STRUCTURE OF CRIMINAL LAW!The Civil/Criminal Distinction!

civil law: transfer of wealth!measures inflicted on the offender as compensation!

criminal law: punishment through a variety of mechanisms!measures inflicted on the offenders as punishment!

Kansas v. Hendricks: Pedophile involuntarily committed post-prison sentence did not suffer violation of constitutional rights because detention was not punishment (retributive or deterrent) and therefore not criminal. !

This case draws a distinction between criminal and civil law!The standard for criminal involuntary commitment of the dangerously insane was too high so KA legislature decided that a separate act was necessary!The statute, on its terms, is civil (most statutes declare themselves as one or the other)!

Compared to his initial sentence, which was criminal (punishment)!The court finds too that this statute is civil because the commitment was not used as deterrence (supposing that pedophiles could not be deterred) or retribution!

Basic doctrinal rule: Where there is punishment, there is criminal law. !Considerations:!

Has it been historically characterized as a punishment?!Does it serve the traditional purposes of punishment?!

Examples in Hendricks—incapacitation, moral condemnation & punishment, culpability, conditions of liberty/involuntary confinement!

SC focuses on punishment to distinguish—if measures inflicted on offender can be characterized by court as punishment!Multiple factors—moral condemnation of community. Probably civil if condemnation isn’t attached (except for maybe civil commitment)!Punitive damages—commonly accepted to be criminal in character but not enough to procedurally move into criminal context!Relationship between condemnation and stigma—state labeling criminal as a non-entity!

The Reason for Punishment :: Moral Blame vs. Deterrence - retributivism and deterrence are the biggest!

Retributivism :: punishment is justified because people deserve it!Backward looking theory: attributes crucial importance to the offenders behavior in the past - blameworthiness!Shows respect for the criminal as a human individual?!

Kant: for one man ought never to be dealt with merely as a means subservient to the purpose of another... he must first be found guilty and punishable, before there can be any thought of drawing from his punishment any benefit for himself or his fellow citizens!

Desert Principle :: wrongdoing merits punishment, "the state of affairs where a wrongdoer suffers punishment is morally better than the state of affairs where he does not"!Principle of Proportionality :: a punishment should be proportionate to the crime, no more, no less. i.e. eye for an eye!Drawbacks!

ignores utilitarian aspects (potentially to the detriment of society)!it is unimportant whether the offender is a threat for future offense, or whether punishment is public/private and has the propensity to send a message/deter others!

Utilitarianism :: justification lies in the useful purposes that punishment serves!

Forward looking theory: justifies punishment on the basis of the good consequences it is expected to produce in the future. Punish iff doing so will advance social welfare.!Deterrence:!

Specific: focuses on the individual in question - aim is to deter that particular criminal from committing future acts!General: focuses on the general prevention of crimes by making an example of specific offenders!no taint of bloodlust: no concept of desirable punishment (retributivism), but rather, acceptable punishment to achieve an end!Drawbacks:!

can lead to both under and over punishment in scenarios where punishment wouldn't achieve an end, or where an example is to be made, respectively!catching people may be hard, so an individual that is caught may be severely over punished to deter others!Many criminals commit their crimes in some sort of passion or desperation, or otherwise do not actually calculate/consider the odds of punishment or!

Rehabilitation!Offenders should be punished in whatever way and to whatever extent necessary to reform their character such that they are no longer disposed to commit crimes!Goal: reform, reduction of crime - and a civilized/humane system!Based on an assumption that the offender's character and habits can be changed (questionable)!Nature of the punishment is therapeutic/educational!Humane system: criminal is not evil, but wayward!

society is concerned with the welfare of the offender and ready to forgive those who reform/show remorse!

Objections!Moral blindness? are there certain crimes that should not go unpunished!Substantial evidence against functionality!Certain crimes may be much more conducive to rehab than others!Prohibitively difficult!Paternalism: re-educating people who are anti-social - big brother!Can also be harsh/disproportionate i.e. Hendricks - untreatable, so civil commitment could be indefinite detention!

Incapacitation!Doctrine!

Offenders should be punished to the extent necessary to prevent them, by physical restraint (almost always imprisonment), from committing further crimes.!Like deterrence, incapacitation is an instrumental justification for punishment, aimed at maximizing social welfare.!core function of imprisonment is self-protection of society by separating criminals form the rest of society!

Pros!Works!Small percentage of the population commits large percentage of the crimes, incarceration decreases crime rates!

Cons!Potentially indefinite, recidivism rates go down as people age!

Expressive Theories :: partakes in consequentialism (utilitarianism) and retributivism!

Punishment proceeds from a passionate emotion, the real purpose of punishment is to maintain the cohesiveness of society through societies shared moral outlook!punishing expresses to the community that there are certain standards we adhere to, or certain things we don't do!the crime itself is a communication of degradation with respect to the victim!Kleinfeld feels expressionism is the truth about punishment!

Mixed theories!there is some truth!it is problematic to pick and choose theories on a case by case basis!

there is no critical force with this (ability to say no and disagree with contradictory elements of theories)!

Frame theory: for any crime there is a frame set by retributive principles!ex. for any armed robbery there is a punishment between 1-5 years!

but within this frame, utilitarian principles control - i.e. first time = 1 year, serial offender = 5 year, if not many caught and example to be made = 4 year!

Principles of legality :: No crime without law, no punishment without law!republican spirit!

government controlled by the people with criminal law as a system of laws rather than of men!

basic source of law in criminal law is penal code!criminal law is a state law field with an overlapping federal presence in which the major source of law is statutes in which the statutes are rooted jointly in the common law and the MPC!Modern Role Criminal Statutes!

criminal statutes should be understandable to reasonable law-abiding persons!criminal statutes should be crafted so that they do not delegate basic policy matters to police, judges, and juries for resolution on an ad hoc and subjective basis!judicial interpretation of ambiguous statutes should be biased in favor of the accused - lenity doctrine!

however most states use the rule of fair import giving courts the authority to interpret statutes in a way that does not frustrate the legislative purpose and it neither favors the government or the ∆ (MPC §1.02(3))!

Criminal liability of punishment can only be based on prior legislative enactment setting out prohibition with adequate clarity and precision. (not completely enforced)!Keeler v. Superior Court: Relying on the Legality Principle (Legislativity – no judicial criminal law creation, Prospectivity – retro-activity prohibited), the court determined that the common law definition that a fetus is not a human being meant that the killing of a fetus was not statutory murder, and because there was no feticide statute when it happened, no crime could be found.!City of Chicago v. Morales: A law outlawing loitering with gang members is too vague and general to give fair warning and allows arbitrary enforcement, which breaks the prospectivity and clarity requirements of the Legality Principle and thus the Due Process Clause. No fair notice because the definition of loitering is too vague and general to guide administrative discretion; leaves too much to arbitrary enforcement (excessive discretion)!

Muscarello v. United States: Rule of lenity found to not apply (narrowly construed); majority held that the statute elevating the sentence of a drug transaction if a person was “carrying” a gun was not ambiguous because the general and historical definition of “carry” was clearly inclusive of keeping a gun in a glove compartment of a car.!

ACTUS REUS!MPC Article 2. General Principles of Liability!§2.01 :: Requirement of voluntary act; Omission as a basis of liability; possession as an act!

(1) A person s not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.!(2) The following are not voluntary acts within the meaning of this section:!

(a) a reflex or convulsion!(b) a bodily movement during unconsciousness or sleep!(c) conduct during hypnosis or resulting from hypnotic suggestion;!(d) a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual.!

(3) Liability for the commission of an offense may not be based on an omission unaccompanied by action unless:!

(a) the omission is expressly made sufficient by the law defining the offense; or!(b) a duty to perform the omitted act is otherwise imposed by law.!

(4) Possession is an act, within the meaning of this section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession !

Voluntary Act Requirement: all crimes require a voluntary act, or a voluntary omission under a duty to act!

Why not criminalize thoughts!culpability requires action!

also, difficulties with proof!perhaps we cant know the "content of the heart" without actions!refraining from punishment for thoughts because of a commitment to freedom!Citing various sources of law!

1st amendment!due process!common law custom and tradition!8th amendment rights against cruel/unusual punishment!

Status Crimes!Robinson v. California (California Statute makes it a criminal offense for a person to be addicted to the use of narcotics)!

essentially makes the "status" of narcotic addiction a criminal offense despite the absence of possession or use or any crime committed within the state!analogous to criminalizing having a disease or disorder (but isn't this similar to the pedophile indefinite civil confinement)!hold that a state law which imprisons a person thus afflicted as a criminal, even though he has never touched any narcotic drug within the State or been guilty of any irregular behavior there, inflicts a cruel and unusual punishment in violation of the Fourteenth Amendment.!invalidation of criminalization of a status vs. invalidation of criminalization of an act based on status!

