding person

Negligently- need not be aware, merely should be aware

of the risk (subst. and unjustf.) or result of conduct;

actor’s failure to perceive it involves a gross deviation

from the standard of care of a reasonable person

o MPC recklessness is one in which the finder in fact must find

beyond reasonable doubt that the actor was aware of the risk

in fact and disregarded that risk. Risk must be substantial and

unjustifiable. Jury is involved in determining the nature of the

conduct/risk. Jury must inquire and determine whether actor

was aware in fact.

o MPC negligence is gross negligence. Need not be aware

(distinguished from reckless).

P. 161

o Note 1

A

Vanessa? Purposely

Xavier?

B

Reckless? No under MPC, b/c she genuinely

believed there was no risk

3. “Knowledge” of Attendant Circumstances (The “Willful Blindness”

Problem

o State v. Nations

Underage girl dancing at club, ∆ was charged with

endangering the welfare of a child.

Statute required that ∆ act knowingly.

∆ argues that statutory definition of knowingly

was actual knowledge

∏ argues that definition is that of a high

probability. So called willful blindness.

Ct. reasoned that the legislative intent in enacting

knowingly was for actual knowledge, not knowing

of a high probability. Thus, ∏ did not satisfy

burden of showing actual knowledge.

4. Problems In Statutory Interpretation

o United States v. Morris

Student put worm or virus on the internet.

∏ argues that ∆ doesn’t have to have intentional mens

rea for the loss

∆ argues he does have to have intentional mens rea

Ct. looked to legislative history. Congress did not intend

the required intentional mens rea for access to apply to

damages/loss.

←

1/11/08 1:05 PM

← Elements must be present beyond a reasonable doubt.

← Actus Reus Elements-

Conduct- if she does X

Circumstances- if done at night

Result- death

← Mens rea elements are mental states are related to the actus reus

elements, ergo, what mental state is required to do the actus reus elements.

By having mens rea elements, we are asking the finder of fact to

put himself in the place of the doer, and determine the doer’s

mentally state at the time of the act and determine beyond

reasonable doubt whether the elements were there.

←← Worksheet

Burglary

o Breaking and entering of a dwelling house of another at night

with the intent to commit a felony therein.

Actus Reus-

Conduct: Breaking/Entering

Circumstances: Dwelling House/of Another/at

Night

Result: none

Mens Rea-

Conduct: Purposely

Circumstance: Knowingly

Result: Intent to Commit Felony

Shoplifting

o Willful taking of goods offered for sale by a store with the

intent to convert the goods without paying the purchase price.

Actus Reus-

Conduct: Taking

Circumstances: of Goods/Offered for Sale/by a

Store

Result: none

Mens Rea-

Conduct: Willful

Circumstances: Knowingly for all

Result: Intent to convert w/o paying purchase

price

Reckless Driving

o

Actus Reus-

Conduct: driving

Circumstances: any vehicle

Result:

Mens Rea-

Conduct: Intentional/Wanton disregard for the

safety of persons or property, etc. (reckless)

Circumstances:

Result:

Failure to Provide for a Child

o

Actus Reus-

Conduct: fail to support

Circumstances: child/under 18/legally chargeable,

etc./without good cause

Result:

Mens Rea-

Conduct: Willful

Circumstances: Knowingly

Result:

Chapter 5 1/11/08 1:05 PM

←

← C. Strict Liability Offenses

US v. Cordoba-Hincapie

o Public Welfare Offenses

No mens rea necessary

Staples v. US

o Police raid mans house and find an automatic rifle

o ∏ argues that he did not know it was capable of automatic

firing

o ∆ argues that the statute was strict liability

o Ct. found that Congress did not intend statute to be strict

liability.

Harsh punishment is confirmation to court that

Congress did not intend strict liability

Garnett v. State

o Statutory Rape case w/ mentally handicapped male

o MD’s stat. rape statute does not address the requisite mens

rea to commit stat. rape when the victim is under 14, and the

assailant is more than 4 years older than the victim.

o ∆ argued that he was led to believe, and did believe, that the

female was older than 14, and that b/c of his handicap, was

unable to comprehend that she was younger than 14

o The court held that the legislature intended for stat. rape to

be strict liability criminal offense.

MPC:

o 213.1 Rape

Rape- a male who has sexual intercourse with a female

not his wife is guilty of rape if:

D) the female is less than 10 years old (213.6

makes this strict liability, b/c it spells out that

there is no “mistake of age” defense when the

female is less than 10)

← D. Mistake and Mens Rea

1. Mistake of Fact

o People v. Navarro

Grand Theft

Specific Intent in this case is intent to

permanently deprive the owner.

Trial court instructed the jury that ∆’s

ignorance/mistake must have been reasonable.

This was incorrect.

MPC 2.04 (1)- ignorance or mistake as to a matter

of fact or law is a defense if:

A) the ignorance or mistake negatives the

purpose, knowledge, belief, recklessness or

negligence required to establish a material

element of the offense; or

B) the law provides that the state of mind

established by such ignorance or mistake

constitutes a defense

2. Mistake (or Ignorance) or Law

o IGNORANCE OF THE LAW IS IRRELEVANT TO CULPABILITY

o You can have a mens rea element in regards to illegality, not

traditionally done, but possible.

o People v. Marrero

∏ was visiting NY from CT, where he is a prison guard.

NY statute made it illegal to carry a handgun w/o a

license, but had an exemption for “peace officers.”

∏ argued that he was exempted, and that he relied on

his misreading of the statute.

Criminal Law 1/11/08 1:05 PM

← Modern Role of Criminal Statutes -

Principle of Legality

o Previously Defined Conduct

Crimes have elements/prerequisites

Commonwealth v. Mochan

There are no common law crimes

The legislature defines crimes

Keeler v. Superior Court

Man knees pregnant woman in stomach, and kills

the fetus

Issue: Whether the statutory definition of “human

being” includes a fetus?

