Criminal Law Fall 2007 Professor Dutile Only Phi Alpha Delta members have permission to use this outline I. Intro to Criminal Law a.

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1 I. Intro to Criminal Law a. Jury Selection i. Challenge for cause counsel must prove that the juror is unable to serve impartially (unlimited number) ii. Peremptory challenge counsel may excuse a juror without giving a reason (usually a fixed number) b. Forfeiture if an object is used for a criminal purpose, it becomes property of the government c. Discretion vs. Ministerial i. Discretion the judge has a range of acceptable possibilities for imposing punishments ii. Ministerial no discretion is allowed; there is a set punishment II. Punishment a. Five reasons (DR RID) i. Denunciation ii. Retribution 1. These two focus on a criminal s blameworthiness iii. Rehabilitation iv. Incapacitation 1. It has a predictive element, making some judgment of the dangerousness of the criminal a. False positives imprisoning those who would not commit the crime again b. False negatives not imprisoning those who would commit the crime again v. Deterrence 1. These three focus on making punishment useful to society by reducing crime b. Corpus delicti the body of the harm the definition of a crime i. Some harm is shown ii. It was criminally caused 1. Must be a corroboration between the first two iii. Who did it? c. Probation vs. Parole i. Probation a judicial function; the probation officer supervises you upon your release from COURT ii. Parole an executive function; you see a parole officer after spending time in PRISON d. Goal of punishment to be proportional to the crime i. 3 ways punishment can be cruel and unusual 1. Grossly disproportional 2. The punishment is inherently cruel and unusual 3. Method of allocation e. Common law year and a day rule

2 III. f. Rule of Lenity Construing a penal statute as favorably to the defendant as its language and the circumstances of its application may reasonably permit i. Also called strict construction g. Keeler case court could not convict for three reasons i. Legislative intent ii. Jurisdiction iii. Violation of Keeler s Due Process (right to fair warning) 1. Due Process is the ex post facto judicial analogue 2. Ex post facto prevents: a. Making criminal what was innocent when the crime was committed b. A law that makes the crime greater than it was c. A law that enhances the penalty d. A law that alters the legal rule of evidence h. The Jury i. Has the power of nullification of the law ii. They do not have to be informed of this power i. Statutory Interpretation by judges i. Intentionalism 1. Looks at legislative intent ii. Textualism 1. Looks only at the text of the statute 2. Espoused prominently by Scalia iii. Dynamic Statutory Interpretation 1. The statutory text 2. The original legislative intent 3. The subsequent evolution of the statute and its present context j. Specificity i. Penal laws should be written in plain language, easy to remember, and publicly presented to the people 1. Vagueness ambiguity of statute 2. Overbreadth too broad, covering behavior it should not 3. Lenity allows the statute to stay valid, while invalidating its application to a particular case 4. Something not within the statute ii. Laws can be challenged: 1. On its face the law as it is written 2. As applied statute vague or overbroad at the margins iii. Knowledge of the law 1. Specific notice I actually know the law 2. Constructive notice The law will presume me to know Conduct a. Elements of an offense i. Actus reus (use conduct or act )

3 ii. Mens rea iii. Attendant circumstances b. Conduct helps prove what the offender was thinking; blameworthiness accompanies actions c. What is an ACT? i. Status is NOT conduct, and is not punishable ii. Voluntariness is an essential element for criminal liability 1. MPC lists the following acts as involuntary: a. A reflex or convulsion b. A bodily movement during unconsciousness or sleep c. Conduct during hypnosis d. A bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual 2. Conduct is voluntary if the actor made a conscious choice to act, even if coercion influenced the choice iii. Time-framing When does the act begin? Decina case 1. Automatism a situation where the actor had no control over what he did 2. Amnesia presumes that the act was perfectly voluntary, but retrospectively the actor doesn t remember what he did iv. Omission Some statutes make failure to act an element of the crime; others make failure to report or rescue an element of a crime 1. Omission, coupled with duty, is often equivalent to an act. Four situations a. Where a statute imposes duty to care for another b. Where one stands in a certain status relationship to another c. Where one has assumed a contractual duty to care for another d. Where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid 2. MPC Omission a. Liability may not be based on omission unless: i. The omission is expressly made sufficient by the law defining the offense, or ii. A duty to perform the omitted act is otherwise imposed by law v. Possession 1. Actual something is on someone s person, in his clothing, or within his custody 2. Joint more than one person may possess the same item 3. Constructive actual possession is lacking, but the person nonetheless exercises some sort of control over the item