Omissions!Default rule on omissions: omissions are not criminal, not an action!Rule: acts reus requirement means an omission is not an offense unless!

It is expressly criminalized in a state; or!There is a legal duty to act!

Moral duties =/= legal duties!Common law relationships that create a duty to act!

Relationship (employer-employee, parent-child, etc.)!Contract!Statute (such as doing taxes)!Job Duty (such as police)!

an omission is a literal substitute for an act, where there is a duty to act!Common law typically classifies an omission as the act itself, whereas statutory law creates a separate crime for the omission!Jones!

under the common law, ∆ is not guilty of homicide when children (not her own) die in her care, because she has no duty to act.!

Omissions following an act:!If you create a risk, you can be held liable for harm resulting from ...omission of an act to prevent harm from that risk?!If you voluntarily assist someone, you have a legal duty to continue to assist!

Possession :: Court Constructed Interpretation!Rule: Possession requires that the ∆ (1) knowingly procured/received the item or was aware of control over the item (2) for a sufficient period of time to have the chance to terminate possession!method of risk management preventing future wrongs!What counts as possession?!

Standard rule !mere proximity is not enough to make out possession!Possession is based on control!Possession does not require immediate physical custody!possession can be constructive, joint, or both!

Joint possession: two or more people mutually having possession of something!Constructive Possession: Power and intention to exercise control over an object not currently in direct physical possession.!Joint Constructive possession: combine the above!

Policy:!Punishments may be very strong (federal)!Open-ended in its definition and thus highly discretionary!Concern is often with respect to the use of an item, rather than mere possession (which is criminalized) - this approaches a thought crime as the criminal use/action has not necessarily take place.!

This exists because it is often hard, or too late to catch someone after the item has been used!

Possession crimes make up a large proportion of incarcerated individuals!Maldonado :: controlling access to an item by having the key to the hotel room it is inside constitutes constructive possession!

Did Maldonado possess the drugs?!He had the intent to distribute the drugs!had effective control over the drugs!

when a ∆ is in the presence of another's illegal substance, with the effective ability to control that substance and the intent to participate in its distribution, but without actual control, he may still be held to have constructive possession.!

Harm!Social Harm!

Negating something that has a social value—definitional vs. underlying social harm!Unanswered questions—does it have to cause harm to be criminalized? !Harm principle—cannot use social coercion unless the act causes harm to 3rd parties!Criminal law trying to protect certain cultural norms, so this is social. !

Lawrence v. Texas: Criminal penalty for consensual sodomy conducted in private is unconstitutional punishment for a harmless act (NOT SETTLED).!

The court in Lawrence warns against attempts to criminalize conduct "absent injury to a person or abuse of an institution the law protects"!

John Stuart Mill: while society is not founded on a contract... there is essentially an implicit social contract to not injure the interests of another, and to bear the costs (on an equitable principle) of protecting society (taxes for police?)!

Causation!§2.03 :: Causal Relationship between conduct and result; divergence between result designed or contemplated and actual result or between probable and actual result.!

(1) conduct is the cause of a result when:!(a) it is an antecedent but for which the result in question would not have occurred and!(b) the relationship between the conduct and result satisfies any additional causal requirements imposed by the code or by the law deigning the offense!

(2) When purposely or knowingly causing a particular result is an element of an offense, the element is not established if the actual result is not within the purpose or the contemplation of the actor unless:!

(a) the actual result differs from that designed or contemplated, as the case may be, only in the respect that a different person or different property is injured or affected or that the injury or harm designed or contemplated would have been more serious or more extensive than that causal or!(b) the actual result involves the same kind of injury or harm as that designed or contemplated and is not too remote or accidental in its occurrence to have a just bearing on the actor's liability or on the gravity of his offense.!

(3) When recklessly or negligently causing a particular result is an element of an offense, the element s not established if the actual result is not within the risk of which the actor is aware or, in the case of negligence, of which he should be aware unless:!

(a) the actual result differs from the probable result only in the respect that a different person or differing property is injure or affected or that the probable injury or harm would have been more serious or more extensive than that caused or!(b) the actual result involves the same kind of injury or harm as the probable result and is not too remote or accidental in is occurrence to have a jut bearing on the actors liability or on the gravity of his offense.!

(4) when causing a particular result is a material element of an offense for which absolute liability is imposed by law the lament is not established unless the actual result is a probable consequence of the actors conduct.!

Regina v. Martin Dyos ::(Fails "but for test) Can a ∆ be guilty of murder when their act could have been the cause, but another act which cannot be shown to be his own, cannot be proven not to be the cause of death.!

2 wounds were found on RM that could have independently been the fatal blow that it was a reasonable and sensible possibility that the injury behind the ear caused the death, and there was no evidence that MD was responsible for it!

conversely there was no evidence that the injury which MD admitted having caused was in fact beyond a reasonable doubt the cause of death.!

md could only be guilty if death was a natural and probable consequence of his act!

Commonwealth v. Root :: (reckless race car drivers, one went n wrong lane and crashed) - Where people engage in dangerous drag racing one racer cannot be held responsible for another's fatal crash if the other directly caused his death while the first driver only indirectly caused it by racing him.!

Proximate cause cannot be sufficient for criminal liability!"the tort liability concept of proximate cause has no proper place in prosecutions for criminal homicide and more direct causal connection is required for conviction!

Wood :: shot to stomach vs. heart. Defendant lacked but-for causal connection between fatal wound and death of the victim because an intervening event caused the victim’s death more quickly than shot to the stomach!Conditioning liability on causing a result: those who cause actual harm deserve more punishment than those who pose risk of harm!Actual/Factual Causation vs. Proximate/Legal Causation!

both are necessary, neither is sufficient on its own.!analysis for actual should come first!Actual Causation :: established through a but for test!

BUT FOR: but for the ∆'s act, would the harm have occurred when it did!Proximate Causation :: established by multi factor test with a focus on fairness:!

there is no strict rule for proximate cause, there is an analysis of fairness and common sense!a ∆ is responsible for all results that occur as a "natural and probable" consequence of his conduct, even if he did not anticipate the precise manner in which they would occur!

Where prosecution cant prove causation, they can often prove a lesser offense!Causation is generally a jury question!Common law and MPC are different with respect to causation!

both share but for!differ with respect to proximate cause (which is common law language)!

what is causation!but-for causation: necessary conditions or acts but for which the harmful result would not have occurred!

exception for simultaneous sufficient conditions such as two person who simultaneously shoot a victim - this would constitute legal causation!

Violent acts: common law originally required that an act appear violent in order to be perceived as a criminal necessary condition. this was then expanded to include other acts judged to be dangerous, and was then replaced by;!Foreseeability: the requirement of a connection between the actor's culpable mental stationed the result - proximate causation!Intervening Events: an event that might be said to break the chain of causation, if it was a necessary condition for the harmful result!

intervening voluntary actions: common law generally assumed that individuals were the exclusive cause of their own actions (causing one to do harm is not equivalent to causing it oneself, although it may make you complicit)!Temporal Intervals: lengthy interval between cause and result raises a number of problems.!

longer the interval, the more plausible it becomes that but for the s actions the victim might have suffered some other misfortune!longer the interval, the more plausible it becomes that some other uneducated factor has cause the result!advancing medical knowledge, however, has caused most jurisdictions to abandon temporal limits on causation!

Duties: where passive conduct is a necessary condition for a result, it must be combined with a duty(resulting from statute, status, contract, or undertaking) to act to constitute a cause!

increases in the certainty of punishment, deter better than increases in the severity of punishment - thus suggesting that we should punish all culpable acts of risk imposition equally, regardless of whether they happen to cause harm is this merely a theory? how does this with harm?!risk is speculative while harm is indisputable fact!

MENS REA :: criminal liability requires proof of an evil meaning mind with an evil-doing hand.!

History :: As the objective of criminal justice became the punishment of evil doing, mental factors became more relevant than harms alone!

Francis Bowes Sayre!Inquiry into general moral blameworthiness, rather than absolute/strict liability for a harm!

permitting an action against one in possession of stolen goods without regard to wrongful intent!inquiry into whether the actor was morally blameworthy in the sense that the conduct was wicked or evil!focus on ∆ state of mind at the time of taking "taking and carrying away the personal property of another with intent permanently to deprive the other of the property"!

Broad meaning: a general immorality of motive, vicious will, or an evil-meaning mind - general moral blameworthiness. !

Regina v. Cunningham :: ∆ entered cellar and tore out gas meter from pipes to steal coins. consequentially there was a gas leak, nearly killing the occupants.!

statute read: whosoever shall maliciously cause to be administered to or taken by any other person any poison or noxious thing, so as thereby to endanger the life of such person, shall be guilty of a felony"!

it was irrelevant whether ∆ intended to cause injury from the gas leak to the occupants - only important that he acted willfully and wickedly. Then guilty mind for stealing the coins was enough.!

