Kwok Tse11/16/14Criminal Law Issue Spotter

Common LawGeneral Intent: Mental element attached to the act which constitutes the offense (the act of doing something with the mindset on just doing that specific action not other intent). Only requires that you intend to perform the act.

Buzz word: “maliciously,” “unlawfully” “feloniously” “knowingly” or “recklessly.” Ex. battery as “intentionally and harmful physical contact with another person.” (general intent) Ex. If Jill punches Jack in the eye after Jack calls her and “idiot,” she has probably commited

battery. All the prosecution has to show is that Jill intentionally punched Jack. The prosecutor doesn’t

need to show that Jill intended to hurt Jack—the law assumes as much.

Specific Intent: defined specifically as a separate element of the offense beyond the mere doing of the act. Added mental element (mental process) makes the crime more serious. (Commit the act + intended a result)

Buzz word: with the “with intent to..”, “knowing that…”, “purposefully” or “intentionally” Ex. Burglary: “whoever breaks and enters into the dwelling house of another with the intent to

commit a felony therein.” (specific). Ex. Larceny: “whoever takes and carries away the personal property of another with the intent

to permanently deprive the owner thereof.” (Specific). “Whoever receives stolen property knowing it to be stolen” (Specific)

MPC § 2.02 Purposefully (worst): his conscious object to engage in conduct of that nature or to cause such

a result; and if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes they exist.

Knowingly: he is aware that his conduct if of that nature or that such circumstances exist and 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.

Recklessly: (aware) gross deviation and consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct.

Negligently: (unaware) gross deviation and failure to perceive the risk that the reasonable person would have realized.

Difference between mens rea of Recklessness and negligence: Recklessness marks the actor as subjectively blameworthy: actor chooses to disregard a known risk Negligence does not describe a subjective state of mind but rather a failure to perceive the risk.

o Punished in a lesser degree

Rebutting Mens ReaIssue: Whether X had Mens rea to commit the crime?Rule: Define Mens Rea. Guilty state of mind with the intent to commit the crime.

X will argue to the court that he did not have a Mens Rea requirement for the Crime and in order to do so (to rebut mens rea) he needs to show proof of either:

1. Mistake of fact/law

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2. Intoxication3. Diminished capacity X will argue Mistake of Fact. (Do jurisdictional analysis for both common law and MPC) Common Law (General and Specific) = define the rules MPC (purposefully, knowingly, recklessly, negligently)= define all of the rules

3. Analysis: For Common law this would be general intent because there is an added phrase which modified the statute to make it more serious. Added phrase such as knowingly in the statute would give rise for a specific intent.

General Intent Crime : Strict liability in a mens rea crime is irrelevant. Mistake of (argue the alternative)

MPC: Every element of the Crime did not have intent. (ex. Sell to a minor). Ex. X had the intent to sell the guns, but X is going to argue that he did not know he was

a minor. Mistake of fact would not work due to X seeing Rod not being able to handled a gun a

couple of time. This is bad news. He should have taken the gun away from Rod those couple of times he saw that.

Actus Rea vague statuteIssue: Whether the statute (set out in the exam) is unconstitutionally vague?

o Rules to vagueness: A statute is vague if “person of common intelligence must necessarily guess at its meaning and differ as to its application.”

o There are two principal reasons why a vague law is void. First, It fails to provide adequate notice to a potential violator. If he cannot figure out what the statue means, he does not know the conduct it

makes criminal. Second, a vague law provides no standards for law enforcement official and can

lead to arbitrary or discriminatory application. The language (insert language) is vague under the above standard. How can

someone know this language within the statute? (reference Chicago gang ordinance case).

Unclear language also vests too much discretion in law enforcement agents, giving rise to the danger of arbitrary or discriminatory enforcement

Vague statute may be unconstitutional because it chills first amendment freedoms

It describes language that would be vague to a reasonable person to the point that they would have to guess as to its meaning and differ in its application.

If It is not necessary that an actor have notice of a criminal statute in the sense that he or she must know of the existence of the law, It is that he or she COULD have known that the conduct was criminal

Omission

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Issue: Whether Δ had a legal duty to act?A failure to act can be punished but only where the defendant had a legal duty to act called omission. Things that give rise to legal duty:

Statute, contracts, certain type of status relationship in which one would be expected to protect the other from harm (ex. husband and wife, parent and child.)

