MPC. Common Law. Strict Liability No strict liability except for violations

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1 Common Law Actus Reus Voluntary Act that causes social harm Voluntary Act Voluntary bodily movement / muscular contraction Involuntary: reflexive, spasms, epileptic seizures, unconscious or asleep. Habitual acts fall on voluntary side of spectrum. Time-framing: voluntarily drive knowing that prone to seizures. Expand frame to capture. Omission Duty to act to prevent harm is status relationship (parents to child, married couple, master.) Contract, creation of risk, begin assistance, statutes. Barber case: immediate family determines if treatment is proportionate; medical personnel may decide to withdraw treatment. Social Harm Conduct or result crime + attendant circumstances. Mens Rea Broad meaning: culpability. Committed actus reus with morally blameworthy state of mind. Narrow meaning: mental state provided for in definition of offense. Intentionally: 1) it is his desire to cause the social harm; or 2) acts with knowledge that harm is certain to occur as a result of his conduct. Knowledge: 1) aware of the fact or 2) correctly believes that fact exists. Willful Blindness: 1) is aware of high probability of existence of the fact; and 2a) takes deliberate action to avoid confirming fact, or 2b) purposely fails to investigate fact. Transferred intent: attribute liability to defendant who intended to kill one person and killed another instead. Does not apply in assault case where "intent to maim such person" requires criminal intent be directed toward actual victim. No transfer between types of social harm. Purpose is to put bad aim wrongdoer in same position as if aim had been good. Negligence: objective fault. Morally blameworthy failure to realize taking an unjustified risk. Criminal negligence must be gross deviation from standard of reasonable care. Reasonable person: traditional rule is that defendant's unusual physical characteristics, if relevant to the case, are incorporated into the reasonable person standard, but unusual mental characteristics are not. Recklessness: disregarded substantial and unjustifiable risk of which he was aware. If statute is not clear which mental state applies to which elements, court will interpret statute in manner that best gives effect to legislative intent. Also conclude that mens rea element applies in forward but not backward direction. Specific intent: definition of crime expressly includes intent or purpose to do some future act, or to achieve some further consequence; or provides that actor must be aware of attendant. General intent: Does not contain one of those features. Strict Liability Courts frequently authorize in cases of public welfare offenses. Permit mitigated unfairness to the individual in order more effectively to deter socially dangerous conduct. Mistakes of Fact Strict liability: no mistake is a defense. Specific intent crimes: mistake of fact is exculpatory if it negates the particular element of mens rea in the definition of the offense (i.e. lacks intent). Does not matter if mistake was unreasonable; only needs to be honest. General intent: determine if mistake negated moral culpability. Must be honest and reasonable mistake. Permits punishment for negligence. Moral wrong doctrine: Reasonable mistake, but if facts were as actor believed them to be, conduct would still be immoral. Legal wrong doctrine: If conduct causes social harm prohibited by greater crime, guilty even if, based on reasonable understanding of attendant circumstances, would be guilty of lesser crime if situation were such. Authorizes punishment for actus reus while ignoring that mens rea was at level of lesser crime. Mistakes of Law Ignorance of the law is no excuse unless statute says it is or an affirmative defense applies. Not a defense: reliance on one's own interpretation of the law or on advice of private counsel. Defense: reliance on an official interpretation of the law, later determined to be erroneous, obtained from 1) statute, 2) judicial decision from highest state court, or 3) person or public body responsible for interpretation, administration, or enforcement of the law. Lambert Principle: Ignorance may be defense where statute 1) punishes omission, 2) is based on status, and 3) malum prohibitum (wrong because it's prohibited). Nothing to alert person. Different-law mistake: Lack of knowledge of, or misunderstanding regarding the meaning or application of another law--typically non-penal--may negate mens rea element in definition of the criminal offense. Only a defense in specific intent crimes. Example: don't understand mechanic's lien--> don't realize car belongs to mechanic--> don't realize you're breaking law of larceny: "intent to steal property of another." Actual Causation But for D's voluntary act, would the social harm have occurred when it did? Accelerating a result: shorten life by even a short time = actual cause. Concurrent sufficient causes: Would have died when he did