The fetus was determined to be viable.

The court looked to what the legislature intended

the term to mean. Penal Code of 1872

Looked to the 1850 passage, b/c the 1872

definition was copied verbatim from the 1850

code. Which intended “human being” to mean

one who was born alive.

Jurisdictional Issue: There is no California common

law crimes as set forth by statute, ergo, the court

has not authority to create law, which it would be

doing by broadening the definition.

Constitutional Issue: Court cannot broaden

definition and apply it retroactively (ex post facto

laws). B/c a person has to have fair notice that

what he/she is doing is criminal.

Constitution doesn’t allow a legislature create

laws to make acts criminal and apply them

retroactively, ergo, the court cannot do as well.

Court considered an expansion of the definition as

creating a new crime. Something it has no

jurisdiction to do.

When is it appropriate for a court to interpret a

statutory definition and apply it to the present

defendant? When it’s expanded definition was

foreseeable to the defendant that his/her behavior

would fall within the definition.

Even jurisdictions that allow common law crimes, those

are usually minor offenses or very specific offenses.

Values of Statutory Clarity

o In Re Banks

Challenge on the constitutionality of NC “Peeping Tom”

statute b/c it was unconstitutionally vague.

Challenging “secretly” and “peeping”

Issue: Was there sufficient clarity in the statute?

General Standard to Measure Vagueness: “men of

common intelligence must necessarily guess at its

meaning and differ as to its application

In determining legislative intent, the court uses indicia

(i.e. purposes appearing from the statute taken as a

whole, the phraseology, the words ordinary or technical,

the law as it prevailed before the statute, the mischief

to be remedied, the remedy, the end to be

accomplished, statutes in pari material, the preamble,

the title, legislative history of an act and the

circumstances surrounding its adoption, earlier statutes

on the same subject, the common law as it was

understood at the time of the enactment of the statute,

and previous interpretations of the same or similar

statutes, etc.)

“Secretly” adds an intent element to the statute. So the

act of looking alone is not criminal, but the act of

looking with the intent to invade one’s privacy.

Chapter 7 1/11/08 1:05 PM

← Definition of Homicide:

Killing of a human being by a human being

Criminal and non-criminal (justifiable & excusable)

← Criminal Homicide

(1) Murder: unlawful killing of another human being with malice

aforethought “with death taking place within a year and a day”

(latter phrase was at common law)

Malice aforethought:

o Now includes a variety of mental states

o What will constitute malice aforethought?

1) Intention to kill even if not premeditated

2) Intention to inflict serious bodily harm

A shoots at B with sole intent to cause serious

bodily injury---B dies from the shot, A has

committed murder

3) Recklessness with respect to:

Death; or

Serious bodily injury

A does not intend to kill B, but is reckless as

to death or serious bodily injury)

4) Intention to commit certain felonies (i.e. felony

murder)

If A is committing felony burglary and kills

someone, the court must determine if the intent

to commit the felony satisfies the malice

aforethought mens rea.

5) Intention to avoid arrest or escape

o All 5 have been held at common law to constitute malice

aforethought.

Most states by statute now classify murder into 1st and 2nd degree

murder

o 2nd Degree- killing with malice aforethought

o 1st Degree- other elements may be necessary to charge with

this degree

or legislature may separate one of the common law

types of murders from before (1-5) and place it under 1s

degree for higher penalty

premeditated- deliberation is often a factor in 1st

degree

killing with mere intention to kill is often 2nd

degree

legislature selects other situations in which killing

constitutes 1st degree, though there could be

constitutional issue

← Manslaughter- Killing w/o malice aforethought

1) Voluntary- sometimes called mitigated murder

o 1- Provocation

A assaulted by B, A loses control and kills B

Sudden quarrel or heat of passion

o 2- Imperfect Defenses

2) Involuntary- w/o malice aforethought

o 1- Negligence

Criminal negligence

o 2- Unlawful Act doctrine

Misdemeanor manslaughter

B. Intentional Killings

1) Degrees of Murder: The Deliberation-Premeditation Formula

o State v. Guthrie

∆ killed co-worker. ∆ had some psychiatric issues, and

the victim had flicked him on the nose with a towel.

∆ stabbed co-worker, killing him.

o Midgett v. State

∆ regularly beat his son. On one such occasion, the

injuries sustained injuries that led to the son’s death.

Rule: Duty of the court is to give those accused of first

degree murder the benefit of the requirement that they

be shown by substantial evidence to have premeditated

and deliberated the killing.

∆ must have had the intent of killing his son vs.

beating/injuring him.

“The evidence in this case supports only the conclusion

that the appellant intended not to kill his son but to

further abuse him or that his intent, if it was to kill the

child, was developed in a drunken, heated, rage while

disciplining the child. Neither of those supports a finding

of premeditation or deliberation.”

Court lowers the conviction from first degree to second

degree based on the theory of intent to cause serious

physical injury.

o State v. Forrest

Son euthanized his father in the hospital. Father was

terminally ill.

Rule: First degree murder is the intentional and unlawful

killing of a human being with malice and with

premeditation and deliberation.

Circumstances to be considered:

Want of provocation

Conduct and statements of ∆ before and after

killing

Threats and declarations of ∆ before and during

incident

Ill-will or previous difficulty between parties

Dealing of lethal blows after deceased has been

rendered helpless

Evidence that the killing was done in a brutal

manner

2. Manslaughter: “Heat of Passion” Killings

o a. Common Law Principles

o Girouard v. State (Provocation)

Wife provoked ∆ by saying he was a lousy fuck. She

jumped on his back and pulled his hair. ∆ stabbed her

19 times.

Issue: Whether words alone are provocation adequate

to justify a conviction of manslaughter rather than one

of 2nd degree murder?