Creation of risk gives rise to a legal duty. (You would move to a causation “but for” and legal cause test if it’s homicide).

o Look at forseeability result and the legal duty to act: Case: Levesque-“it was the failure to act, to at least report the fire that could

have been the legal cause of the firefighters’ death. IntoxicationIssue: Whether Δ can be guilty if she lacked the ability to form mens rea due to intoxication.

Common Law: o Voluntary intoxication (purposefully/knowingly) is a defense for specific intent crime but

not for general intent crimes. o Involuntary intoxication is a defense for general intent crime but not for specific intent

crimes. (because all acts have to be voluntary)!!! MPC: §2.08: where recklessness establishes an element of the offense, if the actor, due to self

induced intoxication is unaware of a risk of which he would have been had he been sober, such unawareness is immaterial –not a defense.

Strict liability (no mens rea needed only need the act)

1. Issue: Strict liability issue: Whether it was legislative intent to exclude knowledge of mens rea from the crime?

2. Rule: Define strict liability: Strict liability allow government to punish public welfare without the need of mens rea. (define what it is) *Note strict liability factors only need one factor to outweigh the rest)

Test: 1. Strict liability are marketed by certain characteristic (more of the characteristics present, more likely legislature intended the law to be strict liability)

1. Regulatory in nature: do this to protect a broad class of person who are unable to protect thsemves from some danger.

2. Penalty is relatively small and conviction carries little stigma. : the greater the penalty and stigma, the less likely there was an intent to create a SL.

3. Does not sweep within its coverage a “broad range of apparently innocent conduct.”: strict liability is designed to punish those who know they are violating the law but it is understood that it also can abe applied to the innocent.

3. Analysis: Argue for regulatory in nature/ counter argue Argue for stigma/fine and create a counter for stigma and fine. (combine punishment is

not reasonable would be a counter argument) 3. *you only need to create a counter argument for one of them* do not have to counter argue all of this

*No MPC only Common Law

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Possession (question of control)Issue: whether the evidence is sufficient to support the conclusion that the actor possessed the item?

Possession is made a crime when the thing possessed is dangerous, harmful, or incriminating Must flow from the unlawful purpose as on overt expression of intent May be actual or constructive

o Actual possession: actual physical dominion and control over the item (ex. Having it in one’s hand or pockets)

o Constructive possession: Involves a situation in which the actor is at some remove from the item Combines the power + intention to control as the ability to exercise dominion and control coupled with the intent to do so.

Facts to consider: How close is the actor to the item? Where did the item come from and how did it get into the actor’s proximity? Who owns the item? Did someone else have exclusive control over it at the time? More than one person can possess an item at the same time

Mistake of law: Mistake which of some fact of the offenseWhether he is privilege to the benefit of mistake

Issue: Whether X lack of awareness of some mistake is a defense to the crime? Decide whether it was a Mistake of fact or a Mistake of Law on the exam.

Mistake of Fact: some facts X was mistaken about. i.e. you knew that the law prohibited felons from purchasing firearms (You thought you were not a felon when, in reality, you were)

• Mistake of fact may be used as a defense ONLY when it negates the existence of mens rea.– Must be an honest mistake (specific)– Must also be a reasonable mistake if applied to a general intent crime– Not a valid defense to strict liability crimes because the existence of mens rea is

irrelevant in strict liability crimes

Mistake or ignorance of the law is ignorance of the law. An example would be that you knew you were a felon but you did not know that the law prohibited felons from purchasing a gun.

• May NOT be used as a defense UNLESS:– the statute or other enactment defining the offense is not known to the actor and has

not been published or otherwise reasonably made available prior to the conduct alleged or

– he acts in reasonable reliance upon an official statement of the law, afterward to be determined to be invalid or erroneous, contained in:

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Common Law: MISTAKE OF FACT General intent: mistake is a defense for general intent (knowingly, unlawfully, feloniously) if it is

Honest and Reasonable Specific intent: mistake would be defense for specific intent (knowing it to have been delivered)

even if it were unreasonable (it just has honest)

MPC §2.04 Mistake: Mistake is never a defense under MPC unless: the statute or other enactment defining the offense is not known to the actor and has

not been published or otherwise reasonably made available prior to the conduct alleged or

he acts in reasonable reliance upon an official statement of the law, afterward to be determined to be invalid or erroneous, contained in:

• a statute or other enactment• a judicial decision, opinion, or judgment• an administrative order or grant of permission or • an official interpretation of the public officer or body charged by law with

responsibility for the interpretation, administration, or enforcement of the law defining the defense.