anyway because of other actor--> both acquitted. So need to modify test to "have occurred when and as it did." Or use "substantial factor" test. Obstructed cause: attempted to kill X, but did not contribute and someone else more efficient. Decision to attach causal responsibility for social harm to a certain factor is made in common sense manner, or by application of moral intuitions, public policy, or sense of justice. An act that is a direct cause of social harm is also a proximate cause of it. Direct cause is actual cause when no other causal factor has intervened. MPC Voluntary Act "Act" = bodily movement whether voluntary or involuntary Lists involuntary movements in Involuntary = any conduct that is not product of effort or determination of the actor, either conscious or habitual. Possession is an act if knowingly obtained or in control for sufficient period says the requirements don't apply to violations. Omission Not very different. 2.01(3)(b) Omission permitted if law defining offense provides for it or otherwise imposed by common law. Mens Rea Section Defendant must commit each element of offense with culpable state of mind as set out in specific statute. Legislature may choose different level for each element. Discards broad meaning of mens rea and the distinction between general and specific intent. Purposely: conscious object to engage in conduct of that nature or to cause such a result. Aware of existence of attendant circumstances or believes or hopes that they exist. Knowingly: aware that it is practically certain that his conduct will cause such a result. Aware that conduct is of that nature or that such attendant circumstances exist. (Willful blindness): knowledge established if person is aware of a high probability of attendant circumstance's existence, unless he actually believes that it does not exist. 2.02(7). Recklessly: consciously disregards substantial and unjustified risk that material element exists or will result from his conduct. Negligently: should be aware of a substantial and unjustifiable risk that material element exists or will result from his conduct. Inadvertent. Reasonable person: evaluate from perspective of a person in actor's situation. Physical characteristics considered but hereditary and intelligence are not. Still struggle to balance between subjectivism and objectivism. Statutes: a single mens rea term modifies each actus reus element of the offense, absent a plainly contrary purpose of the legislature. If silent regarding level, element is established if person acts purposely, knowingly or recklessly. 2.02(3). Strict Liability No strict liability except for violations Mistakes of Fact 2.04(1): Mistake is a defense if it negates the mental state required to establish any element of the offense. 2.04(2): Mistake-of-fact not available if actor would be guilty of another offense, had circumstances been as he supposed. Punishment at level of lesser offense. Mistakes of Law 2.02(9): Codifies common law reasonable-reliance doctrine: ignorance of law is no defense unless statute says it is (2.04(1)(b)), or affirmative defense applies (official statement; 2.04(3)). 2.04(1): different-law mistakes. Ignorance or mistake as to matter of different law is a defense if it negates the mens rea required to establish material element of the offense. Handled in same way as mistake of fact under the Code. Actual Causation 2.03(1)(a): but-for test. Multiple sufficient causes: determine whether "result in question" would occur when it did. So each party is but-for cause and no need for substantial factor test. Treats matters of proximate causation as issues instead relating to actor's culpability. 2.03(2) and (3) deal with situations in which the actual result of the defendant's conduct diverges from that which was designed, contemplated, or risked. Issue is whether it may still be said that he caused the prohibited result with required level of culpability. Outline Page 1

2 Decision to attach causal responsibility for social harm to a certain factor is made in common sense manner, or by application of moral intuitions, public policy, or sense of justice. An act that is a direct cause of social harm is also a proximate cause of it. Direct cause is actual cause when no other causal factor has intervened. Intervening cause: independent but-for cause that comes into play after D's act or omission. Various factors assist factfinder in evaluating when intervening cause supersedes D's conduct. 1) De minimis contribution: D's causal responsibility is insubstantial in comparison to intervening. 2) Foreseeability of intervening cause. Dependent intervening cause does not break chain unless highly abnormal or bizarre; independent breaks causal chain unless foreseeable. 3) Intended consequences: can never be too remote. 4) Apparent safety: When defendant's active force has come to rest, court no longer follows it. 5) Voluntary, knowing, informed human intervention: more likely to relieve D. 6) Omission: rarely supersede an earlier, operative wrongful act. Homicide Malice Murder: the killing of another human being with malice aforethought. 