Holding: NO

Words can constitute adequate provocation if they are

accompanied by CONDUCT indication a present

intention and ABILITY to cause ∆ bodily harm

Wife was incapable of causing ∆ bodily harm, thus,

there was not adequate provocation to mitigate murder

to manslaughter

Standard is whether reasonable person would have lost

control

o Note 6

Should mitigation transfer when the non-provoking

party who was killed was killed intentionally?

Traditionally, if the non-provoking party was killed

accidentally, mitigation was transferred, along

with intent to kill.

C. Unintentional Killings: Unjustified Risk-Taking

2nd Degree Murder w/ Implied Malice- when person acts the

Murder/Involuntary Manslaughter=Recklessness/Criminal

Negligence

If you’re in a depraved heart district, the jury will have to determine

what a depraved heart was, usually a “I don’t care” mentality.

Usually a gross deviation worse than negligence.

Berry v. Superior Court

o ∆ had fighting dog tethered to side of house. Dog killed a 2 yr.

old

o Rule: 2nd Degree Murder is defined as the unlawful killing of a

human being with malice aforethought, but w/o the additional

elements—i.e. willfulness, premeditation, and deliberation—

that would support a conviction of 1st Degree Murder.

Malice can be implied “when no considerable

provocation appears, or when the circumstances

attending the killing show an abandoned and malignant

hear.

o

State v. Hernandez

o Involuntary Manslaughter

Mens Rea- Negligence

o Prosecution introduced “stickers” with drinking “slogans” on

them. Arguing that the stickers showed ∆ was aware of the

risk he was creating. In a sense, that he knew drinking such

large amounts of alcohol would distort his reality and driving

skills.

o Rule: Criminal Negligence- A person acts with criminal

negligence or is criminally negligent when he fails to be aware

of a substantial and unjustifiable risk that circumstances exist

or a result will follow, and such failure constitutes a gross

deviation from the standard of care which a reasonable

person would exercise in the situation.

o State v. Williams

Parents were convicted of manslaughter b/c they

negligently failed to supply their 17-month child with

necessary medical attention, and as a result, the infant

died.

← D. Unintentional Killings: Unlawful Conduct

1. The Felony-Murder Rule

a. The Doctrine in its Unlimited Form

ALI, MPC and commentaries

People v. Fuller

∆s were involved in a high speed chase brought

on by burglary. ∆s ran red light and struck car,

killing driver. ∆s are charge with first degree

murder.

Rule: Felony-Murder Rule

Immediate flight is often regarded as the

continuation in the felony

Ct. found that the ∆s were guilty of first degree

murder

In this case, legislature said burglary is one of the

felonies it included in the statute, thus the Court

was no allowed to inquire whether the felony was

one with inherent danger involved.

There is a split on how to determine inherent

dangerousness. Can look at it in the abstract,

others will allow the jury to look at ∆’s conduct.

Look at fact patterns and explore alternate

theories of culpability.

b. The Policy Debate

c. Limitations on the Rule

i.

ii. The “Inherently Dangerous Felony” Limitation

Felony-Murder by its very nature to punish as

murder those who commit felonies and someone

dies as a result..

People v. Howard

Tahoe case

iii. The “Independent Felony” (or Merger) Limitation

Whether the predicate/felony is sufficiently

independent of murder that it can be used to

supply the required intent.

Sufficiently independent of killing alone.

Death has to be sufficiently related to the

felony.

A hits B intentionally over the head, and B dies.

Prosecutor decides that one who intentionally hits

another over the head commits assault/battery (a

felony). Wants to pursue felony-murder, arguing

that the assault provides the intent needed.

People v. Robertson

Man negligently shoots at trespassers

Negligently discharging firearm, when the

actor does not intend to kill, is independent

enough to use in felony-murder.

Dissent:

o

Notes:

o 3.

A) robbery= sufficiently

independent

B) burglary (in which the felony

that the intruder intends to

commit inside is assault with a

deadly weapon)= insufficiently

independent

C) burglary (in which the felony

that the intruder intends to

commit inside is theft)=

sufficiently independent

D) child abuse= depends on the

kind of abuse

E) discharging a weapon at a

inhabited dwelling=

insufficiently independent

FEW CRIMES MERGE!!!!

Usually assault crimes

iv. Killings “in the Perpetration” or “in Furtherance” of a

Felony

A and B enter market intending to commit armed

robbery. They commit the robbery and A kills the

cashier.

Obviously, with regards to A, we could find

mens rea elements or felony-murder, but B

will also be guilty of murder as if he had

pulled the trigger himself, through felony-

murder theory.

State v. Sophophone

∏ and accomplice are fleeing from

aggravated robbery. ∏ is apprehended and

put is squad, subsequently, co-felon is

caught and killed by officer

∏ is charged with felony-murder

Who does the killing AND who is killed are

separable

o Here, a law enforcement officer killed

a co-felon, a co-felon did not kill an

innocent victim, and a non-felon did

not kill a felon or innocent victim

o If the death is the death of the co-

felon, the question is whether the

legislature intended the felony-murder

rule to apply to a felon whose co-felon

was killed by a third party

o If an innocent victim is killed by a co-

felon, then felony-murder will almost

always apply

o Special Situation that is treated

different even in agency jurisdiction

A and B go into market to rob it.

A grabs innocent person and

uses as shield. Person behind

counter shoots at A and kills

innocent bystander.

Here, the proximate cause

approach will be used, it is

an exception to the

agency rule. Felon here

sufficiently participated in

the killing.

Human shield exception is

very narrow, applies only

to particular set of facts

(i.e. felon using human as

shield)

Ct. adopts the Agency Approach, whereas

the killing must come from the hands of the

felon

Proximate Cause Approach will look to

foreseeability

o Is this third party action sufficiently

foreseeable given the nature of the

felony?

Note 3

o Some states, like New Jersey, write

statutes that are specific as to when

felony-murder will apply.