Causation: (only for homicide)Case MAP

Issue: Whether Defendant caused the death of the victim? (Factual cause “but for” and legal cause “proximate.”)

Causation requires us to resolve two questions: cause-in fact and legal cause. Cause in fact is a necessary and preliminary inquiry determined by asking whether, but for the act of the defendant, the victim would into have died at the time he did.(most of the time there is always a “but for”)

What we are looking for in proximate, we are looking for when the intervening cause become a supervening. (id the intervening cause, then analyze whether it is an supervening cause)

The issue of causation after the “but for” depends on legal cause. Many jurisdictions will ask whether the death occurred in the natural and continuous sequence of events. But if some intervening act becomes the immediate cause of death, we ask whether the intervening case was foreseeable.

Common law on legal and proximate causes1. “But for” Test: but for D actions, would victim have did at the time that he did?2. Legal cause: Proximate cause

Dependent intervening cause: If the acts were reasonably foreseeable therefore D is liable. Did not cut off the chain of causation.

Independent intervening causes: the acts were unforeseeable and abnormal and cuts off D liability in a response situation. Defendant conduct merely caused the victim to be in a

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position to be acted upon by the intervening cause. (the coincidence situation that are unforeseeable is not liable)*** pretty rare

o Supervening cause: same as independent has to be abnormal (weird) and unforeseeable to be not liable.

3. Mens Rea: Treats mens rea as an independent concept which must also be proven. The intended consequence can never be too remote, even if they do not come about as you originally intended, but instead came about due to intervening causes. (all about the intent and whether he intended kill him). If victim dies of something else, X may still be liable regardless of if that was that was the specific way X wanted the victim to die. X only needed to form the intent to kill or harm victim.

*MPC and common Law is the same Test

MPC on legal and proximate causes1. “But for” Test: but for D act, the victim would have not died the time he did.2. Legal cause (Proximate cause):

Not too remote or accidental in its occurrence to have a just bearing on the actor’s liability = liable because of direct cause to the death.

Too remote or accidental in its occurrence: not liable because not proximate cause of death.

3. Mens Rea: Look to statute to spot any exceptions if not, mens rea is assumed. MPC §2.03 causation Mens Rea: if the actual result is a different victim from the one intended or risked (in homicide case) the defendant will still be liable for causing the result.

MPC §2.03 causationo 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 caused; 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 o on the gravity of his offense.

Criminal HomocideIssue: Whether a person is guilty of person homicideMPC §2.10.1 Criminal Homicide

1) A person is guilty of criminal homicide if he purposely, knowingly, recklessly or negligently causes the death of another human being.

2) Criminal homicide is murder, manslaughter or negligent homicide.

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Murder: unlawful killing of another human being with malice aforethought. Types of Murder:

1st degree murder: cold-blooded killing, one that is committed with premeditation and deliberation.

Essence of 1st degree murder is a decision to kill and some reflection that decision before the killing act is done.

2nd degree murder: Spur of the moment killing reckless killing of another.Common Law on Murder:

Intentional homicide: unlawful killing of another with the purpose to kill Murder: the unlawful killing of another human being with malice aforethought Malice is the mens rea murder. There are 4 types:

• The intent to kill (including the idea of transferred intent)• The intent to inflict grievous bodily harm (serious bodily injury)• An unintended killing that manifests an extreme indifference to the value of

human life (“depraved heart murder” = extreme recklessness)• The felony murder rule: A death occurring during the commission of an

inherently dangerous felonyProving Intent to kill

• If a purpose to kill is the mens rea, the jury must decide whether the prosecution has proven that element beyond a reasonable doubt

• Without a confession, jury must draw this inference from the evidence• If the court’s instructions do not require the jury to draw an inference there is a rule of

permissive inference: you may conclude that a person of sound mind intends the natural and probable consequences of his acts. This leaves the ultimate conclusion to the jury and the burden of proof beyond a reasonable doubt to the prosecution. Valid as long as inference is not irrational ( has to be rational for permissive inference).

• (Ex. Rational inference: “you may infer that the driver of an automobile has knowledge of items found beneath the driver’s seat.”