4 states of mind. Intent (purpose or knowledge) to kill: probable consequences invite jury to infer intent. Intent (purpose or knowledge) to inflict GBH: person who unjustifiably and inexcusably intends to cause injuries of this level of severity is guilty of murder if victim dies as result. Depraved heart: extreme recklessness/indifference to value of human life. Risk-taking serious enough to display willful and wanton disregard for human life. As good as intended. Felony murder: death resulting from commission of felony constitutes murder. Strict liability for death. Intent to commit the felony constitutes the implied malice. Limits: Inherently dangerous: consider elements in abstract or facts of the case. Merger: felony-murder only if underlying felony is independent of homicide. Assaultivetype felonies merge because felonious purpose is to attack V--no way to do more safely. Res gestae: homicide must occur within time, distance and causal relationship of felony. Killing by non-felon: Agency: rule does not apply if adversary to crime commits homicide. Rule applies if actor is agent of non-actor (accomplices). Proximate cause: liable for any death that is proximate result of felony. Provocative act: Liable for reckless murder if provocative behavior causes retaliation and innocent V killed. Basis is not felony murder. Manslaughter: unlawful killing of another human being without malice aforethought. 2 types: Voluntary / Heat of passion: 4 elements: state of passion, adequate provocation, no cooling off period, causal link between provocation, passion and homicide. Passion: any violent, intense, high-wrought, or enthusiastic emotion. Provocation: early CL had 5 categories: aggravated assault, mutual combat, serious crime committed against close relative, illegal arrest, and observing spousal adultery. Modern law: if unlawful provocation would render any ordinarily prudent person for the time being incapable of that cool reflection that otherwise makes it murder Words alone do not constitute adequate provocation. Reasonable person: objective ordinary person vs. subjectivized by considering characteristics that may measure gravity of provocation and level of self-control to be expected. More willing to use gravity characteristic Cooling off time: If reasonable person would have cooled off. Causal connection: no excuse if intended to kill regardless of intervening provocation. Involuntary / Negligence: a person does an act, lawful in itself, but in an unlawful manner and without due caution and circumspection. Gross deviation from reasonable standard of care. Should be aware of risk, but is not. Pennsylvania Model First degree includes 3 types: Intent (purpose to kill) + specified manner of killing (poison or lying in wait) Intent (purpose to kill) + willful, deliberate, premeditated. Willful: specific intent to kill. Deliberate: quality of thought process. Cool purpose. To measure and evaluate. Premeditated: Quantity of thought process. Thought about beforehand. Length? Felony murder with enumerated felony. Second degree includes 3 (maybe 4?) types: Intent to inflict grievous bodily harm. Depraved heart. Felony murder with unenumerated felony. Regular intent to kill? Not with deliberation and premeditation? Manslaughter: Voluntary / Heat of Passion Involuntary / Negligence Self-Defense Must be triggering condition, necessity (imminence), and proportionality of force. Can successfully claim self-defense if reasonably (objective) and honestly (subjective) believe that elements exist. Aggressor rule An initial aggressor cannot claim self-defense unless he or she renounces his or her initial aggression. An initial aggressor is one whose "affirmative unlawful act is reasonably calculated to produce an affray foreboding injurious or fatal consequences." An initial aggressor renounces his or her initial aggression if "he or she communicates to his or her adversary his or her intent to withdraw and in good faith attempts to do so." Retreat rule Majority rule: an actor is not required to retreat. Minority rule: An actor is required to retreat if he or she knows he or she can do so in complete safety, unless he or she is in his or her castle, in which case he or she is not required to retreat. An aggressor is always required to retreat. Imperfect self-defense D uses deadly force against non-deadly force D is initial aggressor using non-deadly force, victim responds with deadly force, and D matches with deadly force D honestly but unreasonably believes elements exist. (Only some states) Treats matters of proximate causation as issues instead relating to actor's culpability. 