4 IV. 4. MPC Possession is an act 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 vi. Vicarious liability the exception in criminal law 1. Usually involves employer/employee relationships 2. Often nothing more than a fine Mental States a. Mens rea the guilty mind b. Four primary Mental States of MPC i. Purpose ii. Knowledge iii. Recklessness iv. Negligence 1. An individual acts with all lower mental states (purpose includes knowledge, recklessness, and negligence; knowledge includes the two below, etc.) 2. If a statute does not specify a mental state, then reckless is assumed 3. When one of the four mental states is described, it applies to all material elements of the offense unless otherwise noted v. It is often difficult to decipher what the word intent means in statutes; most commonly, it has meant purpose c. Offense Analysis i. Divides crimes into categories of specific intent, general intent, and strict liability, but does not adequately define specific or general intent d. Element Analysis used by MPC i. Breaks down crimes into elements and examines the mental state separately for each element e. Other minds problem it is difficult to know what was going on inside the mind of anther i. Direct evidence evidence that if believed establishes the point it is offered to prove without the necessity of drawing inferences ii. Circumstantial evidence requires the use of one or more inferences to prove a point f. Strict Liability crimes that require no mental state i. Rejected by the MPC g. Mistake of fact i. Can be used to negate the mens rea element of a crime ii. People v. Rypinski 1. Jury should have been charged that recklessness was a culpable mental state iii. Reasonableness requirement

5 1. To be a defense, legislatures often say a mistake of fact must be reasonable 2. Undermines the criminal code, b/c it essentially absolves people of all mental states other than negligence iv. Liability for Lesser Legal Wrongs 1. MPC allows mistake of fact to exonerate if it negates the mental element necessary for a crime 2. Limitation: The defense is not available if the defendant would have been guilty of a lesser crime if the situation were as he supposed a. Mistake of fact will then only reduce the grade and degree of offense h. Mistake of Law i. Never admissible as a defense to crime ii. United States v. Baker 1. Defendant claims he did not know selling counterfeit watches was a crime 2. Holding: He knew of his ACT; he did not need to know the LAW in order to be guilty of violating it iii. Exceptions 1. Some very specific laws require knowledge of the law as a prerequisite to culpability 2. Ratzlaf v. United States a. Structuring of bonds for less than $10,000 to avoid reporting b. S.C. held that the govt. needed to prove Ratzlaf knew his structuring was unlawful i. The willfulness component of statute required both knowledge and intent ii. He did not have knowledge i. Official Interpretation i. Cox v. Louisiana 1. Picketers were told where they could demonstrate by police, and were then arrested 2. S.C. Holding: Reliance on official interpretation can prevent one from violating a statute a. To uphold Cox s conviction would violate due process b. The officials had effectively defined what constituted near the courthouse; Cox did not violate this ii. Hopkins v. State 1. Priest erected a sign soliciting marriages. 2. Argued that the state s attorney told him he was not in violation

6 3. Holding: Advice from private counsel does not remove culpability for an offense j. Mistake regarding circumstances that include a legal element i. Regina v. Smith 1. Smith installed flooring and roofing on his rental property, which became property of the landlord upon installation 2. Smith removed the flooring upon move-out, thinking the property was his to damage 3. Holding: No offense is committed if the person damages property he believes to be his own k. Willful Blindness i. Is the equivalent of knowledge when assessing mens rea ii. Is established when one knows of the high probability of the existence of a fact, and deliberately avoids knowing that fact 1. Not applicable if the actor believes the fact did not exist 2. Must be proven not only that the actor SHOULD have known, but that he DID know of the high probability of a given fact iii. United States v. Jewell 1. Drove car containing marijuana across the border 2. He remained purposely ignorant of the fact that drugs were in the car, so he was willfully blind 3. He thus possessed the requisite mens rea of knowledge l. Conditional Purpose/Intent i. Holloway v. United States 1. Statute banned carjacking with intent to use deadly force 2. Carjacking case where the defendants presented a gun at the time of stealing the car 3. They would not have used deadly force unless necessary 4. Holding: At the moment the carjacker holds the gun and asks for keys, he plainly exhibits the forbidden intent m. Intoxication i. People v. Hood 1. A drunk person can still form an intent to do something. ii. Montana v. Egelhoff 1. Holding: A state has a right to preclude juries from considering intoxication as a factor in determining a defendant s mens rea 2. Intoxication is typically not a factor in determining mens rea a. There are practical problems when determining to what extent alcohol played a role in an individual s behavior n. Specific and General Intent i. People v. Sally Mistook cases (imaginary cases)