• (Ex. irrational inference: “telling the jury that they may infer that a person driving an escalade has the intent to steal is unconstitutional because the inference is irrational.”

Other evidence that contributes to a finding or premeditation and deliberation: • Evidence of a motive, evidence of activity of the Δ prior to the killing might be seen as

prepatory, origin of the murder weapon, evidence of prior hostilities between the Δ and the victim, mental disorder or intoxication may be used to show that there was no ability to premeditate and deliberate- specific intent element.

MPC on Murder (1 st degree felony) §2.10 MPC on Murder : Criminal homicide constitutes murder when:

• It is committed purposely or knowingly or (1st degree)• It is committed recklessly under the circumstances manifesting extreme

indifference to the value of human life (2nd degree= depraved heart CL) Felony Murder Rule: Death occurring during the commission of a felony.

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• Buzz words: 1. During the commission of 2.(Inherently) dangerous felony, 3. Independent felony, 4. That the death is proximate cause of the felony, 5. Who gets killed and who does the killing?

• Substitutes the mens rea of the felony for that murder• Called strict liability murder because mens rea to kill is irrelevant • Extends to any death occurring during the commission of a felony, whether it

was caused intentionally or accidentally • Supplants the requirement of proving malice and it make all co-felons equally

guilty or murder • §2.10 MPC for (Felony Murder Rule): recklessness and indifference to human

life are presumed if the actor is engaged or is an accomplice of the commission or attempt to commit or flight after committing or attempting to commit robbery, rape, arson, burglary, kidnapping, or felonious escape

• Limits on Felony Murder Rule • Applies ONLY to inherently dangerous felonies: Robbery, Rape, Arson,

Kidnapping, or burglary..• Once the felony has ended, the rule cannot be used to support a murder

prosecution • Duration: a killing act which occurs after the felony is over is NOT felony

murder. Whether the felony is over is determined by a number of factors:• Ex: [How long after the felon? How far away from the scene? Were the

police in hot pursuit or had the felon reached a position of temporary safety? Was the felon still in possession of the fruits of his crime? ]

• Causation factor: Cannot be applied unless the commission of the felony is the cause of the victim’s death. (causation factor, has to be a dependent causal relationship)

• Still need to prove causation!• In some jurisdictions, can apply when the commission of the felony is the

proximate cause of the death• But-for inquiry: death must flow from the felony and not just from

the circumstances. Merger Rule : Felony on which the use of the rule is based must be independent of the

killing act so as not to “merge” into the killing• Voluntary manslaughter cannot support the rule, nor can aggravated assault

resulting in the victims death or felony child abuse committed by beating the child to death

• A violent rape could count because the felony involves an independent felonious purpose in addition to the assault.

• An assault on one victim can be a felony independent of the killing of another, in which case the rule would apply

Manslaughter: unlawful killing of a person without malice aforethought.2 types of Manslaughter: Voluntary manslaughter & involuntary manslaughter

MPC on Manslaughter§210.3 MPC on Manslaughter (2nd degree felony) A criminal homicide constitutes manslaughter when:

It is committed recklessly or A homicide which would otherwise be murder is committed under the influence or

extreme mental or emotional disturbance for which there is a reasonable explanation or excuse

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The reasonableness of such explanation of excuse shall be determined from the viewpoint of a person in the actor’s situation under the circumstances AS HE BELIEVES THEM TO BE

Considered a second degree felony

Voluntary manslaughter: The purposeful killing that is seen as lacking malice aforethought. Murder that is mitigated (diminished) by an overcoming emotion which makes the Δ less

blameworthy. o Heat of passion: the rule calls for adequate provocations, such as would give rise to

the heat of passion in the reasonable person under the circumstance; and the killing must occurring during g that “heat of passion” and before the point at which the reasonable person would have gained control or cooled down.” (If you have a chance to cool down, there is no defense.)

o The heat of passion upon sudden and adequate provocation Heat of passion must be sudden, the immediate reaction to an adequate

provocation, not emotions built up over a prolonged period of provoking events

May be rekindled by some event that would not otherwise be sufficient after a cooling down from some adequate provocation

Common law on Voluntary Manslaughtero Heat of passion had to be sudden, the immediate reaction to an adequate provocation,

not the simmering build-up of a prolonged period of provoking event

MPC on Voluntary manslaughter Under MPC, Voluntary manslaughter: killing which occurs “under the influence

of an extreme emotional disturbance for which there is a reasonable explanation or excuse.”