Narrow meaning: the particular mental state provided for in the Denton of an offense.!Rationale for mens rea!

Utilitarian :: Deterrence: a person cannot be deterred from criminal activity, it is argued, unless he "appreciates that punishment lies in store" if he persists in his actions. therefore, punishment of one who lacks a culpable state of mind will be ineffective and, as a consequence, wasteful.!

One who causes harm accidentally, rather than intentionally or with an evil-meaning mind is harmless and not in need of reformation!Counter argument: even if the above is accepted, punishment may serve as a useful warning to others to be more careful in their activities, reducing the number of accidentally inflicted injuries. Also from an incapacitation perspective - if the person is accident prone, society would benefit from being protected from them. Punishment may influence their future behavior

to be more careful etc.!potentially creates a legal loophole as there are evidentiary difficulties with proving mens rea beyond a reasonable doubt!

Common Law General Intent :: Focus on Conduct!a ∆ acted with general intent if he consciously chose the physical acts that constitute the relevant crime - if he meant to do what he did his acts were choices not accidents. (intent in act, not necessarily intent in harm)!Two basic meanings!

intent to do the actus reus (the general conduct that constitutes the crime)!General culpability, general blameworthiness. An unfocussed judgement about the general character and disposition of the actor!

a generally blameworthy attempt to do the acts that constitute the crime!Specific Intent :: Focus on RESULT!

a ∆ acted with specific intent if he tried to cause some injury or to bring about some harmful or legally forbidden result.!

Crime includes an intent or purpose beyond the acts reus of the offense!that the actor has actual knowledge (subjective awareness) of some particular fact or circumstance defined by statute (e.g. receiving stolen property; knowing the property is stolen)!actors conscious object is to cause the harm defined by the offense!

Regina v. Faulkner!∆ a sailor who burns down a boat while intending to steal rum is not guilty of malicious arson because his general wickedness does not make out an intent to commit the prohibited act!

however, if there had been a general intent standard, culpable mental state of stealing would satisfy intent for second offense where a energy morally blameworthy state of mind is enough.!

MPC Purpose, Knowledge, Recklessness, Negligence!§2.02 :: General Requirements of culpability!

(1) Minimum requirements of culpability. Except as provided in section 2.05, a person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.!(2) Kinds of culpability defined!

(a) Purposely. A person acts purposely with respect to a material element of an offense when:!

(i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and!(ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist!

(b) Knowingly. A person acts knowingly with respect to a material element of an offense when:!

(i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist and!(ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.!

(c) Recklessly. A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and

purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.!(d) Negligently. A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor's failure to perceive it, considering the nature and purpose of his standard of care that a reasonable person would observe in the actor's situation.!

(3) Culpability required unless otherwise provided. When the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts purposely, knowingly or recklessly with respect thereto.!(4) Prescribed culpability requirement applies to all material elements. When the law defining an offense prescribes the kind of culpability that is sufficient for the commission of an offense, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the offense, unless a contrary purpose plainly appears.!(5) Substitutes for negligence, recklessness and knowledge. When the law provides that negligence suffices to establish an element of an offense, such element also is established if a person acts purposely, knowingly or recklessly. When recklessness suffices to establish an element, such element also is established if a person acts purposely or knowingly. When acting knowingly suffices to establish an element, such element also is established if a person acts purposely.!(6) Requirement of purpose satisfied if purpose is conditional. When a particular purpose is an element of an offense, the element is established although such purpose is conditional, unless the condition negatives the harm or evil sought to be prevented by the law defining the offense.!(7) Requirement of knowledge satisfied by knowledge of high probabilit. 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, unless e actually believes that it does not exist.!(8) Requirement of willfulness satisfied by acting knowingly. A requirement that an offense be committed willfully is satisfied if a person acts knowingly with respect to the material elements of the offense, unless a propose to impose further requirements appears.!(9) Culpability as to illegality of conduct. Neither knowledge nor recklessness or negligence as to whether conduct constitutes an offense or as to the existence, meaning or application of the law determining the elements of an offense is an element of such offense, unless the definition of the offense or the code so provides.!(10) Culpability as determinant of grade of offense. When the grade or degree of an offense depends on whether the offense is committed purposely, knowingly, recklessly or negligently, its grade or degree shall be the lowest for which the determinative kind of culpability is established with respect to any material element of the offense.!

The code delineates four levels of culpability!purpose: purpose has to do with ∆ conscious objects!knowledge: has to do with ∆'s awareness!recklessness: substantial and unjustifiable risk consciously disregarded by the actor. gross deviation from a reasonable person standard and consciously disregarding a major risk!

negligence: gross deviation from a reasonable person standard - without the requirement of a conscious disregard of a major risk!

one must be proved with respect to each material element of the offense, the question of which level of culpability suffices to establish liability must be addressed separately with respect to each material element!

the nature of the forbidden conduct!Purposely: It is his conscious object to engage in conduct of that nature!Knowingly: He is aware that his conduct is of that nature!

the attendant circumstances!Purposely: He is aware of such circumstances or hopes they exist!Knowingly: he is aware... that such circumstances exist!Recklessly: he consciously disregards a substantial and unjustifiable risk that the material element exists!Negligently: he should be aware of a substantial and unjustifiable risk that the material element exists!

the result of the conduct!Purposely: it is his conscious object... to cause such a result!Knowingly: he is aware that it is practically certain that his conduct will cause such a result!Recklessly: he consciously disregards a substantial and unjustifiable risk that the material element... will result from his conduct!Negligently: He should be aware of a substantial an unjustifiable risk that the material element... will result from his conduct!

Default Rules!under MPC whenever a criminal statute contains no culpability or mens rea standard for that particular element, then the governing standard for that particular element is recklessness.!under MPC whenever a criminal statute contains but a single mens rea term, that term presumptively applies to all elements of the crime, unless a contrary purpose plainly appears!under the MPC the government may always prove the existence of a lower mens rea term by proving the existence of a higher one!Collateral Mental State!

a mental state that stands apart from the definition of the rest of the crime!in statutes that contain such language, the mens rea language is considered separate from the rest of the statute, and if no other standard is specified, the default of recklessness is used!

Cognitive vs. Moral Approach to criminal culpability!MPC 2.02: cognitive fault is deemed inherently more blameworthy!

Criminal Negligence!Common Law Intoxication!

What can be exculpatory?!mistake of fact: maybe, mistake of law: no, voluntary intoxication: maybe, involuntary intoxication: yes!

Voluntary Intoxication is not a defense to crime, but it can be helpful when the crime being charged requires proof of specific intent!

Involuntary Intoxication: is a defense!People v. Hood :: Justice Traynor!

the moral culpability of a drunken criminal is frequently less than that of a sober person effecting a like injury, however, a person who voluntarily gets drunk and while in that state commits a crime should not escape the consequences!Traynor suggests that the distinguishment between general and specific

intent exists solely for dealing with the question of intoxication!Holmes would say that the law requires people to live up to reasonable standards of behavior and punishes them when they fail, whether they could have done better or not.!Montana v. Egelhoff :: due process is not denied to ∆, who killed while extremely intoxicated, where state rules voluntary intoxication evidence inadmissible!

prohibiting the consideration of voluntary intoxication with respect to mens rea can have the effect of deterring drunkenness or irresponsible behavior while drunk.!

also, specific deterrent, ensuring that those who prove incapable of controlling violent impulses while voluntarily intoxicated go to prison!moral perception that one who has voluntarily impaired his own faculties should be responsible for the consequences!

Due Process Issue!requires that, in order to convict, the government Must prove criminal defendants' guilt beyond a reasonable doubt!Montana's bar on intoxication evidence amounts to an evasion of the beyond a reasonable doubt standard: the government gets to prove mens rea without the need to address contrary evidence!due process also requires that the ∆ be permitted to introduce relevant evidence in his defense!

Mistake of Fact!Mistakes of Fact :: As a practical matter, mistake-of-fact doctrine seems designed to require a measure of skepticism about defendants who claim not to have understood what they were doing as a means of defending themselves against criminal charges!

when ∆'s conduct and the surrounding circumstances are used to prove intent - the governing standards are more favorable to the ∆; when the evidence of the ∆'s intent (or lack) comes from the ∆'s own testimony, as in mistake cases, the governing standards tilt more toward the prosecution!mistake must be relevant (ex. thinking dealers name is john instead of mike is not relevant)!Mistake is irrelevant with respect to strict liability crimes!general intent: ∆ mental state with respect to their conduct!

∆ has a valid mistake of fact defense if he made an honest and reasonable mistake thaat negates his culpability!

however if the overall act was morally wrong, or the the intended conduct was legally wrong - still liable!

under the common law there is no distinction between unreasonable mistake(toy knife hypo) and no mistake (what about MPC) MPC uses specific only?!

specific intent: ∆ mental state with respect to the results caused by their conduct!