7 ii. Specific intent a special mental element which is required above and beyond any mental state required with respect to the actus reus of a crime iii. General intent when a defendant intended to do a proscribed act which is defined only by a description of the act 1. Burglary was a specific intent crime in the Mistook cases 2. Trespass, since the statute did not reference intent, was a general intent crime 3. Leaving out a refrigerator was a strict liability crime iv. Moral Wrong doctrine - although ignorance or mistake would otherwise exonerate, that exoneration is not available if the defendant s conduct, with the facts as the defendant believed them to be, would still be morally wrong v. Legal Wrong doctrine - although ignorance or mistake would otherwise exonerate, that exoneration is not available if the defendant s conduct, with the facts as the defendant believed them to be, still constitutes a legal wrong, even though it may be a lesser legal wrong 1. The traditional doctrine states that the offender will still be culpable for the greater offense even if his mental state only corresponds to the lesser offense 2. The Model Penal Code holds the offender to the lesser offense vi. Gordon v. State 1. Gordon voted, honestly believing he was He made a mistake of fact and did not have the intent that made up the crime vii. United States v. Williams 1. Williams robbed a bank while intoxicated (alcohol and drugs) 2. Def. argued that he was too drunk to have the intent to steal 3. Holding: Drunkenness does not negate intent. He had the capacity to, and did, intend to steal. viii. Constitutional Limitations on Mens Rea 1. Lambert v. California a. Lambert did not register in L.A., despite the fact that she was a felon b. This would seem to be a mistake of pure law 2. Holding: She is not culpable, for many reasons a. She didn t DO anything b. There was very little likelihood that she could have known her responsibility c. There is a very low level of state interest d. Lambert has proved to be the exception, rather than the rule 3. Smith v. California

8 a. Statute whoever sells obscene material is guilty of a crime b. Smith argued he didn t know his stuff was obscene, but CA said it was a strict liability crime c. Holding: This cannot be a strict liability crime based on the first amendment. But the Court doesn t say how to correct the law. V. HOMICIDE a. Three non-mental elements of homicide i. Some form of conduct ii. A death iii. A resulting link between the conduct and the death b. Premeditation and Deliberation i. Malice aforethought typically seen as intent to kill ii. 4 categories of Malice Aforethought 1. Intent to kill 2. Intent to do serious bodily injury 3. Extreme Recklessness indifference to the value of human life 4. Felony Murder if you commit a felony and someone dies, it is murder a strict liability offense iii. If one of the above categories is established, the charge can be elevated from murder to aggravated murder if additional mental states, such as premeditation and deliberation, are present iv. State v. Bingham 1. Bingham raped and strangled a retarded woman. Did he premeditate/deliberate? 2. Holding: To prove premeditation, the evidence must show that a defendant not only had time to deliberate, but that he actually did so a. Intent and premeditation are completely separate entities v. Commonwealth v. Carroll 1. Defendant placed a loaded pistol by his bedside, and one night killed his nagging wife 2. Argued that he did not premeditate, but acted instantaneously 3. Holding: There is no set length of time for premeditation and deliberation a. To premeditate and deliberate, the actor must form the intent: i. Before he acts ii. As a result of weighing the consequences of his conduct c. The Provocation Doctrine i. Typically reduces murder to manslaughter

9 ii. Tiers of homicide: 1. Premeditated and deliberated murders 1 st degree 2. Murder that lacks any aggravating element 2 nd degree 3. Voluntary manslaughter based on provocation iii. State v. Lawton 1. Lawton was beaten at a bar, went home and got a gun, and came back and killed one of his supposed assailants 2. Holding: Traditional Manslaughter test a. Homicide is reduced to manslaughter if it is committed in the heat of passion resulting from reasonable provocation b. Reasonable person standard Would a reasonable person have had clouded judgment in the same situation c. Only legally adequate provocation will suffice d. Burden of proof is on the PROSECUTION to prove absence of provocation iv. Categories of Conduct which constitute Legally Adequate provocation 1. Mutual Combat 2. Assault 3. Battery 4. Illegal Arrest 5. Adultery 6. Violent or Sexual Assault on a close relative v. Dennis v. State 1. Dennis caught his wife about to engage in a sex act with another man; he shot the man nine times and killed him 2. Holding: Legally adequate provocation applies only to sexual intercourse, not sexual acts vi. Ohio v. Shane 1. Shane killed his fiancée when she told him she had been unfaithful 2. Holding: Words expressing infidelity do not make up legally adequate provocation a. Words only doctrine words alone do not constitute provocation to reduce murder to manslaughter i. A bright line rule a rule that sacrifices some logic for predictability b. Time-framing if a person has time to cool down, then the provocation doctrine does not apply vii. State v. Pierce 1. Pierce shot and killed LaPorte for having an affair with his wife over many months