NJ- felony-murder applies when

“the actor, acting either alone or

with one or more other persons,

is engages in the commission of

[an enumerated felony] and in

the course of such crime or of

immediate flight therefrom, any

person causes the death of a

person other than one of the

participants.”

If no felony-murder culpability exists, can

you go to other theories of culpability?

o Of course.

o A and B enter a liquor store to rob it. C

remains in the car. A told Mr. W to put

the money in the bag, and also

directed, him not to move or A would

shoot. Mrs. W shoots B.

o A and C are charged for B’s death.

o Ct. did not apply the felony-murder

doctrine, but did find that A’s conduct

in store was malicious/reckless

2. Unlawful-Act Manslaughter (The “Misdemeanor Manslaughter” Rule)

o Alternative theory for common law involuntary manslaughter

2 alternatives

misdemeanor manslaughter

negligent homicide

MPC does not recognize felony-murder

Chapter 9 1/11/08 1:05 PM

← C. Principles of Justification

← 5. Necessity (“Choice of Evils”)

a. General Principles

o Nelson v. State

Necessity:

Act charged must have been done to prevent a

significant evil

There must have been no adequate alternative

The harm caused must not have been

disproportionate to the harm avoided

b. Civil Disobedience

c. Defense to Murder?

o The Queen v. Dudley & Stephens

Is necessity a defense to murder?

NO

The ct. struggles w/ several policy issues.

There is a bright line where the defense of necessity...it

is at the taking of a life. PERIOD.

D. Principles of Excuse

1. Why Do We Excuse Wrongdoers?

2. Duress

a. General Principles

o US v. Contento-Pachon

∆ thought he was going to a job interview, but was

instead asked to be a drug mule. ∆ declined, and drug

dealer threatened ∆’s wife and child. ∆ agreed to run

drugs. ∆ did not turn himself in in Columbia or Panama.

Caught in US when he was x-rayed.

Issue: Whether ∆ can employ the defense of duress?

Holding: YES

Rule:

3 Elements of Duress:

Immediate threat of death or serious bodily

injury,

A well-grounded fear that the treat will be

carried out, AND

No reasonable opportunity to escape the

threatened harm.

o What alternatives are available under duress that are not

available under necessity?

Reporting to authorities- not possible under necessity

b/c the forces are natural

Fleeing/Avoiding the Situation

Resisting the Threat

B. Necessity v. Duress

o Duress is usually classified as an excuse instead of a

justification

o People v. Unger

∆ escaped from prison. ∆ was threatened w/ death b/c

he had reported a previous assault. ∆ said he left the

“honor farm” (minimum security prison) to save his life.

Issue: Whether it was error for ct. to instruct jury to

disregard ∆’s reasons for escaping AND to refuse to

instruct jury on defenses of duress and necessity?

Holding: YES

Most jurisdictions take the approach that duress is not

available for murder, possibly not for any homicide.

← 3. Intoxication

2 types in criminal law:

o voluntary

o involuntary

Specific Intent- intent to bring a/b a certain result

o Also, one has knowledge of the illegality

Some won’t let evidence in for vol. intox. defense

MPC approach:

o Allows evidence of VI to negate an element of the offense.

o One exception in subsection 2. Where recklessness

established an element of the offense, if the actor, due to self-

induced intoxication, is unaware of a risk of which he would

have been aware had he been sober, such unawareness is

immaterial.

Thus, if you’re dealing w/ recklessness, but the reason

for ∆’s lack of awareness of the risk is due to his

voluntary intoxication, ∆ cannot use VI as defense

Commonwealth v. Graves

o

← 4. Insanity

← c. Struggling for a Definition: The Tests of Insanity

State v. Johnson

o Insanity defense, in any jurisdiction, will provide an excuse.

The idea is to not punish ∆ b/c ∆ is not culpable enough.

o 4 Tests of Insanity: everyone requires a diagnosable mental

disease/defect, this creates the battle of the experts

M’Naghten Rule (2 prongs: cognitive and moral)

Cognitive- ∆ does not know the nature and quality

of the act he was doing (cognitive incapacity)

Moral- ∆ does not know right from wrong (moral

incapacity)

If ∆ meets either of the prongs, he can invoke the

insanity excuse

“Irresistible Impulse” or “Control” Test:

Though a person knows the act is wrong, he is

yet, by an insane impulse, irresistibly driven to

commit it, the law must give to this condition its

exculpatory effect.

The delusion proceeding from a diseased

mind so subverts his will as to destroy his

free agency by rending him powerless to

resist by reason of the duress of the

disease.

“Product” Test (Durham Test):

An accused is not criminally responsible if his

unlawful act was the product of mental disease or

mental defect.

Unpopular test. Only followed in New Hampshire.

Test was eventually abolished, b/c juries were

heavily relying on expert testimony.

MPC Test: (Cognitive Element of M’Naghten and

“Irresistible Impulse”) Cognitive and Volitional

∆ lacks substantial capacity to appreciate the

criminality/wrongfulness of his conduct

(M’Naghten); OR

to conform his conduct to the requirements of law

(“Irresistible Impulse”)

Every jurisdiction will attempt to define what is a

sufficient mental defect.

Chapter 10 1/11/08 1:05 PM

← A. Overview

← B. Attempt

1. General Principles

o Attempt crimes were created to allow the police to intervene

before a crime is actually committed

o One cannot be convicted of an attempted crime and the

complete crime. (Doctrine of Merger)

o A sees B from a distance. A pulls out a rifle, but the rifle

misfires.

Is A guilty of homicide? NO

Is A guilt of attempted homicide? Maybe/Probably

o The reason for punishing one for attempting a crime w/o

actually causing harm is to prevent that person from

attempting the crime in the future

o Law of Attempt is Mens Rea Oriented

o Must have the mens rea of the target offense

2. Grading Criminal Attempts

o Prevalent approach is to grade the attempted crime less than

the complete crime

o Also graded in relation to complete crimes. Thus, attempted

murder will be graded more severely than attempted robbery

3. Mens Rea

o People v. Gentry

Jury was instructed that any of the mens rea elements

for murder (i.e. intentionally, knowingly, or recklessly)

were sufficient to be convicted of attempted murder

Rule: To be convicted of attempted murder, the ∆ must

have the specific intent to kill. No other mens rea will

suffice (e.g. knowingly, recklessly, negligently).