∆ has a valid mistake of fact defense if he made an honest mistake that negates his culpability (no reasonable requirement)!

United States v. Oglivie!∆ thought he was divorced from panamanian wife, reported his divorce and got remarried. not guilty of false official statements!with respect to bigamy, ∆ mistake was honest, but he did not take the reasonable steps to confirm that he was in fact divorced.!while ∆ creation of divorce decree may be a violation, it is not the violation of altering a public record (more along the lines of fraudulently creating a record)!

United States v. Binegar!People v. Marrero !

Mistake of Law!Ignorantia Legis Neminem Excusat :: ignorance of the law is no excuse!

Exceptions!Reasonable reliance (aka entrapment by estoppel)- if you reasonably rely on an official statement of the law from a state authority and obtained in an official manner, !

Very narrow exception- does not apply to advice from a personal lawyer, nor does it apply to an official/public authority who is not acting in an official capacity!

People v. Marrero (Peace officer carrying firearm)!Penal Law §15.20 effect of ignorance or mistake upon liability!

a person is not relieved of criminal liability for conduct because he engages in such conduct under a mistaken believe that it does not, as a matter of law, constitute an offense, unless such a mistaken belief is founded upon an official statement of the law contained in!(a) a statute or other enactment!(d) an interpretation of the statute or law relating rot the offene, officially made or issued by a public servant, agency, or body legally charged or empowered with the responsibility or privilege of administering, enforcing or interpreting such a statute or law.!

Mistake of law is a viable exemption in those instances where an individual demonstrates an effort to learn what the law is, relies on the validity of that law and, later it is determined that there was a mistake in the law itself!some legal scholars urge that the mistake of law defense be available more broadly where a ∆ misinterprets a potentially ambiguous statute not previously clarified by judicial decision and reasonably believes in good faith that the acts were legal.!in State v. Cutter the court said : re: ignorantia legis... where the law which has been infringed was settled and plain, the maxim in its rigor, will be applied; but where the law is not settled, or is obscure, and where the guilty intention, being a necessary and constituent of the particular offense, is dependent on a knowledge of the law, this rule, if enforced, would be misapplied.!

MPC Intoxication, Mistake!GO OVER DISTINCTION!

Strict Liability!Strict Liability in Criminal Law :: Limit on the mens rea requirement?!

No culpable mental state, it is enough that ∆ performed the act in question regardless of his mental state!

judges may determine whether a particular state was intended by the legislature and should be read in!There is generally a presumption against strict liability!

Public Welfare Offense?!If No !

If analogous to common law – Then read mens rea in (negates strict liability)!Otherwise - Ambiguous what court will do!

If Yes!If Misdemeanor – Then no mens rea, leave as strict liability!If Felony – Then ambiguous; however, MPC would read in Mens Rea!

Overlaps with!Malum Prohibitum: overlaps with strict liability/regulatory offenses !

Mala in Se: overlaps with common law/mens rea!Mostly comes up in areas of federal law!Liability without moral fault (substantive strict liability)!liability without a culpable mental state with respect to the acts reus (formal strict liability)[forbidden by MPC]!

Pure Strict Liability: liability without any culpable mental state with respect to any objective element is pure strict liability!Impure Strict Liability: liability without any culpable mental state with respect to at least one such element!

MPC §2.05: when the state imposes even impure strict liability, the criminal offense may be punished only as a violation. §1.04(5) distinguishes a violation from a crime, by defining the former as an offense punishable only by "a fine, or fine and forfeiture, or other civil penalty that shall not give rise to any disability or legal disadvantage based on conviction of a criminal offense."!Morissette v. United States!

man took used bomb casings that he presumed were abandoned and sold for $84, court instructed that felonious intent (mens rea) was presumed by his own act (trial and court of appeals)!many violations of such regulations result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize. While such offenses do not threaten the security of the state in the manner of treason, they may be regarded as offenses against its authority, for their occurrence impairs the efficiency of controls deemed essential to the social order as presently constituted. in this respect, whatever the intent of the violator, the injury is the same, and the consequences are injurious or not according to fortuity.!Penalties as a form of regulation, "such legislation dispenses with the conventional requirement for criminal conduct - awareness of some wrongdoing. in the interests of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger!

Regulatory Offenses!There is no set test; look for certain factors and make arguments based on those factors!Is the offense analogous to to a common law offense?!

if yes, read in the analogous mens rea!if no, judicial discretion!

Is there a common law character to the offense!Does this offense arise in a characteristically regulatory context!

if yes, strict liability is ok!How big is the penalty (misdemeanor vs. felony)!Would a mens rea term undermine the legislative intent!Is this Malum Prohibitum or Mala in se offense!

People v. Dillard!guilty of carrying a loaded firearm on his person in public!

whether knowledge that the firearm is loaded is an element of the offense!

"the courts, albeit with some reluctance have recognized that certain kinds of regulatory offenses enacted for the protection of the public health and safety are punishable despite the absence of culpability!

Prof. Alan Michaels: Strict liability is constitutional when, but only when, the intentional conduct covered by the statute could be made criminal by the legislature.!

the legislature may not punish the exercise of a fundamental right!punishment must be predicated on some voluntary act or omission covered by a statute!

Lambert v. California :: In order for a conviction to stand for failure to register under this ordinance, a defendant must have actual knowledge of the duty to register or proof of the probability of such knowledge.!

Violates due process b/c this was an omission and not an act.!Holmes: A law which punished conduct which would not be blameworthy in the average member of the community would be too severe for that community to bear!

MPC only offenses that are strict liability are violations: minor offenses that do not constitute a “crime” and that may be punished only be fine or forfeiture: NOT felonies/incarceration!

US v. Wulff A felony conviction for sale of migratory bird parts of a public welfare statute of a crime not in common law required a mens rea (due process)!

DEFENSES!Doctrine:!

All requisite elements have been established, but some consideration "pulls the stinger" of criminality from the deed!Defense can also lower the punishment (quasi) rather than an absolute defense!There is no moral condemnation because culpability is negated!

Burden of Proof & Burden of Production!Criminal Procedure!

Burden of production vs. Burden of Persuasion!Production: Burden to produce evidence (minimally sufficient evidence to put the issue in play) matter of law!

Burden is generally on the ∆ with respect to affirmative defenses !Persuasion: Burden to convince a jury beyond a reasonable doubt!

Prosecution will generally have the burden of persuasion, to disprove an affirmative defense. matter of fact!With respect to insanity, many states put the burden of persuasion upon the ∆!

Elements of the crime: Prosecution constitutionally required to establish each element beyond a reasonable doubt. Prosecution has both the burden of production and the burden of persuasion.!Exculpatory Claims: ∆ typically has burden of production, while prosecution has the burden of persuasion (this varies by jurisdiction)!Affirmative defense!

∆ always has burden of production!Burden of persuasion varies by jurisdiction (determined by legislature)!

Common law: ∆ also has burden of persuasion (usually just preponderance of the evidence standard)!

more challenging for the ∆!MPC: prosecutor has burden of persuasion (beyond a reasonable doubt)!

Justification vs. Excuse!Justification: Conduct was not morally blameworthy!Excuse: Conduct may have been wrongful, but conduct must be excused!

Defensive Force :: Self Defense!Doctrine: ENTER MPC 3.09??!

Must be reasonable!If sincere, but unreasonable can be used a defense for crimes with a purpose/knowing requirement - but not for crimes with a negligent/reckless standard!

Generally the initial aggressor can't take advantage of the defense - although there are exceptions where the initial victim escalates the type of force used in response.!Self-defense cannot be used against lawful force!

Elements (ask about redundancies)!A ∆ must Reasonably believe;(usually objective standard - jury question)!In fact believe he is in danger; (sincerity)!Imminent danger (otherwise should retreat or call the cops)!Of unlawful (no police etc.)(in light of police brutality has this been tested)!Bodily injury (only physical, not psychological harm)!Harm or grave harm!

cant respond with deadly force to non-deadly force!deadly force response requires grave harm, rape, kill, kidnap!

Force is necessary!Option other than force, must use that (related to retreat???)!

i.e. asking nearby police officer for help, resorting to other methods!Only as much force as necessary!

Proportionality test judged by aggressor's own force (i.e. much bigger, angrier aggressor will allow for more extreme force used to counteract him)!

∆ did no have ability to retreat (MPC 3.04) (unless stand your ground state)!Policy: minimize violence!Exception: there is no requirement to retreat if you are in your home (unless cohabitant??) or place of work.!

Defense of another:!A person (a) may come to the defense of another (b) when that person (b) would have been entitled to use defensive force on their own behalf.!

Insanity!What sort of mental disorder/state removes moral blameworthiness!