2.03(2) and (3) deal with situations in which the actual result of the defendant's conduct diverges from that which was designed, contemplated, or risked. Issue is whether it may still be said that he caused the prohibited result with required level of culpability. D has not acted with requisite culpability unless actual result, including way in which it occurred, was not too remote or accidental in its occurrence to have a just bearing on actor's liability. If no culpability requirement, causation not established unless actual result is probable consequence of actor's conduct. Homicide Murder 210.2(1)(a): kills another purposely or knowingly 210.2(1)(b): kills another recklessly, under circumstances manifesting extreme indifference to the value of human life. (GBH and depraved heart). Felony murder: extreme recklessness is non-conclusively presumed if the homicide occurs while the actor is engaged in, or is an accomplice in, the commission or attempted commission of, or flight from, one of the dangerous felonies specified in 210.2(1)(b). Manslaughter 210.3(1)(a): recklessly kills another: does not need to manifest extreme indifference as in reckless murder. There is no negligent manslaughter (1)(b): kills another under influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse (analogous to heat of passion). Subjective portion: extreme mental or emotional disturbance need not be so far from norm that it is mental illness, but rather it is sufficient that the defendant experienced intense feeling sufficient to cause loss of self-control. Objective portion: Reasonableness of explanation determined from viewpoint of a person in the actor's situation under the circumstances as he believes them to be. So partially subjective because actor's situation incorporates personal handicaps and other relevant external characteristics. Obviously, moral values excluded. Reasonable loss of self-control also objective. Whether it can be understood in terms that arouse sympathy in ordinary citizen. Specific provocative act not required. If there is an act, not required to be from the decedent. Words alone can warrant manslaughter instruction. No rigid cooling off rule : negligent homicide: same as common law involuntary manslaughter. Self-Defense Deadly force means "force which the actor uses with the purpose of causing or which he knows to create a substantial risk of causing death or serious bodily injury." 3.11(2) Triggering condition: The use or threatened use of "unlawful force" (see 3.11(1)) Necessity: The use of force must be "immediately necessary" Dispenses with imminence requirement. Proportionality: Deadly force can only be used to protect against "death, serious bodily harm, kidnapping or sexual intercourse compelled by force or threat." Aggressor rule almost the same as common law. "with the purpose of causing death or serious bodily injury, provoked the use of force against himself [or herself] in the same encounter." Narrower because if nondeadly aggressor, does not lose self-defense privilege if V escalates Renunciation rule: Whatever suffices to end the "encounter" Retreat rule: An actor cannot use deadly force if he or she "knows that he [or she] can avoid the necessity of using such force with complete safety by retreating." Exception for home, or even place of work. Permission to use force is based on belief, subject to 3.09(2). "The use of deadly force is not justifiable under this Section unless the actor believes that such force is necessary to protect himself against " Example: if D purposely kills V because he negligently believes V is about to kill him, selfdefense is available to D if charged with purposely, knowingly or recklessly killing V, but not if charged with negligent homicide. If D is reckless with regard to V being aggressor, Outline Page 2

3 Imperfect self-defense D uses deadly force against non-deadly force D is initial aggressor using non-deadly force, victim responds with deadly force, and D matches with deadly force D honestly but unreasonably believes elements exist. (Only some states) Reasonable person? Prior mugging victim? Experienced subway rider? Racist? Female? Diminutive? Knowledge of V's background? Battered women? Necessity 6 conditions: D must reasonably believe the harm avoided is imminent. D must reasonably believe no adequate legal alternative exists. Harm caused < harm avoided. Harm caused is the harm the law defining the offense sought to prevent. Harm avoided is the harm D reasonably foresaw avoiding at the time of choice. D must believe he has chosen the lesser evil and must in fact have done so. Value judgment must be "correct" based on reasonably foreseeable harm. Direct causal relationship between D's action and the harm avoided. Not pre-empted by legislative judgment. Clean hands, i.e., D was not negligent in bringing about the situation requiring a choice of harms. 