4. Actus Reus

o Which test will your jurisdiction use?

The Physical Proximity Doctrine- the over act required

for an attempt must be proximate to the completed

crime, or directly tending toward the completion of the

crime, or must amount to the commencement of the

consummation (how close to completion is the actus

reus?)

The Dangerous Proximity Doctrine- a test whereby the

greater the gravity and probability of the offense, and

the nearer the act to the crime, the stronger is the case

for calling the act an attempt

Model Penal Code Test

Know that courts reject:

The Last Act Test- requires that the ∆ do

everything possible up to the completion of

the crime (e.g. if a man buys a gun

approaches the person he intends to kill,

and aims the gun, he has not attempted

murder…he must pull the trigger to be

guilty of attempted murder)

Equivocality Approach- does ∆’s action

speak criminality, if the actus reus is

susceptible to a non-criminal interpretation,

it cannot satisfy the actus reus necessary

for attempt

o Commonwealth v. Peaslee

Attempted Arson

Set up flammables to burn a building. Consulted a third

party to set the fire, third party refused. On his way to

set the fire, ∆ changed his mind.

o People v. Rizzo

Men were planning to rob a man. Drove around town,

but never found him.

Probably a better example of a proximity approach v. a

dangerous proximity approach

Ct. found that there was no attempt b/c the intended

victim/target was never present

o State v. Reeves

5. Special Defenses

o A. Impossibility

Factual Impossibility- occurs when ∆’s intended end

constitutes a crime but he fails to consummate it b/c of

a factual circumstance unknown to him or beyond his

control

There is a split among authority regarding factual

impossibility. Some will follow the MPC 5.01 (1) (a)

and some will say that it is

Legal Impossibility:

Pure Legal Impossibility- applies when an actor

engages in conduct that he believes is criminal,

but is not actually prohibited by law

Hybrid Legal Impossibility- exists if ∆’s goal was

illegal, but commission of the offense was

impossible due to a factual mistake by him

regarding the legal status of some factor relevant

to his conduct

o People v. Thousand

∆ was charged with attempted distribution of obscene

material to a minor

∆ sent a picture of a male genitalia to an under cover

cop pretending to be a minor

Issue: Whether the defense of “impossibility” is

permissible for a charge of attempt?

Holding: NO

Reasoning: attempt statute only requires a showing of:

1) intent to commit the prohibited offense; AND 2) an

act toward the commission of that offense. The notion

that it would be “impossible” for ∆ to have committee

the completed offense is simply irrelevant to the

analysis.

o B. Abandonment

You have to look at abandonment differently w/ each

case

Commonwealth v. McCloskey

Prison abandons a escape

Charged w/ attempted prison breach

You cannot abandon a completed crime (e.g. you

can’t claim abandonment after you kill someone)

Ct. held there was no attempt, b/c he actions were

merely preparatory, not perpetrating

Concurring: thinks it sound to apply abandonment

retroactively, but traditional approach is that

abandonment is not a defense for a completed

offense or attempted offense. But can be

considered when there is abandonment after one

has reached the point of attempt

Once a ∆ has gone so far as to have committed a

punishable attempt, the crime is “complete” and he or

she cannot then abandon the crime and avoid liability

anymore than a thief can abandon a larceny by

returning the stolen goods

Note 5: Some cts. will say that once a (social) harm as

been sustained there is no defense of abandonment

C. Assault

← D. Solicitation

In some jurisdictions, solicitation is enough to constitute an attempt.

Note 6 (p. 808)

o Know approaches 1 & 4

1) Treats every solicitation as a specific type of attempt

to be governed by ordinary attempt principles, the

solicitation being an over act that alone or together with

other overt acts may surpass preparation and result in

liability

4) No matter what acts the solicitor commits, he cannot

be guilty of an attempt b/c it is not his purpose to

commit the offense personally

State v. Cotton

o ∆ was in jail and wrote a letter to his wife to persuade his

stepdaughter to not testify against him. ∆ gave cellmate the

letter to mail. Cellmate gave letter to the police. ∆ eventually

wrote another letter, again asking wife to persuade

stepdaughter, which was never sent.

o Issue: Can ∆ be convicted of solicitation?

o Holding: NO

o Rule: A person is guilty of criminal solicitation if, w/ the intent

that another person engage in conduct constituting a felony,

he solicits, commands, requests, induces, employs or

otherwise attempts to promote or facilitate another person to

engage in conduct constituting a felony within or without the

state.

o Reasoning: State purposefully adopted version of MPC w/o a

certain provision that states, “conduct ‘designed to effect’

communication of the culpable message is sufficient to

constitute criminal solicitation and there is therefore no need

for a crime of attempted solicitation.” By omitting this

language from the State’s statute, the legislature did not

intend uncommunicated solicitations to constitute solicitation.

E. Conspiracy

1. General Principles

o At common law, the agreement alone was the actus reus, but

many modern statutes require an overt act along with the

agreement. Overt act must be in furtherance of the offense.

o Conspiracy, traditionally, does not merge with the target

offense.

o There is a philosophy that when there is a group agreement

culminating in criminality, there is a higher possibility of social

danger.

o Crucial Questions:

Who agreed?

What was agreed to?

o People v. Carter

Conspiracy- a partnership in criminal purposes, a mutual

agreement or understanding, express or implied,

between two or more persons to commit a criminal act

or to accomplish a legal act by unlawful means

o Pinkerton v. United States

Jurisdictions, in the states, are split on whether to adopt

the Pinkerton approach

This rule is the rule in the federal system.