Insanity v. Incompetence to stand trial!Competency is a constitutional question - 6th amendment right to have counsel represent you. concerned with a ∆'s mental state with respect to ability to stand trial at the time of the trial!Insanity test is concerned with the ∆'s mental state at the time the crime was committed.!

Definitions of Insanity :: focus on M'Naghten and ALI!M'Naghten Rule***!

Cognitive test; a person is insane if, at the time of her act, she was laboring under such a defect of reason, arising from a disease of the mind, that she!

(1) did not know the nature and quality of the act that she was doing; or!(2) if she did know it, she did not know that what she was doing was wrong, i.e., the accused at the time of doing the act did not know the difference between right and wrong.!

criticized for its perceived narrowness, was then coupled with the irresistible impulse test by some courts!

Irresistible Impulse (control) test!A person is insane if, at the time of the offense!

(1) she acted from an irresistible and uncontrollable impulse!(2) she lost the power to choose between the right and wrong, and to avoid doing the act in question, as that her free agency was at the time destroyed; or!(3) the defendants will... has been otherwise than voluntarily so completely destroyed that her actions are not subject to it, but are beyond her control!

Product standard!Simply, a person should be excused if her unlawful act was the product of a mental disease or defect (jury question - expert testimony determination)!

MPC definition (American Law Institute)***!A person is not responsible for her criminal conduct if, at the time of the conduct, as the result of a mental disease or defect, she lacked substantial capacity to: (similar to M'Naghten - although lack of capacity is lower standard than "total lack of knowledge" as required by M'Naghten")!

(1) appreciate the criminality (or moral wrongfulness) of her conduct or (more permissive than M'Naghten)!(2) to conform her conduct to the requirements of the law (volitional unlike M'Naghten)!

Federal Statutory definition (now defunct?)!A person is excused if she proves by clear and convincing evidence that at the time of the offense, as the result of a severe mental disease or defect, she was unable to appreciate!

(1) the nature and the quality of her conduct; or!(2) the wrongfulness of her conduct!

any abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behavior controls!

Mental Disease or Defect: All insanity tests presuppose that the actor suffers from a "mental disease or defect"!

Mental disease/defect are medical terms while the legal term/defense is insanity!

People v. Serravo :: Husband stabbed wife in the back while sleeping -legal right v. wrong The husband was guilty but mentally insane because the correct sanity standard is moral wrong. A person who is in an extremely psychotic state might be aware that an act is illegal, yet be utterly without the capacity to comprehend that it is immoral. !Yates :: Deific Decree (M’Naghten) – might satisfy. Tricky because commanded by Satan. !

Necessity!conceptually a justification, involves a choice where one must break the law or allow an awful thing to take place - large jurisdictional variation!results in acquittal!Doctrine!

Action must be necessary in order to prevent harm!The harm avoided must be greater than the harm done!No legislative intent to the contrary!Unclean Hands: cant defend against recklessness or negligence, but can for knowledge!

Policy:!In certain cases it would be inhumane/illogical/senseless to enforce certain laws given extreme circumstances!

often the action taken, while against the law, is socially desirable!Case Study of Wolfgang Daschner (Germany)!

Facts: Hot head police lieutenant (Daschner) is in charge of a kidnapping case. They catch the guy they think is the kidnapper, Gafgen, and Daschner threatened torture to find the kid that Gafgen had actually already killed. Germany convicted Daschner. !

Guantanamo torture cases have been based on the necessity defense.!Regina v. Dudley (men on lost ship kill and eat boy) !

not meant to excuse this type of act - could lead to bad consequences where

this becomes a way to get away with murder. Creates a scenario where someone is able to decide that the sacrifice of the value of one life is acceptable in order to sustain there own.!

Illinois – closer to MPC (less stringent standard/very permissive) !Elements:!

Clean hands!Reasonably and in fact believe!That conduct was necessary!Injury avoided greater than harm caused!

Choose lesser between two evils!** Know that most others require no prior legislative decision and imminence.!

No proportionality requirement!Has homicide exception!

Duress!conceptually an excuse!here, the person responsible for the coercion is guilty of the coerced activity!

There IS Actus reus !Willed voluntary movement of muscles, but not voluntary as far as cruel choice imposed by another.!

Defendant does have mens rea – satisfied elements, but has an excuse!Comes up often – much crime is coerced (gangsters and drug dealers force often).!

Hard to get evidence, how much coercion!Doctrine (common law)!

Most jurisdiction have seven features !Three about threat!

Imminent Threat!Death or serious bodily injury!To the actor or his immediate family!

Three about actor!Reasonably believes!Has no reasonable escape (No time or opportunity [connected to imminent])!Clean hands - Not at fault in creating the situation (Excludes gangsters and drug dealer defense)!

Can’t be murder!Some variance!

MPC: no imminence, deadly force, or family requirements!Courts are not very sympathetic !

Gave example from United States v. Contento-Pachon (cocaine balloons). Very sympathetic claim of duress, but trial court did not allow it. Threat not immediate or escapable. Luckily appeal allowed it (but vigorous dissent)!

Some courts treat duress as part of necessity!Professor thinks it is just muddled thinking.!Necessity – no crime.!Duress – someone else is guilty (the coercer)!

State v. Crawford – Crack Head – Found not Duress – Tyrone Crawford (defendant), druggie, was told to commit robberies in order to pay the debt, but not allowed duress defense because no imminent threat, he created his situation (no clean hands), and his fear was unreasonable.!

ATTRIBUTION OF CRIMINALITY!Attempt :: inchoate crime!

MPC § 5.01 Criminal Attempt!(1) Definition of Attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:!

(a) purposely engages in conduct that would constitute the crime if the attendant circumstances were as he believes them to be; or!(b) when causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or with the belief that it will cause such result without further conduct on his part; or!(c) purposely does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime!

Policy:!Attempts are still dangerous and culpable, there is a powerful intuition that condemnation should not turn on luck (actus reus/mens rea are present but ∆ may just fail to succeed - still culpable)!Utilitarian: A failed killer is just as dangerous as a successful killer!Expressive: the victim sees a difference, but probably still wants harsh punishment!

Grading: Attempt is a crime of the same grade and degree as the most serious offense that is attempted!

MPC § 5.05 Grading of criminal attempt, solicitation and conspiracy; mitigation in cases of lesser danger; multiple convictions barred!

(1) Grading. Except as otherwise provided in this section, attempt, solicitation and conspiracy are crimes of the same grade and degree as the most serious offense that is attempted or solicited or is an object of the conspiracy. An attempt, solicitation or conspiracy to commit a [capital crime or a] felony of the first degree is a felony of the second degree.!(2) Mitigation. If the particular conduct charged to constitute a criminal attempt, solicitation or conspiracy is so inherently unlikely to result or culminate in the commission of a crime that neither such conduct nor the actor presents a public danger warranting the grading of such offense under this section, the court shall exercise its power under section 6.12 to enter judgment and impose sentence for a crime of lower grade or degree or in extreme cases, may dismiss the prosecution.!(3) Multiple Convictions. A Person may not be convicted of more than one offense defined by this article for a conduct designed to commit or to culminate in the commission of the same crime.!

Common law - attempt is a crime of a significantly lower grade and degree!Actus Reus:!

Prepatory activity is not sufficient!Common law: Dangerous Proximity Test!

The act must be so near its accomplishment that in all reasonable probability the crime itself would have been committed, but for timely interference.!People v. Rizzo: robbers seeking victim - but never find. cannot be found guilty of attempt because there was no reasonable possibility of success (althout they were, and only 1 decided to appeal [he got off])!

MPC (more easily fullfilled): conduct that is a substantial step towards the commission of the crime and strongly corroborative of a criminal purpose.!

MPC §501 (2) Conduct which may be held substantial step under subsection (1)(c). Conduct shall not be held to constitute a substantial step

under subsection (1)(c) of this section unless it is strongly corroborative of the actor's criminal purpose. Without negating the sufficiency of other conduct, the following, if strongly corroborative of the actor's criminal purpose, shall not be held insufficient as a matter of law:!

(a) lying in wait, searching for or following the contemplated victim of the crime;!(b) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission!(c) reconnoitering the place contemplated for the commission of the crime!(d) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed!(e) possession of materials to be employed in the commission of the crime, that are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances;!(f) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances;!(g) soliciting an innocent agent to engage in conduct constituting an element of the crime!

Mens Rea for Attempt is SPECIFIC INTENT!Mens rea of the underlying crime is required- can only attempt purposely or knowingly!

Conduct crimes: purpose is required for an attempt!Result crimes: knowledge or purpose may be sufficient for an attempt !You can’t attempt accidental (reckless or negligent) crimes!!