Under MPC, no provocation is necessary (although it may be sufficient), nor any particular type of emotion is needed.

No requirement that the cooling down period be measured against an objective standard.

But jury must considered objective element of whether the explanation for the loss of control was reasonable.

**************************************************************************Involuntary manslaughter: unintended killing with no malice aforethought

Unintentional killing can be manslaughter or even murder. Involuntary manslaughter is based on the dangerous conduct of the Δ, conduct that

creates the risk of death. Must have acted recklessly: she must have been aware that the conduct gave rise to a

substantial and unjustifiable risk of death and the conduct must have been a gross deviation form the standard of the normal law abiding person (definition of reckless-MPC)

Common Law for Involuntary Manslaughter Wanton or reckless conduct Standard: For involuntary manslaughter, the risk is a

high substantial degree of harm to another that is needed. Must be Wanton or reckless conduct No requirement to prove conscious awareness of the risk if the reasonable person

would have been aware of the risk under the circumstances. (Can be held liable under Common Law for involuntary manslaughter even if you do

not have a conscious disregard for involuntary manslaughter) MPC for Involuntary manslaughter

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Recklessly, conscious disregard of a substantial and unjustifiable risk of death and that conduct deviates from the norm.

(can’t be held liable for involuntary manslaughter due to unconscious risk) (a person who fails to perceive the degree of risk cannot be guilty of manslaughter

under MPC) Note: standard differ with respect to the degree of risk and whether a conscious

disregard of risk is required.

Involuntary manslaughter IS murder: “depraved heart” & “extreme indifference” Unintended killing can be murder IF the conduct that results in the death is so

dangerous and heartless that it is the moral equivalent of the intent to kill. Note: there is no distinction with MPC and Common law definition “Depraved Heart” or “Extreme Indifference to the value of human life” express the

same culpability. MA defines this type of murder as involving “probability of death” and does not

require proof of a conscious awareness and disregard of that risk, as long as the reasonable person under the circumstances WOULD have been aware of the risk.

Note: Evidence of intoxication WILL NOT be admissible to show lack of awareness under the MPC or Common Law.

o MPC defines depraved heart or extreme indifferent to the value of human life as a more extreme form of recklessness and intoxication cannot be use to rebut recklessness.

o Common Law would define depraved heart (recklessly) as general intent and also not a valid defense.

Distinguished from manslaughter by the degree of required risk Shift from possibilities to probabilities Requirement that the actor have understood the risk so as to capture

the heartlessness that is an essential category of malice

MURDER TREE: HOMOCIDE CASE MAP

ISSUE: WHETHER THE DEFENDANT WOULD BE GUILTY OF MURDER. Look at Causation First (EVEN IF YOU CONCLUDE THAT THE DEFENDANT IS NOT GUILTY OF THE VICTIM’S DEATH, YOU

STILL NEED TO ARGUE IT). If the court were to disagree with me and find that the defendant was the cause fo the victim death, the issue would be whether the defendant caused the victim’s death.

Rule: Define Malice first. 1. Intent to kill2. Intent to inflict grievous bodily harm

**purposeful** 1st degree murder 2nd degree murder

Voluntary manslaughter (only need to know MPC and common law for this only)

If it’s purposeful have to define each of the purposeful killings and argue the weak spots and the strengths to the crime. Choose one that is the strongest.

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3. Depraved heart: extreme indifference to human life4. Felony murder rule: only used for the 4 dangerous crimes

**unintended** Depraved heart

Involuntary manslaughter Felony murder

If it’s unintended have to define each of the purposeful killings and argue the weak spots and the strengths to the crime. Choose one that is the strongest.

Attempt

Attempt: the setting out but failing in the commission of a crime.Issue: whether or not the evidence is sufficient enough to support a finding that X intended to commit the crime of (state the crime)

Mens rea of attempt: purpose (must have purpose to commit the crime, purpose to do the proscribed result). Purpose is required for mens rea of attempt (specific intent requirement). Purpose to engage in the conduct

Whether the mens rea of the attended circumstance is required to prove the substantive offense. If you have to know to be guilty of murder, then you have to know to be guilty of attempted murder. The purpose accompanies the attended circumstances. (must depend on how the substantive offense will be treated)

No difference with MPC and Common law with attempt with mens rea. (both required purpose to commit the crime).