Two brothers were convicted of substantive tax crimes

and conspiracy. ∆ argues that he took no part in the

substantive crimes (no actus reus), b/c he was in jail.

Rule: So long as the partnership in crime continues, the

partners act for each other in carrying it forward. “An

overt act of one partner may be the act of all without

any new agreement specifically directed to that act.”

Had ∆ withdrawn from the conspiracy, then ∆ would not

be culpable.

∆ is guilty of conspiracy and liable for any foreseeable

act done by a co-conspirator in furtherance of the

conspiracy.

The theory of Pinkerton is if a group sets in motion a

series of acts that lead to a crime, you don’t ask if ∆ has

purpose or knowledge of the crime. It need not be

shown. You are asking different questions.

What was the conspiracy, what was the nature of

the conspiracy, where the crimes foreseeable?

Only those who were co-conspirators are susceptible to

the Pinkerton Approach.

There is no requirement that one subject to Pinkerton

Approach be a major participant/conspirator.

o A&A v. Pinkerton (p. 815, Note 3)

A and B conspire to rob banks. B, unknown to A, steals a

car and then robs a bank.

A&A- for bank robbery

Did he have mens rea?

o Knowledge?

o Purpose?

Did he encourage?

Pinkerton- for bank robbery

Is he a co-conspirator?

Was the bank robbery foreseeable?

A&A- for car robbery

Did he have the mens rea?

o Knowledge?

o Purpose?

Did he encourage?

Pinkerton- for car robbery

Is he a co-conspirator?

Was the car robbery foreseeable?

Was it done in furtherance of the

conspiracy?

2. Mens Rea

o People v. Swain

2 ∆s were involved in a crime. ∆ helped kicked a door in,

and then abandoned

Issue: Whether ∆’s withdrawal was effective?

Holding: NO

Rule: the crime of conspiracy is defined as two or more

persons conspiring to commit any crime, together with

proof of the commission of an overt act by one or more

of the parties to such agreement

o Note 2 (p. 821)

CA Ct.- If there is a sufficient agreement, we will

consider that to be premeditation

o The agreement must be proven beyond a reasonable doubt

o People v. Lauria

∆ ran a message service. He knew that prostitutes used

it for business.

Issue: Was there an intent to further?

Holding: NO

In this case, it is harder to prove conspiracy than aiding

and abetting.

3. Actus Reus

o Commonwealth v. Azim

∆ drove co-conspirators after they assaulted and robbed

victim

Rule: Conspiracy may be inferentially established by

showing the relationship, conduct, or circumstances of

the parties, and the overt acts on the part of the co-

conspirators have uniformly been held competent to

prove that a corrupt confederation has in fact been

formed.

o Commonwealth v. Cook

∆ and principal invited victim to join them, in a public

place, and have some beer. The two men introduced

themselves to the victim. All three were walking to the

store when the victim tripped. At that moment, the

principal jumped on the victim and raped her. ∆ did not

try to stop, but did make encouraging remarks.

Obviously an accomplice, but is ∆ a co-conspirator?

Holding: NO

The evidence does not lead to an inference of an

agreement. The facts show more of a chance encounter,

and a spontaneous decision by the principal to rape the

victim.

4. Conspiracy: Bilateral or Unilateral?

o Traditionally, conspiracy was bilateral. It needed at least two

culpable conspirators. Did not have to know all the players,

but there was no unilateral conspiracy.

o People v. Foster

∆ approached another about robbing an old man. The

potential co-conspirator had no intent to participate in

the robbery.

Issue: Whether the Illinois legislature intended to adopt

the unilateral theory of conspiracy?

Holding: NO

Rule: Bilateral Theory of Conspiracy- there must be at

least two culpable parties for there to be a conspiracy.

Reasoning: The legislature did not intend to adopt the

unilateral theory of conspiracy. Looking at legislative

history did not indicate that they were clearly making

the change. Illinois already has a solicitation statute,

which encompasses the actions of unilateral conspiracy.

Proponents of the Unilateral Theory argue that the actor

has the mens rea necessary, so there’s no need to

require another party.

o If one is indicted on conspiracy, but one party is unidentified.

Can the one known be convicted? Yes, but the prosecution will

need to show there was an agreement beyond a reasonable

doubt

5. Scope of an Agreement: Party and Object Dimensions

o In jurisdictions that require an overt act as part of conspiracy,

an overt act of one co-conspirator will apply to ALL co-

conspirators

o Kilgore v. State (Chain and Wheel Conspiracies)

Hearsay evidence was allowed in lower court

Should not have been b/c the hearsay exception for

conspiracy is only admissible if comment comes from a

co-conspirator. In this case, Benton was not a co-

conspirator w/ ∆, ergo, the hearsay evidence is

inadmissible.

Rule: The testimony could only be admissible under the

exception to the hearsay rule which provides that the

out-of-court statements of one conspirator are

admissible against all conspirators

Did ∆ know a/b the previous conspiracy?

NO, ergo there is no conspiracy

∆ must reasonably know of the other conspiracy

to be considered a co-conspirator

o Braverman v. United States

o Iannelli v. United States

Chapter 11 1/11/08 1:05 PM

←← A. Accomplice Liability

← 1. General Principles

a. Common Law Terminology and Its Significance

o State v. Ward

Historical background on the distinction between

principal and accessory

o Suppose A tells B that he is going to rob the store. B says,

“OK. I’ll stay in the car.” A robs the store

A is the principal (in the 1st degree)

B is an accessory (principal in the 2nd degree)

If C donated his car for the robbery the day before, then

C is an accessory before the fact

A is guilty of larceny

B can also be guilty of larceny

C can also be guilty of larceny

Most states have enacted statutes that hold a principal

in the 2nd degree and an accessory before the fact can

be punished just as harshly as the principal in the 1st

degree

o There is no crime for accessory. It is a theory to show

culpability

o An accessory after the fact, will not be as culpable as a

principal in the 1st or 2nd degree OR as an accessory before the

fact

b. Theoretical Foundation: Derivative Liability

2. “Elements” of Accomplice Liability: In General

State v. Hoselton

o ∆ was w/ friends. ∆ did not know they intended to steal. They

did. ∆ remained at end of barge, went to car when he saw

they were stealing, and never received any of the stolen

goods.