Abandonment/Renunciation!Affirmative defense: requires a complete and voluntary renunciation of criminal purpose.!MPC § 501 (4) Renunciation of Criminal Purpose. When the actor's conduct would otherwise constitute an attempt under subsection (1)(b) or (1)(c) of this section, it is an affirmative defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of criminal purpose. The establishment of such defense does not however, affect the liability of an accomplice who did not join in such abandonment or prevention. Within the meaning of this article, renunciation of criminal purpose is not voluntary if it is motivated, in whole or in part, by circumstances, not present or apparent at the inception of the actor's course of conduct, that increase the probability of detection or apprehension or which make more difficult the accomplishment of the criminal purpose. Renunciation is not complete if it is motivated by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar objective or victim.!Common law does not recognize ???!

People v. Staples (common law) He abandoned too late and had already completed the crime of attempt by the time he abandoned (bringing materials + starting drilling sufficed); he had gone beyond the preparatory stage!

Impossibility!Complicity!

§ 2.06 Liability for conduct of another; complicity!

(3) A person is an accomplice of another person in the commission of an offense if:!

(a) with the purpose of promoting or facilitating the commission of the offense he!

(i) solicits such other person to commit it; or!(ii) aids or agrees or attempts to aid such other person in planning or committing it!

complicity always depends on the occurrence of some other offense, whether or not another person is punished for that offense.!

There is no specific crime of complicity, you are charged with the actual crime you were complicit to/aided+abedded.!

Mere presence is not enough!State v. Tally (telegram) Defendant aids and abets within the meaning of complicity where he has an effect on the victim’s chances of avoiding the crime, however slight, because any marginal effect is sufficient for aiding and abetting.!Individual responsibility for collective action :: complicity principle!

individual difference principle: i am accountable only for the difference my action alone makes to the resulting state of affairs!control principle: i am accountable only for those harms over whose occurrence i had control!Complicity principle: I am accountable for what others do when I intentionally participate in the wrong they do or harm they cause!the actus reus for aiding or abetting is, actually, however marginally, assisting or encouraging a principle, or standing by when one has a duty to act.!

Mens Rea!Mental element of the offense go over what is meant by dual intent here. is it the specific intent to assist and the general purpose of the underlying crime?!

dual intent requirement!specific intent to assist or encourage!

Intent to aid or encourage!purpose to aid?; or!expectation of aiding?!intention to aid the proscribed conduct, or also the purpose of achieving proscribed results!

Most jurisdictions today hold that intent to aid requires purpose; that accomplices not only intend to aid or encourage the offense, but also share in its mental element.!Ostrich instruction: designed for cases in which there is evidence that the defendant, knowing or strongly suspecting that he is involved in shady dealings, takes steps to make sure that he does not acquire full or exact knowledge of the natter and extent of those dealings.!

you may infer knowledge from a combination of suspicion and indifference to the truth. If you find that a person had a strong suspicion that things were not what they seemed or that someone had withheld some important facts, yet shut his eyes for fear that he would learn, you may conclude that he acted knowingly.!

Contrast in application of ostrich rule between take action to avoid learning the truth, or merely failing to display curiosity/seek out the truth.!MPC: with the purpose of promoting or facilitating the commission of the underlying offense!

People v. Beeman: (helped friends steal in-laws jewelry) !Natural and probable consequences standard: D may be guilty for things that

he did not specifically intend/were not his purpose if they were natural and probable consequences of the underlying action!

Ex. John drives the getaway car while Jim goes in to rob the bank with a gun; he shoots a guard and takes a teller to the vault (which is kidnapping)- Jim is likely guilty of complicity of those crimes as well as the crime of robbing the bank; if Jim rapes the teller, that may be a more attenuated connection !Some jurisdictions have a facilitation statutes instead of this (i.e. aiding and abetting a criminal act and being reckless/negligent with regard to its consequences)!

Abandonment!requires efforts to reduce the effects of your previous activity !Multi-part requirements!

Minimum: tell the principal that you are abandoning the criminal enterprise!Additionally: make bona fide efforts to neutralize the effects of your previous efforts!Aiding: take back whatever you had given!Abetting: now discourage the activity!If impossible (like Beeman- gave knowledge, can’t take it back): go to police!

Note: spontaneous, unannounced abandonment is NOT adequate!Conspiracy!

Inchoate crime: punishes anticipatory action that aims at, but does not necessarily ever reach, a criminal object.!Accessorial liability: implicates all the co-conspirators in each other's acts!Actus Reus!

essential element of the agreement is the act!jurisdictional disagreement over merger with attempt and the completed offense!Federal: no merger (distinguishes based on the type of conspiracy, some conspiracy wont merge, others may merge????).!Illinois: may merge into the completed crime, but not attempt!MPC: is merger!Overt Act: some states require, some dont!

Federal distinguishes between types of conspiracies!overt act where required can be minimal (merely prepatory)!overt act can be committed by any one in the conspiracy !

Mens Rea!common law: knowledge or intent to enter into an agreement!

specifically intend that the purpose of the agreement be accomplished!§5.03 Criminal Conspiracy!

(1) Definition of Conspiracy. A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he:!

(a) agrees with such other person or persons that they or one or more of them will engage in conduct that constitutes such crime or an attempt or solicitation to commit such crime; or!(b) agrees to aid such other person or person in the planning or commission of such crime or of an attempt or solicitation to commit such crime.!

(2) Scope of Conspiratorial Relationship. If a person guilty of conspiracy as defined by subsection (1) of this section, knows that a person with whom he conspires to commit a crime has conspired with another person or persons to commit the me crime, he is guilty of conspiring with such other person or person, whether or not he knows their identity, to commit such crime.!

(3) Conspiracy With Multiple Criminal Objectives. If a person conspires to commit a number of crimes, he is guilty of only one conspiracy so long as such multiple crimes are the object of the same agreement or continuous conspiratorial relationship.!(4) Joinder and Venue in Conspiracy Prosecutions.!

(a) Subject to the provisions of paragraph (b) of this subsection, two or more persons charged with criminal conspiracy may be prosecuted jointly if:!

(i) they are charged with conspiring with one another or!(ii) the conspiracies alleged, whether they have the same or different parties, are so related that they constitute different aspects of a scheme of organized criminal conduct.!

(b) In any joint prosecution under paragraph (a) of this subsection:!(i) no defendant shall be charged with a conspiracy in any county [parish or district] other than one in which he entered into such conspiracy or in which an overt act pursuant to such conspiracy was done by him or by a person with whom he conspired; and!(ii) neither the liability of any defendant nor the admissibility against him of evidence of acts or declarations of another shall be enlarged by such joinder; and !(iii) the court shall order a severance or take a special veridict as to any defendant who so requests, if it deems it necessary or appropriate to promote the fair determination of his guilt or innocence, and shall take any other proper measures to protect the fairness of the trial.!

(5) Overt Act. No person may be convicted of conspiracy to commit a crime , other than a felony of the first or second degree, unless an overt act in pursuance of such conspiracy is alleged and proved to have been done by him or by a person with whom he conspired:!(6) Renunciation of Criminal Purpose. It is an affirmative defense that the actor, after conspiring to commit a crime, thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal propose.!(7) Duration of Conspiracy. For purposes of Section 1.06(4):!

(a) a conspiracy is a continuing course of conduct that terminates when the crime or crimes that are its object are committed or the agreement that they be committed is abandoned by the defendant and by those with whom he conspired; and!(b) such abandonment is presumed if neither the defendant nor anyone with whom he conspired does any overt act in pursuance of the conspiracy during the applicable period of limitation; and!(c) if an individual abandons the agreement, the conspiracy is terminated as to him only if and when he advises those with whom he conspired of his abandonment or he informs the law enforcement authorities of the existence of the conspiracy and of his participation therein.!

Lauria!The intent of a supplier who knows of the criminal use to which his supplies are put to participate in the criminal activity connected with the use of his supplies may be established by (1) direct evidence, (2) through an inference that he intends to participate based on, (a) his special interest in the activity, or (b) the aggravated nature of the crime itself...!

Rico!§ 1961 Definitions!

As used in this chapter - !(1) Racketeering activity means (A) any act or threat involving murder,

kidnaping, gambling, arson, robbery, bribery, extortion, or dealing in narcotic or other dangerous drugs, which is chargeable under state law and punishable by imprisonment for more than once year; (B) any act which is indictable under any of the following provisions of title 18, United States Code [including bribery, counterfeiting, theft from interstate shipment, embezzlement from pension and welfare funds, extortionate credit transactions, transmission of gambling information, mail fraud, wire fraud, obstruction of justice, obstruction of criminal investigations, obstruction of state or local law enforcement, interstate transportation of wagering paraphernalia, unlawful welfare fund payments, intreats transportation of stolen property, trafficking in contraband cigarettes, white slave traffic, payments and loans to labor organizations, embezzlement from union funds,] fraud in the sale of securities, or felonious manufacture, importation, receiving, concealment, buying, selling, or otherwise dealing in narcotic or other dangerous drugs, punishable under law of the United States;...!(4) Enterprise includes any individual, partnership, corporation, ssociation, or other legal entity, and any union or group of individuals associated in fact although not a legal entity!(5) pattern of racketeering activity requires at least two acts of racketeering activity, one of which occur after the effective date of this chapter and Th.e last of which occurred within ten years (excluding any period of imprisonment) after the commission of a prior act of racketeering activity!