3 limits: Limited to situations created by natural forces. Not applicable to murder. Limited to the protection of persons and property. Duress D must reasonably believe that the threat is one of death or serious bodily injury to D or a close relative. D must reasonably believe the threat is real or genuine. D must reasonably believe that the threatened harm is imminent (upon D's failure to comply with the demand). D must reasonably believe that he or she has no reasonable opportunity to escape except through compliance with the demand. Clean hands, i.e. D was not negligent in creating the conditions giving rise to the claim of duress. Limited to threats from another person. Does not apply to murder. Intoxication Not limited to alcohol. Involuntary intoxication if: coerced, mistaken, unexpected side effect, enhanced effect due to pre-disposing condition. Entitled to acquittal in all circumstances in which voluntary intoxication is defense. Plus should be acquitted of general-intent offenses. Also excused if temporarily insane. Voluntary intoxication: knowingly ingests a substance he knows or should know can cause him to become intoxicated. General intent: voluntary intoxication is not a defense. Specific intent: voluntary intoxication is a defense if, as a result of his intoxication at the time of the crime, he was incapable of forming or did not in fact form the specific intent required in the definition of the offense. Unconsciousness not a defense if condition brought on by voluntary consumption. Can only use it to show you weren't the one who committed the act. Temporary insanity not a defense. Insanity Insanity is legal term; mental illness is broader and definition is open to accommodate developing mental understanding. M'Naughten test: insane if, at time of act, laboring under such a defect of reason arising from disease of mind that 1) he did not know nature and quality of the act; or 2) if he did know it, he did not know what he was doing was wrong. "Know" may be narrow or broad; "nature and quality" is potentially narrow; "wrong may refer to legal or moral wrongdoing (if moral, question is whether D knowingly violated societal standards); if moral, may also apply deific decree (if believe acting on God's command, legally insane). Irresistible Impulse test: insane if, as a result of a diseased condition of the mind, he is, by an insane impulse, irresistibly driven to commit the crime. Focuses on volition. Actor lacked the capacity to control the desire. Product (Durham) test: person should be excused if his unlawful act was the product of a mental disease or defect. Decide whether mental disease or defect exists and whether it was but-for cause of criminal conduct. Only in New Hampshire. Leaves power with expert witnesses to prove insanity by defining mental disease. Not guilty by reason of insanity (NGRI): automatically committed to mental facility. Guilty but mentally ill (GBMI): receives same sentence as guilty, but may receive psychiatric care in prison. Attempts Attempt occurs when person, with intent to commit an offense, performs some act done towards carrying out the intent. May not be convicted of both attempt and target offense. Objectivism: Actor's conduct must manifest criminality. Punished for causing fear in mind of reasonable person. Complete but imperfect attempt: actor performs all of the acts he set out to do, but fails to attain his criminal goal. Incomplete attempt: actor does some of the acts necessary to achieve criminal goal, but quits or is prevented from continuing. Two intents: actor must 1) intentionally commit the acts that constitute the actus reus of the attempt itself; and 2) must intend to commit the target offense. Attempt is specific intent offense even if target offense is general intent crime. Prosecutor sometimes required to prove intent to commit target offense that requires justifiable under this Section unless the actor believes that such force is necessary to protect himself against " Example: if D purposely kills V because he negligently believes V is about to kill him, selfdefense is available to D if charged with purposely, knowingly or recklessly killing V, but not if charged with negligent homicide. If D is reckless with regard to V being aggressor, recklessness as to relevant facts would render him guilty of offense based on recklessness. Necessity 3.02: Did D believe committing the crime was necessary to avoid a harm? Was the harm sought to be avoided in fact greater than the harm sought to be prevented by the law defining the offense? What was the harm sought to be avoided? What is the harm sought to be prevented by the law defining the offense? Does some other provision deal with the specific situation involved? Does it appear that the legislature intended to otherwise preclude the defense? Defense is unavailable if prosecuted for crime of recklessness or negligence and acted recklessly or negligently in bringing about emergency or in evaluating necessity of conduct. Example: D recklessly starts a fire that threatened to burn down homes; D justified in purposely burning V's property to stop it, although he could be prosecuted for original act. Not limited to emergencies created by natural forces, is not limited to physical harm to persons or property, and, most controversially, may be employed in homicide prosecutions. Duress 2.09: D must be compelled to commit offense by use, or threatened use, of unlawful force by