Planning because relevant when we talk about murder and 1st degree murder (planning is sufficient to prove 1st degree).

Elements of attempt: Purpose to commit the crime (mens rea) required

Actus Reus of attempt

Have to have an act (how much of an act do you need?)(Rizzo is the main point. It is used in MA now and is best exemplifies) Dangerous proximately test and the MPC substantial step test. There are 2 types of test:

(Common Law) Dangerous proximity (MPC) Substantial step test

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MPC: test how much has been done. If there is substantial step to commission of the crime, and it corroborative actors conduct, then he can be liability of an attempt. (Strongly corroborative of actor’s criminal purpose). Substantial test: has to be strongly coop berated with the actors conduct. Does the act

manifest the actors purpose. Does it show the actor is firmly committed to this crime? Under MPC: Substantial test would be when he went to the bank. He has committed to the

robbery. (getting the gun does not show he will rob a bank, does not show how committed he is to rob the bank yet). D

The furthest you can back it up to see if B is a serious robber: would be if he was driving to the bank with the gun and mask with him.

MPC on act of attempt: deals with Substantial Step Test. How close was the offender to committing the crime? Sufficient for strongly corroborative of the actor’s criminal purpose: Lying in

wait, searching for or following the contemplated victim of the crime; enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission; reconnoitering the place contemplated for the commission of the crime; unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime ill be committed.

Under Common Law : Has the act come dangerously close to the proximately of the offense. Common law punishes criminal act and not illegal purpose . Dangerous Proximity Test: Focuses on how much left is there to be done. If there is

too much left to be done then the act is not too dangerous to be punished by criminal law. The act has to be dangerously close to the commission of the offense to be attempt. Dangerously close is assessed by the danger and the seriousness of the crime, the

apprehension of the community and weight them all (Holmes test this). Ex: Rao was not there and therefore the act was not dangerous enough to

be punished by the criminal law. There was still more to be done with the act.

Hypo: if Rao was on the 2nd floor of the building Rizzo (who knows what they look like), still would have too much to be done (he had to tell the guys in the car and do other stuff) for it to be considered attempt.

Mens rea was there because they had a purpose to rob a person. The standard for an attempt: Crime of attempt is committed when an act tending to the commission of a crime is so near to its accomplishment that in all reasonable probability the crime itself would have been committed but for timely interference.

o Common law on act of attempt: Dangerous Proximity: how much is left to be done to commit the crime? You can only be guilty is if you DO something more. Needed furtherance of the act.

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Attempt: the Setting out but failing in the commission of a crimeIssue: Whether D was attempted to do an actRule:

Have 3 issues: Act: requires an examination of how close the actor came to completing the crime Mental state: the purpose to commit the crime of engage in the proscribed conduct to

achieve the proscribed result Impossibility

Common law: Attempt is ALWAYS a SPECIFIC INTENT crime Specific Intent: defined specifically as a separate element of the offense beyond the mere doing

of the act. Added mental element (mental process) makes the crime more serious. (Commit the act + intended a result) Buzz word: with the “with intent to..”, “knowing that…”, “purposefully” or “intentionally” Ex. Burglary: “whoever breaks and enters into the dwelling house of another with the intent

to commit a felony therein.” (specific). Ex. Larceny: “whoever takes and carries away the personal property of another with the

intent to permanently deprive the owner thereof.” (Specific). “Whoever receives stolen property knowing it to be stolen” (Specific)

Common Law on the Act of Attempt

Act: requires an examination of how close the actor came to completing the crime Focused on the danger of the harm threatened by an attempt The act must be quite close to the commission to qualify as attempt

Test for how close : actor was in dangerous proximity of completing the crime – MUST ALWAYS BE APPLIED

Involved an inquiry into the nearness of the danger, the greatness of the harm, and the apprehension felt

All about how likely the success of the commission was

Rizzio Case: would- be robbers were not dangerously close to completion because the target of the crime was not present at the sites where they thought he would be Criminal law is not designed to punish sins but crimes Focus is not on how much the actor had done, but rather on how much more is left for

him to complete the crime. If there is significant room left for the actor to change his mind, his conduct may not

have proceeded far enough to be an attempt Factors in the apprehension of the community arising from the act.