Pinkerton Doctrine!Every conspirator, is liable for the acts of every other conspirator in furtherance of the conspiracy provided that the acts are reasonably foreseeable.!

Jurisdiction!Maximal jurisdictions: “Reasonably foreseeable” broadly interpreted!

Pinkerton liability broader than complicity, “natural and probable consequences” liability.!MAJORITY RULE!Even here, there are due process limits!

Medium jurisdictions: “Reasonably foreseeable” narrowly interpreted!Roughly equivalent to complicity, “natural and probable consequences” !

Minimal jurisdictions: No Pinkerton liability because Pinkerton doctrine rejected.!Minority rule, embraced by MPC !

Termination!MPC: completely and voluntary renounce, and take down the conspiracy :: more difficult because you have already committed the crime in the agreement itself and here abandonment equates almost to absolution of a crime?!MPC and Common Law for Abandonment!

i.! If abandon AND inform all co-conspirators of abandonment!1.! No more Pinkerton liability (i.e., not liable for future acts done in furtherance of conspiracy)!But still liable for past acts and for agreement itself.!

MPC only: Affirmative Defense!If completely and voluntarily renounce criminal purpose AND successfully thwart conspiracy’s object, no liability at all.!

Solicitation fill IN!HOMICIDE!

§210.1 Criminal Homicide!(1) A person is guilty of criminal homicide if her purposely, knowingly, recklessly or

negligently causes the death of another human being!(2) Criminal homicide is murder, manslaughter or negligent homicide!

§210.4 Negligent Homicide!(1) Criminal homicide constitutes negligent homicide when it is committed negligently!(2) Negligent homicide is a felony of the third degree!

§210.0 Definitions!(1) "human being" means a person who has been born and is alive!(2) "bodily injury" means physical pain, illness or any impairment of physical condition;!(3) "serious bodily injury" means bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ;!(4) "deadly weapon" means any firearm or other weapon, device, instrument, mater or substance, whether animate or inanimate, which in the manner it is used or is intended to be used is known to be capable of producing death or serious bodily injury.!

Murder: !§210.2 Murder!

(1) Except as provided in section 210.3(1)(b), criminal homicide constitutes murder when:!

(a) it is committed purposely or knowingly; or!(b) it is committed recklessly under circumstances manifesting extreme indifference to the value of human life. Such recklessness and indifference are presumed if the actor is engaged or is an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape.!

(2) Murder is a felony of the first degree [but a person convicted of murder may be sentenced to death, as provided in Section 210.6]!

Intentional Homicide: intent to kill has nothing to do with motive, although the circumstances that give rise to the intent may mitigate culpability!Transferred Intent: gray tries to kill smith, but misses and kills Johnson - his intent to kill smith is transferred, and he can still be found guilty of the intentional killing of Johnson.!

in contrast to tort law which says duty runs to individuals, not the world at large.!Murder: the killing of one human being by another with "malice aforethought."(does not necessarily involve "premeditation")!

Malice aforethought: describes the cluster of criteria that distinguish murder from manslaughter!

Malice: intention to cause, or a willingness to undertake a serious risk of causing the death of another, when that intent or willingness is based on an immoral or unworthy aim.!Mens rea of murder at common law is Malice!

Killing + Malice = Murder!Malice (devaluation of life?)!

intent to kill!intent to inflect grievous bodily harm!abandoned and malignant heart!felony murder!

Gradations based on:!Extent of risk undertaken!degree of consciousness of the risk; and!

degree of unworthiness of the motivating aim!First Degree: if it is both intentional and premeditated, or if it involves a killing during the course of one of several major felonies specified by statute - such as robbery, burglary, rape, or arson. Otherwise, a murder is second degree!

Long prison sentence: 20 year +, or life sentence with/out parole!Capital Murder: death penalty!

state statute specifies the substantive criteria and special trial procedures for determining whether a ∆ convicted of first degree murder should receive a death sentence.!

Second Degree:!Prison usually in the range of 5-15!

Defined: Unjustified killing with:!Purpose to cause death; or!intent to inflict serious bodily harm; or!Extreme recklessness with respect to a serious risk of harm to another's life, where the risk action manifests so unworthy or immoral a purpose as to suggest callous indifference to human life; or!Under the so-called "felony-murder rule." a willingness to undertake even a very small risk of death in committing a serious felony.!

Intent to do serious bodily injury:!Common law allowed intent to do serious bodily injury to substitute for intent to kill.!

normally this is limited to attacks made with a deadly weapon so as to prevent every fatal assault from being classified as murder, however, the court has discretion as to what they will consider to be a deadly weapon (ex. fists on a big boxer Commonwealth v. Dorazio [unintentional killing as murder])!

MPC eliminates intent to injure as a separate basis of liability for murder!Manslaughter :: Homicide without malice is there a distinguishment between MPC/Common law?!

§210.3 Manslaughter!(1) Criminal homicide constitutes manslaughter when:!

(a) it is committed recklessly; or!(b) a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor's situation under the circumstances as he believes them to be!

(2) Manslaughter is a felony of the second degree!Voluntary Manslaughter: intentional killing that lacks malice because the killer either acted in the heat of passion after "adequate provocation" or acted in the honest but unreasonable belief that the killing was necessary for self-defense;!

Kleinfeld definition: killing committed in the heat of passion where that passions is produced by an adequate provocation and where the killing is committed without a sufficient cooling time!Historically certain categories were deemed to satisfy provocation for the above!

catching spouse in act of adultery!serious crime against a loved one!mutual combat!response to a violent assault!false arrest!

Provocation !

There is one strict rule on provocation: words are never enough!Provoker must be the victim under the common law!

Passion!you must be in a state at the time of the offense where you are unable to reason!

Involuntary Manslaughter: Killing committed recklessly or highly negligently!Reckless Manslaughter!Negligent Homicide!Vehicular manslaughter !Misdemeanor Manslaughter Rule: involuntary manslaughter to cause death by risking fatal harm where the underlying act establishes guilt of some misdemeanor!

Francis v. Franklin :: (due process clause of the fourteenth amendment prohibits the state from making use of jury instructions that have the effect of relieving the state of the burden of proof on the critical question of intent in a criminal prosecution)!

∆ challenges jury instructions that state that the law presumes that a person intends the ordinary consequences of his voluntary acts!

constitutional challenge that this undermines the fact-finders responsibility at trial, based on evidence adduced by the state, to find the ultimate facts beyond a reasonable doubt.!however, the jury instructions also informed the jury that this presumption may be rebutted!Regardless, this is still constitutionally infirm as it relieves the state of the burden of persuasion on the presumed element by instructing the jury that it must find the presumed element unless the ∆ persuades the jury not to make such a finding.!

although intent must be proved beyond a reasonable doubt, proof of the firing of the gun and its ordinary consequences constituted proof of intent beyond a reasonable doubt unless the defendant persuaded the jury otherwise!

prosecution must show, not merely that ∆ purposefully/knowingly did something which had death of another as its natural and probable consequence - but that the ∆ engaged in conduct with the conscious objective of causing death of another or at least with awareness the death of another was practically certain to result!

however, this may be proven circumstantially, and finding knowledge/purpose may be a permissible inference from the character of the ∆'s conduct and the circumstances under which it took place. !

People v. Walker (stabs man in the midst of a fight after the man had instigated the fight with knife)!Involuntary Manslaughter: Killing committed recklessly or highly negligently (criminal negligence) - gross deviation form the standard of care of a reasonable person!

difference between criminal and ordinary negligence may be the conscious disregard of a risk (criminal negligence) isn't this recklessness?!

the language used is inconsistent jurisdictionally!Reckless Manslaughter!Negligent Homicide!Vehicular manslaughter !Misdemeanor Manslaughter Rule: involuntary manslaughter to cause death by risking fatal harm where the underlying act establishes guilt of some misdemeanor!State v. Williams (failed to supply 17 month old child with necessary medical attention - child died)!

THEFT!Larceny: Trespassory taking and carrying away of the personal property of another with the intent to permanently deprive the owner thereof (requires a concurrence of mens rea and actus reus!

Acts Reus: trespasser taking (caption) and carrying away (asportation) of the personal property of another, from the possession of another with the intent to keep permanently !

carrying away: can be satisfied by any movement no matter how small!property of another: must be personal property (as it must be able to be carried away)!

there are special statutes for other types of property such as services!Trespass!