the coercer upon her or another person. A person of reasonable firmness in her situation would have been unable to resist the coercion. Not available if actor recklessly placed himself in a situation in which it was probable that he would be subjected to coercion. If negligently placed self in situation, defense is available for all offenses except those for which negligence establishes culpability. Available for non-deadly and non-imminent threats. Imperiled person does not need to be D or family member. Intoxication 2.08: any form of intoxication is a defense to criminal conduct if it negates an element of the offense. Not guilty if lacked state of mind required in respect to an element of the crime. Exception: If unaware of a risk of which he would have been aware if he had been sober, unawareness is not a defense in prosecution for recklessness crime. Negligent actor may be convicted of crime of recklessness. So negates purpose and knowledge but not recklessness and negligence. If have different mental states in statute, may negate one and not the other. May raise unconsciousness as defense in voluntary act claim, although voluntary act may be found prior. Even if failure of proof defense fails (elements satisfied), may still raise affirmative defense if suffered from pathological intoxication and condition qualifies under test of insanity. Insanity MPC test: 4.01(1): insane if, as result of mental disease or defect, he lacked substantial capacity to: 1) appreciate the criminality (or moral wrongfulness) of his conduct; or 2) to conform her conduct to the requirements of the law. "Appreciate" rather than "know," avoids "impulse," and modifies both prongs with "lacks substantial capacity." 4.01(2): Mental diseases do not include abnormality manifested only by repeated criminal or antisocial behavior. Excludes psychopaths. Federal statutory test: insane if, as result of a severe mental disease or defect, unable to appreciate 1) nature and quality of conduct; or 2) the wrongfulness of her conduct. Attempts 5.01: attempt consists of 1) purpose to commit target offense; and 2) conduct constituting a substantial step toward commission of the target offense. Subjectivism: Focus on actor's intent to commit crime, which conduct corroborates. Punished for wrong of forming intent to commit a crime. 5.01(1)(a) and (1)(b) pertain to completed attempts. (1)(a) for conduct; (1)(b) for results. 5.01(1)(c) for incomplete attempts, in conjunction with 5.01(2). Two exceptions to purpose requirement: 1(b) and 1(c) implicitly provide that person need only believe that result crime will occur. "acting with the kind of culpability otherwise required for the commission of the crime" means that purpose or belief do not necessarily encompass attendant circumstances. If could be convicted of reckless statutory rape if successfully completed recklessly, can be convicted of attempted statutory rape if reckless as to age. If strict liability, then can be convicted without mental state. Outline Page 3

4 or is prevented from continuing. Two intents: actor must 1) intentionally commit the acts that constitute the actus reus of the attempt itself; and 2) must intend to commit the target offense. Attempt is specific intent offense even if target offense is general intent crime. Prosecutor sometimes required to prove intent to commit target offense that requires lower mental state. All but two states hold that attempted felony-murder is not a thing. Can be convicted of attempted voluntary manslaughter, but not attempted involuntary manslaughter. Attempted strict liability crimes: if interrupted before act, should it be sufficient that actor is just as culpable regarding attendant circumstance as required for target offense? Factors on where to draw line between preparation and perpetration: 1) whether act appears to be dangerously close to causing tangible harm; 2) seriousness of the threatened harm; 3) strength of evidence of mens rea. Substantial step test: same as MPC. Must have purpose to commit target offense; and must have conduct constituting substantial step toward commission of target offense. Last act test: Attempt only occurs when person commits all acts he believes are necessary to commit target offense. Must pull trigger. Would be virtually impossible to prevent crime. Physical proximity test: Actor must have it within his power to commit the crime almost immediately. Dangerous proximity test: danger of success is very great. 