Notes (p. 866)

o 3.

A. NO

B. NO

C. YES

D. YES

E. YES

F. YES, MPC § 2.06 (3) (a) (iii) omission

← 3. Mens Rea

a. Intent: “Purpose” or “Knowledge”?

o When talking a/b accessorial liability, you are saying the

accessory is just as guilty as the principal

Does he have to know or does he have to have the

purpose?

Real issue is what do you need as a prerequisite to say

that an accessory is guilty of the same crime as the

principal?

o Person sitting in car has to have intention to aid

o People v. Lauria

∆ ran a message service that 3 prostitutes used. ∆ knew

that they were prostitutes and still allowed them to use

his service (in jurisdiction that follows the knowledge

requirement, ∆ would be an accessory).

This jurisdiction follows the purpose requirement.

TN is a purpose jurisdiction

← 4. Actus Reus

The actus reus component of accomplice liability is clear cut, e.g.,

the secondary party solicited the offense, furnished an

instrumentality used in the commission of the crime, or provided

other significant active aid in the perpetration of the offense

State v. Vaillancourt

o ∆ stood by as perpetrator attempted to break into house

o Rule: accomplice liability requires the actor to have solicited,

aided, agreed to aid, or attempted to aid the principal in

planning or committing the offense

o “mere presence” does not constitute aiding and abetting

Problem on 885

o Rape in bar. Some patrons did nothing, some cheered, and

the bartender did nothing

Patrons who did nothing are not culpable, b/c they have

no duty to act and cannot be culpable for not acting

Patrons who cheered are culpable, b/c they did act (i.e.

actus reus).

Bartender is culpable b/c he has a duty to act, and

inaction can be punished

Wilcox v. Jeffrey

o Spectator culpability

o Guilty b/c he did not boo at the sax player

State v. Helmenstein

o Testimony given by accomplice must be corroborated

Statute provides that a conviction may not be had upon

the testimony of an accomplice unless his testimony is

corroborated by such other evidence as tends to

connect ∆ wit the commission of the offense, and the

corroboration is not sufficient if it merely shows the

commission of the offense or the circumstances thereof

Husband leaves for work, and wife says “Don’t get caught.” He

embezzles. Is she an accomplice? First need to know her mens rea

Husband to wife, “I plan to kill my mother.” Wife to husband, “I

won’t give you any problem.” Is wife an accomplice? A little

harder to determine

People v. Genoa

o ∆ agreed to finance a drug deal w/ undercover cop. Gave

officer the money. ∆ was convicted of attempted possession

w/ intent to deliver

o Rule: Certain elements must be established to show someone

aided and abetted the commission of a crime. Those elements

are that: 1) the underlying crime was committed by either ∆

or some other person, 2) ∆ performed acts or gave

encouragement which aided and assisted the commission of

the crime, and 3) ∆ intended the commission of the crime or

had knowledge that the principal intended its commission at

the time of giving aid or encouragement

Hypo- innocent party

o Suppose A wishes the victim dead, and says to B, a six year

old child, the victim’s son. A tells B to put poison in victim’s

cocoa, and B does it. In this jur. it is well established that a 6

year old cannot have the requisite mens rea.

Should the law treat A as an accessory to B?

If so, A would get off, b/c B is not culpable. But

under perpetration by means analysis, A is the

principal and B is an unwitting accomplice. A is

using B as an instrument for causing death of V.

This theory would also consider A as the principal

if B is duped (given misinformation), coerced, etc.

Perpetration by Means- if ∆ uses a third party as

an instrument, through coercion, misinformation,

or 3rd party is incapable of having the mens rea to

commit crime, ∆ is the principal. MPC 2.06 (2) (a)

← 6. Relationship of the Liability of the Accomplice to the Principal

a. If the Principal Is Acquitted

o United States v. Lopez

∆ helps break his girl out of prison by landing helicopter

at prison

Issue: Whether ∆ is guilty of A&A if principal succeeds

on necessity/duress defense (justification defense)?

Holding: No

If principal succeeds on justification defense, then no

crime will have been committed, thus ∆ cannot be guilty

of A&A.

o United States v. McCoy

∆ A&Aed a principal in a drive-by, and principal killed

victim. Both are convicted of 1st degree murder.

Principal appeals that he should get voluntary

manslaughter b/c of imperfect self-defense. App. Ct.

reverses both and holds that if principal is convicted of

voluntary manslaughter, ∆ cannot be guilty of 1st degree

murder.

Issue: Whether aider and abettor may be guilty of a

greater homicide-related offense than the actual

perpetrator committed?

Holding: Sometimes YES

Rule: When a person, with the metal state necessary for

an aider and abettor, helps or induces another to kill,

that person’s guilt is determined by the combined acts

of all the participants as well as that person’s own mens

rea. If that person’s mens rea I more culpable than

another’s, that person’s guilt may be greater even if the

other might be deemed the actual perpetrator.

Although joint participants in a crime are tied to a single

and common actus reus, the individual mentes reae or

levels of guilt of the joint participants are permitted to

float free and are not tied to each other in any way.