Trespass on possession!trespass: non consenting taking!possession: immediate physical control of property!

Topolewski v. State (stolen barrels of meat, not trespass because they essentially consented to the taking)!Continuing Trespass Doctrine: the trespassory taking "continues" for every moment that the item is in the offenders possession - in this way all the mens rea/actus reus requirements can be met simultaneously!

Mens Rea!Specific intent!∆ must know the property is not his own!

if he takes the property under a genuine claim of right, he cannot commit larceny!

Intent to take permanently: ∆ must intend to take permanently, or for such an extended time as to deprive the owner of a major portion of its value or enjoyment !

larceny by trick is possession, not title!Fraud vitiates consent!transfer of title becomes obtaining property by false pretenses !

Embezzlement :: involves a relationship of entrustment!unlawful appropriation of the property of another where lawfully possessed with the intent to permanently deprive the owner thereof!

Distinguishing Embezzlement from Larceny!A person who fraudulently secures property from another obtains mere custody of the property. Consequently, the subsequent appropriation of the property, which constitutes a trespassory taking of possession thereof, renders the fraudulent actor guilty of larceny (Larceny by trick)!An employee who receives property from his employer for use in the employment relationship ordinarily obtains mere custody of the property. Therefore, if the employee takes and carries away the employer's property with the concurrent intent to steal it, he is guilty of larceny, rather than embezzlement. (Larceny)!An employee who receives property for his employer from a third person ordinarily receives possession of the property. Therefore, if he later deices to convert the property, he is guilty of embezzlement. (Embezzlement)!A bailee entrusted with property ordinarily obtains possession of it, except that if the property is enclosed in a container he obtains possession of the container but only custody of its contents. Therefore, if the bailee subsequently decides to sell or otherwise convert the entrusted property in the condition in which it was received (in its original container if there was one), he is guilty of embezzlement. In contrast, if the bailee wrongfully opens the container and converts the contents, he is guilty of larceny. If he is responsible for delivering the container to a third party, and he

does so without opening it, and thereafter decides to steal the property, he is guilty of larceny.!In jurisdictions in which entrustment is an element of the offense of embezzlement, a person who finds lost or mislaid property, takes it with the intent to find the true owner, and then changes his mind and converts the property to his own use, is guilty of no offense. It is larceny, however, if he had a wrongful intent when he found the property.!

Obtaining property by FALSE PRETENSES!To support a conviction of theft for obtaining property by false pretenses, it must be shown: (1) that the defendant made a false pretense or representation, (2) that the representation was made with intent to defraud the owner of his property (possession and title), and (3) that the owner was in fact defrauded in that he parted with his property in reliance upon the representation."

Modern efforts at consolidation!Given issues of pleading and proof many states have sought to consolidate the three types of theft.!

MPC sets out different types of theft!Theft by unlawful taking!Theft by deception!Theft by extortion.!

Another approach is to allow a prosecutor to allege that the ∆ stole the property in question and support the allegation at trial with evidence of any for of theft.!

RAPE!Common law definition: carnal knowledge of a woman forcibly and against her will.!

Carnal knowledge = sexual intercourse. anal and oral penetration fall under the offense of sodomy!a husband who forced his wife to engage in sexual intercourse with him was not guilty of rape at common law!

CORPORATE CRIMINAL LIABILITY!Is criminal liability conducive to promoting our economic goals?!Does criminal liability make sense given that a corporation is a collective entity!anthropomorphizing a corporation and holding it liable for the actions of its members is natural!when are an individuals actions properly attributed to a corporation!Entity Liability!

Common Law!federal law uses common law here!Test for Corporate Criminal Liability!

the agent was acting within the course and scope of his or her employment, having the authority to act for the corporation with respect to the particular corporate business which was conducted criminally; !the agent was acting, at least in part, in furtherance of the corporation's business interests; and !the criminal acts were authorized, tolerated, or ratified by corporate management.!

can be circumstantial.!Remedy!

fine!shut down company!prevent company from raising money on exchanges!

bar a company from government contracts!***deferred prosecution agreements/non prosecution agreements/probation agreements!

Agent Liability!a corporate officer may be convicted of a misdemeanor if!

the offense is a public welfare offense!the officer has a responsible relationship to the violation!

responsible relationship (not well defined)!failure of oversight caused the non-compliance!responsible officer must have the power to prevent the violation!

THE SENTENCING REVOLUTION!Indeterminate Sentencing!

Judges had broad discretion to choose a sentence within a large statutory range, and then the length of time a serious felon actually spent in prison often depended on a later decision by a parole board as to whether his release comported with public safety.!

Determinate Sentencing!A sentence is one whose length is fixed or prospectively measurable at the time of sentencing!

Can be discretionary or nondiscretionary!Discretionary Determinate: allows a judge to pick the actual sentence from a statutory range of punishments!Nondiscretionary determinate: the legislature specifies the actual exact sentence!

Discretionary can be guided or unguided!Unguided: statutes broad and judge may choose any sentence within the range based on his/her own criteria!Guided: can be presumptive or voluntary and set forth guidelines for how a judge should choose between a range of sentences!

Few states operate under voluntary/advisory guidelines!Most have a degree of enforceable legal authority!

Minnesota scheme, used in several states: trail courts must use presumptive sentences in "ordinary cases"!

Debate over whether guideline sentence should be based exclusively on crimes which offenders have been convicted, or whether a guideline sentence should also reflect additional alleged criminal conduct. (Conviction v. Non conviction offenses)!

sentencing based on both is often called "real-offense sentencing"!Debate over giving weight to offenders personal characteristics!

i.e. single parent with yon children, or addict who is likely to be a good candidate for drug treatment!some states place limits on such concerns for fear of race and class disparities!

Mandatory Sentencing!Many statutes contain a mandatory minimum/maximum sentence for a given offense!

removes a judges discretion, to some extent, to fit the sentence to the specifics of the crime!promotes uniformity and equity in sentencing!

Apprendi v. New Jersey :: Man shoots into house because of knowledge that the occupants are African American!

judge accepted racial bias based upon a preponderance of the evidence!Apprendi challenged, stating that due process required evidence beyond a reasonable doubt!

is there a distinction between an element of a felony offense and a "sentencing factor"!

Holding: Other than the fact of a prior conviction, any factor that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt!

also does not apply to ∆ admissions!Post Blakely (man kidnapped estranged wife) addition to sentencing commission guidelines :: [I]f an aggravated departure is to be considered, the judge must afford the accused an opportunity to have a jury trial on the additional facts that support the departure and to have the facts proved beyond a reasonable doubt. If the departure facts arc proved beyond a reasonable doubt, the judge may exercise the discretion to depart from the presumptive sentence.!

sentence must be based on facts proved to the jury or admitted!10 Steps to use in computing a guidelines sentence!

What is the most serious crime of conviction?!What is the relevant conduct for this offense of conviction?!Are there any specific offense characteristics in the guideline itself?!What was the defendant's role in the offense?!Did the defendant obstruct justice?!Was the defendant convicted of multiple counts?!Did the defendant show acceptance of responsibility?!How bad is the defendant's criminal history?!After all this, is there something the sentencing commission forgot to consider?!

if so, a departure may be in order.!Is all of this moot because there is a mandatory minimum sentence?!

Post Booker: courts should view guidelines as advisory rather than binding!supreme court seems to believe that whether within or outside of guidelines, trial courts deserve considerable deference in setting a reasonable sentence.!

HARSH JUSTICE!Historically more lenient than other countries - up until the 1970s!Determinate Sentencing (used in most jurisdictions)!

legislature indicates a statutory min/max sentence, thereby limiting judicial discretion and parole possibility!Sentence length is fixed or prospectively measurable at the time of sentencing!

3-strikes statutes (recidivist statutes)!punish recidivism for "violent" or "serious" felonies!

Support: society has a right to protect itself against repeat offenders through incapacitation!

utilitarian: rather than proportionality, if an offender cannot be cured - they should be incapacitated indefinitely!

Criticism: there is no discretion, so sometimes too harsh; the prior crimes have already been punished - goes against retributivist theory to punish twice!

Erring v. CA :: 25 year sentence based on 3 strikes doctrine deemed appropriate as punishment for theft of 3 golf clubs (worth $1,200 total) where ∆ had been convicted of other burglaries/robberies. SCOTUS not in business of interfering in state sentencing provisions!

Proportionality (8th Amendment)!Per the supreme court, proportionality is not a part of the 8th amendment's protection against cruel and unusual punishment (except the death penalty and outrageously extreme imprisonment like LWOP for j-walking)!

Federalization of crime (federal crimes generally punished more harshly than state crimes)!Death Penalty!

Had been on the decline, but has been making a revival in america of the past 45-50 years!

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