3 factors: nearness of danger; greatness of harm; degree of apprehension felt. 4 armed men driving around not attempt. Indispensable Element test: Actor who does not yet possess a necessary instrumentality for the crime has not yet crossed the line. Arbitrary. Probable Desistance Test: Will likely find an attempt when, if not interrupted, the actor has reached a point where it is unlikely that he will voluntarily desist in his effort to commit the crime. Prescription refills. Unequivocality test: attempt occurs when a person's conduct unambiguously manifests her criminal attempt. Defenses: (Pure) legal impossibility is a defense; factual impossibility is not. Factual impossibility: person's intended end constitutes a crime, but fails to consummate offense because of attendant circumstance unknown to him or beyond his control. Pickpocket. If circumstances were as actor believed or hoped, crime would have been committed. Inherent factual impossibility: May be a defense. Method to accomplish crime is one that a reasonable person would view as completely inappropriate to the objectives sought. Voodoo. Pure legal impossibility: When law does not proscribe the goal that the defendant sought to achieve. 1) Person performs lawful act believing it's a crime but there's no crime to charge them with. 2) Actor's conduct is prohibited, but cannot legally constitute the offense charged. Add number "1" to check, may constitute some offense, but not offense charged, forgery, because tampered with legally immaterial part of the check. So no attempted forgery. Male believes he raped woman by touching her breasts, cannot be convicted of attempted rape, although can be convicted of battery. Attempt to violate law not encompassed by conduct. Hybrid legal impossibility: Not a defense (most states). Actor's goal is illegal, but commission of offense is impossible due to a factual mistake regarding the legal status of some attendant circumstance that constitutes an element of the charged offense. Receive unstolen property believing it was stolen; pickpocket stone statue; hunt deer out of season by shooting stuffed animal. Can characterize as factual or hybrid legal. Semantics alone determine. Abandonment defense: Many courts decline to recognize. If recognized, applies only if defendant voluntarily and completely renounces criminal purpose. Not voluntary if unexpected resistance. Not complete if only postponed. Subjectivist grounds. Accomplice Liability Secondary party is accomplice to primary party if he intentionally assists P to engage in conduct that constitutes the crime. Intends to assist and in fact assists. Primary party's acts become his acts by derivative liability. Principal in first degree: physically commits acts or commits offense using innocent instrumentality. Perpetrator. Principal in second degree: intentionally assisted in commission of crime in presence of principal in first degree. Lookout or getaway. Accessory before the fact: Not present when crime is committed. Solicits, counsels or commands principal in first degree. Accessory after the fact: with knowledge of another's guilt, intentionally assists the felon to avoid arrest, trial or conviction. Not getaway driver; helps once property reaches point of temporary safety. Treated as separate and less serious than offense committed. Actus Reus: Three forms of assistance: Physical conduct: furnish with instrumentality, drive getaway car, etc. Psychological influence: S incites, solicits or encourages P to commit the crime. Encouragement is most controversial. Presence alone insufficient, but coupled with very little else can justify finding based on encouragement. Ex: prior agreement to assist. Omission: only if have legal duty. Mother who fails to make effort to prevent crime. S is not accomplice if he performs an act to assist P but his conduct is wholly ineffectual. But once determined that S assisted P, degree of aid or influence is immaterial. Still guilty if, but for assistance, P would have succeeded anyway. S must help but need not cause the crime. Can result in disproportionate punishment and can ensnare person whose connection to a crime is exceedingly remote. Mens Rea: Dual intents: 1) the intent to assist the primary party to engage in the conduct that forms the basis of the offense; and 2) the mental state required for commission of the offense, as provided in the definition of the substantive crime. Negligent to encourage P to drive negligently-->guilty of negligent homicide. Attendant circumstance: appropriate rule is probably that, as long as secondary party acts with the purpose of assisting the principal in the conduct that constitutes the offense--and has the level of culpability required as to the prohibited result, if any, of the offense--he should be deemed an accomplice if his culpability as to the attendant circumstance would be sufficient to convict him as a principal. If rape statute requires recklessness as to age, S should be responsible if acted recklessly with respect to age. Natural and probable consequences: in most jurisdictions, a person encouraging or facilitating the commission of a crime may be held criminally liable for any other offense that was natural and probable consequence of the crime aided and abetted. Crime B must be within normal range of outcomes that may be expected to occur if nothing unusual has intervened. "acting with the kind of culpability otherwise required for the commission of the crime" means that purpose or belief do not necessarily encompass attendant circumstances. If could be convicted of reckless statutory rape if successfully completed recklessly, can be convicted of attempted statutory rape if reckless as to age. If strict liability, then can be convicted without mental state. 