← 7. Limits to Accomplice Liability

In re Meagan R.

o Rule: although generally a ∆ may be liable to prosecution as

an aider and abettor to commit a crime even though he or she

is incapable of committing the crime itself, the rule does not

apply where the statute defining the substantive offense

discloses an affirmative legislative policy the conduct of one

of the parties shall go unpunished

o The Legislature has dealt with crimes which necessarily

involve the joint action of two or more persons, and where no

punishment at all is provided for the conduct, or misconduct,

of one of the participants, the party whose participation is not

denounced by statute cannot be charged on either a

conspiracy or aiding and abetting theory

People v. Brown

o ∆ helped kick in a door, but then abandoned the crime

o Issue: Whether the withdrawal was effective?

o Holding: NO

o Rule: As an accomplice, to abandon an attempt, ∆ must

abandon before the attempt is completed.

o Here, ∆ did not abandon before the attempt (which was

completed when he kicked the door). So ∆ is an aider and

abettor.

o Crime was attempted burglary

o ∆’s actions were enough for attempted burglary

EXAM 1/11/08 1:05 PM

← Do not worry a/b case names

← At least part of exam is essay, probably most

← How to deal w/ essay fact pattern, in light of fact there are splits of

authority:

Know the MPC approach for each crime/defense.

Organizing answer to take magic out of splits of authority

o Let him know I recognize the splits of authority

Ex- A commits a crime and it turns out to be

impossible. A goes to rob bank, but it is out of business

It is not whether he is guilty of robbery, but guilty

of attempt?

OUTLINE ANSWER (use as checklist)

Some would say that he cannot be guilty of

attempt b/c it is factually impossible for A to

commit crime. Others would hold him guilty

of attempt.

If he asks of culpability, there’s no need to

discuss split.

Discuss the various approaches.

ASSUME THAT COMMON LAW DEFINITIONS APPLY, ESPECIALLY

HOMICIDE (including grading between 1st and 2nd degree murder,

don’t worry a/b MPC grading of homicide)

Don’t let the common law definition of a crime and discussing

varying approaches to culpability.

If there are multiple parties and multiple crimes in a problem, does

not matter whether I address crime-by-crime or party-by-party.

Only allowable abbreviations are ∆ and MPC.

←← Whether the conspiracy is over is determined by the circumstances.

There is no objective test.

←← Entrapment

The notion of entrapment as a defense is a separate matter, there is

a policy against gov’t. manufacturing crime. Where an agent of the

gov’t. essentially creates a crime by instilling the desire to commit a

crime where it did not previous exist.

Issue is predisposition.

← Justification- I chose to do this and it was the right thing to do

Self-Defense

Necessity

← Excuse- concern is whether ∆ was actually choosing

Insanity

Duress

← MPC v. Common Law in regards of duress

MPC has “person of reasonable firmness” language

MPC does not rule out duress for the taking of a life, it is precluded

at common law

Ordinarily one is responsible for putting themselves in the position

of being under duress. Under MPC, you can’t use duress if you

recklessly (aware of risk) put yourself in that position, and if you

negligently put yourself there, you are culpable for negligent

crimes. Under Common Law just asks whether ∆ was responsible for

being in that position.

← Specific Intent- term is used for other selective intents, no clear

definition

←← If a target crime has a mens rea of negligent or reckless can there be

an attempt?

Defensive Force 1/11/08 1:05 PM

← Defensive Force

All said will have a parallel for defending another person

It is frequently state that the person who is not an initial aggressor

(provoking party) and uses reasonable force to subdue an adversary

when he reasonably believes he is in immediate danger or bodily

harm from the adversary and believes the use of such force is

necessary.

Traditionally, a line is drawn between defenders using deadly force

and non-deadly force. It is stated that it is never reasonable to use

deadly force to repel an adversary.

There must be a reasonable apprehension of the danger, and the

defender must so apprehend. Thus, if one would reasonably

apprehend the danger, but the defender did not apprehend, then he

cannot invoke the defensive force defense (thus, the test is

somewhat objective and subjective).

The definition of deadly force is usually in the context of likelihood.

Whether the force is likely to cause death or serious bodily harm?

Usually fact specific.

If aggressor makes a good faith, effective (communicated)

withdrawal, then the aggressor can reclaim the right to the

defensive force defense.

If aggressor initiates, but doesn’t use deadly force, and responding

party uses deadly force, can use deadly force to defend.

Retreat Rule- A minority of jurisdictions hold that before one can

use deadly force to defend, one must retreat.

Causation 1/11/08 1:05 PM

← Felony murder has its own issues/policies of causation

←← Outside of felony murder, causation is an issue that can arise when

you’re dealing with a crime that requires some result to occur.

Does the result occur in a way not intended, contemplated, or

risked?

←← Ask 3 Questions, IN THIS ORDER:

1) Did ∆ have the mens rea required by statute?

2) Whether ∆’s actions constituted an actual cause in fact of that

result?

o If the answer is yes,

o Hypo

Suppose ∆ intends to shoot victim dead. ∆ shoots at

victim, ∏ dies, but of a heart attack.

∆’s actions were the cause of ∏’s death, but was not

intended.

o “But for” test

But for ∆’s conduct, would the result have occurred

If it is no, then you meet the cause in fact

o One exception, very narrow

Suppose 2 parties simultaneously shoot at victim and

bullets hit simultaneously, each would have caused

death

You cannot say but for on either party, but there is still

cause in fact, b/c the law does not want to let either

party get away with their actions

3) Whether the variation between the result intended and the way it

occurred is so different that it would be unjust to hold ∆ culpable?

o Foreseeability is a factor regarding intervening causes

o Kinds of things that can intervene

Actions of 3rd parties

The victim’s actions (e.g. treating a wound)

Actions by natural occurrence

Hypos

o Botched rescue.

∆ wounds victim and somebody comes and tries to help,

but botches it and victim dies

Is ∆ relieved of culpability?

If the intervening act is in response to ∆’s

actions, a ct. is less likely to relieve ∆ of

culpability.

o A shoots at B intending to kill B. B perceives being shot, but it

misses. B runs 5 blocks and is struck by lightning and dies.

Is A relieved of culpability?

Most likely a ct. will consider the lightning so far

removed that A will be relieved of culpability for

INTENTIONAL murder, but A will be guilty of

attempted murder.

o