Commonwealth v. Bell: Court held that a man who was intent upon having sex with a very young girl and who met with an undercover police officer posing as the girl’s mother bear the site of the supposed hook up had not yet committed attempted rape of a child. “the defendant must have had present intent to accomplish the crime without much delay, and to have had this intent at a time and place where he was able to carry it out.” There was too must left to do.

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Staples Case: once the actor has gone far enough toward the commission of the offense to reach the point of a common law attempt, there is no release from liability if he changed his mind

Common Law Mental State of Attempt: The purpose to commit the crime of engage in the proscribed conduct to

achieve the proscribed result “to possess cocaine or kill the victim”

Lyerla Case: Road enraged defendant fired three shots at a pickup containing three girls, one of them was killed. He was convicted of attempted murder of the 2 passengers on the basis of extreme recklessness. This basis left the court decide if one could attempt an unintended killing

o Decision: attempt requires proof of purpose, the purpose to kill in an attempted murder prosecution

o Dissent: the act causing the death must be purposeful but the conviction should stand on the basis of the mens rea for the attempted offense.

o May rely on either requirement of purpose to achieve the result (decision) or purpose to engage in the conduct defined as a crime (dissent, possessing drugs, stealing rum).

Stone Case: Displayed the unfocused intent to kill an unidentified “someone.” Court made clear that an individual can be liable for the attempted murder by an actor who has no identified target of his act. Shooting into a group of persons with the intent to kill is attempted murder. BUT it is NOT attempted murder of each potential victim in the, it is an attempt to kill the target, but not the others.

o Arguable here because the focus is the subjective intent of the actor.

o An attempted murder on only one person by shooting down a plane is still going to be an attempted murder on all passengers of the plane.

o With each pull of the trigger, actor could be attempted to kill someone if his purpose is to kill as many people as possible.

MPC on Attempt

Requires an act but the focus is on the culpability of the individual. The mental aspect of the crime is always separate from the act.

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The mental states (2.02) take center stage and the act, although necessary, is there to confirm that the actor is firm in his criminal intent or blameworthiness

All mental elements specifically defined and conceptually separate from the act

No separation of general/specific intent 3 aspects: act, mens rea, and impossibility

MPC on Act of Attempt: There must be a voluntary act, but only to assure us

that the actor has made a choice to act on his criminal purpose, confirming his culpability

o the act must be a “substantial step” toward the commission of the offense

a step the corroborates the actor’s purpose (even acts of preparation may suffice)

o provides a defense of abandonment : because the entire focus of MPC is on culpability, removing it is relevant to guilt: abandoning the attempt after taking a substantial step is valid as long as the actor does so in good faith

as long as the circumstances manifest a complete and voluntary renunciation of his criminal purpose

complete: the criminal plan is abandoned and not merely postponed

voluntary: the abandonment has not occurred because circumstances have increased the odds of apprehension

MPC on the Purpose (Mens Rea) of attempt: Purpose need not extend to all of the attendant circumstances.

Attempt to rob a bank requires the purpose to steal by force or fear, no requirement that the actor be aware that the bank was federal chartered, unless the completed crime requires such knowledge.

What is necessary for attendant circumstances is the same mens rea as is required for that element in the substantive offense.

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Conspiracy Rule Case mapConspiracy: Define Conspiracy

Issue: whether the evidence is sufficient to support defendant agreement to participate in the crime. (This means whether there was a conspiracy).

Rule: conspiracy is an agreement between the parties to do the crime. Identify what the agreement is and the parties to the agreement ID act: The act of conspiracy is any furtherance of the commission of the

crime. ID Mens Rea: purpose the mens rea

Do jurisdictional analysis (common law and MPC)Common Law: Bilateral

Define what bilateral means (2 or more people agree to commit the crime). Give example that cops can’t dupe people and be one of the people in the 2 conspiracy person.

No withdrawal of conspiracy MPC: unilateral (define)MPC ask if there is withdrawal from the conspiracy. (did the person withdraw from the conspiracy before it began.) Always argue Pinkerton Rule after you finish defining common law and MPC

because it tells you that a co-conspirator can be guilty of the actual crime.

Impossibility of attemptIssue: whether a person should be convicted for an attempt that cannot succeed? (is impossibility a defense to the crime of attempt?)

Factual: not a defenseLegal impossibility:

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Factual impossibility

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