1(c): substantial step. Focuses on what's already been done. 5.01(2): not substantial step unless strongly corroborates defendant's criminal purpose. 5.01(3): may be convicted of criminal attempt, even though crime was neither committed nor attempted by another, if: 1) the purpose of his conduct is to aid another in commission of the offense; and 2) such assistance would have made him an accomplice if offense committed or attempted. Hybrid legal impossibility cases treated as factual impossibility cases and are no defense. Pure legal impossibility is still a defense. Abandonment: not guilty is 1) abandons his effort to commit the crime or prevents it from being committed; and 2) his conduct manifests a complete and voluntary renunciation of his criminal purpose. Attempts subject to same punishment as target offense, except felonies of first degree. Accomplice Liability 2.06: a person can be convicted of an offense if he personally commits the crime, or if his relationship to the person who commits the crime is one for which he is legally accountable. Three forms of accountability recognized: Innocent instrumentality: D legally accountable for conduct of innocent or irresponsible person X if D 1) has mental state sufficient for commission of the offense; and 2) causes X to engage in the criminal conduct. Miscellaneous accountability: if law defining an offense so provides. Accomplice accountability: if accomplice of other in the commission of the criminal offense. 2.06(3)(a): S is an accomplice of P in the commission of an offense if, with the requisite mens rea, he: (1) solicits P to commit the offense; (2) aids, agrees to aid, or attempts to aid P in the planning or commission of the offense; or (3) has a legal duty to prevent the commission of the offense, but makes no effort to do so. Actus Reus: Six forms of assistance: Solicitation (request or command) Solicitation (encouragement) Aiding Agreeing to aid: even if S does not fulfill promise. Code does not require proof of encouragement. Attempting to aid: even if aid proves ineffectual. Opens window but P uses door. Relate to 5.01(3): if P stopped before taking substantial step, S may be guilty of attempted robbery through his own conduct and P is not. Omission: if duty to prevent commission of the offense, with mental state. Mens Rea: Assist with purpose of promoting or facilitating the commission of the offense. 2.06(4): when causing a particular result is an element of a crime, person is accomplice if: (1) he was an accomplice in the conduct that caused the result; and (2) he acted with the culpability, if any, regarding the result that is sufficient for commission of the offense. 3 step process: Determine P's potential responsibility. Ask whether S was accomplice in conduct that caused result. Ask whether S acted with culpability in regard to the result that is sufficient for commission of the offense. Effect of 2.06(4) s to make accomplice in conduct that causes result guilty of felony murder if common law felony murder applies because possessed level of culpability necessary in regard to result, i.e., no culpability. Ambiguous as to attendant circumstances. Court may determine that purpose requirement extends to attendant circumstances or that the culpability of the substantive offense controls. Rejects natural-and-probable consequences doctrine. 2.06(6): Not an accomplice if victim of offense or purchaser of narcotics. Abandonment: terminates participation if: (1) neutralizes his assistance; (2) gives timely warning Outline Page 4

5 responsible if acted recklessly with respect to age. Natural and probable consequences: in most jurisdictions, a person encouraging or facilitating the commission of a crime may be held criminally liable for any other offense that was natural and probable consequence of the crime aided and abetted. Crime B must be within normal range of outcomes that may be expected to occur if nothing unusual has intervened. Criticism: accomplice may be convicted of crime of intent (e.g. kidnapping) although his culpability regarding its commission may be no greater than that of negligence. Abandonment: S can avoid accountability if he communicates his withdrawal to the principal and make bona fide efforts to neutralize the effect of his prior assistance. Ambiguous as to attendant circumstances. Court may determine that purpose requirement extends to attendant circumstances or that the culpability of the substantive offense controls. Rejects natural-and-probable consequences doctrine. 2.06(6): Not an accomplice if victim of offense or purchaser of narcotics. Abandonment: terminates participation if: (1) neutralizes his assistance; (2) gives timely warning to the police of the impeding offense; or (3) in some other manner attempts to prevent the commission of the crime. Outline Page 5