10 2. Holding: Killing not performed in the heat of passion, because the period of time that elapsed between the provocations and the killings was enough to negate any manslaughter charges viii. Battered Woman s Syndrome 1. Brooks v. State a. Mrs. Brooks had been abused by previous boyfriends, an ex-husband, and Mr. Brooks b. One day when Mr. Brooks was pursuing her, drunk and boisterous, she shot and killed him c. She raised as a defense her previous beatings, rather than fear of a FUTURE beating this is why she did not win her case; she lacked the provocation to kill 2. Can possibly be a defense in some jurisdictions ix. General Provocation Notes 1. Mitigates malice and reduces murder to manslaughter a. The victim has to be the actual provoker 2. Four part objective/subjective test a. Was this in a state of hot-bloodedness? b. Would a reasonable person have been in a state of hot-bloodedness? c. Did this cool off? d. Would a reasonable person have cooled off in that period of time? 3. Words-only doctrine a. Words alone do not constitute legally adequate provocation b. Exception: Informational words words that recreate for the something that would have been adequate provocation x. MPC s Extreme Mental or Emotional Disturbance Provision 1. No categories of provocation 2. Homicide does not necessarily need to be triggered by extreme emotional disturbance, but is committed under the influence of the disturbance 3. Provision does not require any particular timeframe 4. Allocates much more authority to the jury than the common-law approach 5. Reasonableness is determined from the viewpoint of the actor, with the circumstances as he believes them to be xi. Heterosexual vs. Homosexual Advances 1. Homosexual advances ARE sufficient provocation 2. Heterosexual advances are NOT d. Reckless Killings i. Extreme Recklessness = Implied Malice

11 1. Risk-taking, with awareness of the risk, with reckless deviation from a reasonable standard of care, can amount to murder 2. Berry case a. Two required elements of implied malice i. Objective Risk ii. Subjective awareness of that risk ii. Model Penal Code Approach to Reckless Murder 1. Criminal homicide constitutes murder when it is: a. Committed recklessly b. Under circumstances manifesting extreme indifference to the value of human life 2. Also a reckless manslaughter charge in MPC a. Does not show extreme indifference e. Manslaughter i. Subjective awareness of a risk of death, OR ii. Some form of negligence 1. To constitute wanton or reckless conduct, grave danger to others must have been apparent, and the chose to run the risk rather than alter his conduct iii. Actor does not have to be aware of the risk objective standard iv. MPC approach required consciousness of substantial and unjustifiable risk f. Negligent Killing i. Requires GROSS negligence a higher standard than ordinary or simple negligence that is required in torts ii. The risk-taking must be linked to the death to establish causality iii. MPC 1. Criminal homicide constitutes negligent homicide when it is committed negligently 2. Negligent homicide is a felony of the third degree g. Felony Murder i. Holds a felon and his accomplices liable for murder when a killing is committed in the perpetration of, or an attempt to perpetrate, a felony 1. Has a parallel of misdemeanor manslaughter unlawful act doctrine a. Misdemeanor must be malum in se bad in itself ii. Has a strict liability component with respect to the actor s mental state regarding the death iii. Five limitations 1. Enumeration a. Legislatures can list the felonies that support a felony-murder conviction b. The absence of a felony from the list excludes it as a possible basis for a felony-murder charge

12 2. The inherent dangerousness requirement a. The felony-murder rule is typically only applied to felonies that are inherently dangerous i. A felony is inherently dangerous when it carries a high probability that death will result 3. The Merger doctrine a. If a felony merges with a homicide, that means it cannot support a felony murder charge b. Also called the independent felony rule c. Its function is to preserve the idea of manslaughter 4. The agency rule ( in furtherance ) a. The homicide must be committed in the course of and in furtherance of the commission or attempted commission of any felony 5. Res Gestae, or duration requirement (is it still in progress) a. Analyzes how closely the killing is tied to the felony b. Focuses on: i. Time 1. Was the felony still in progress? 2. How much time elapsed b/w completion of the felony & the death ii. Distance 1. Between place of felony and place of death iv. MPC approach 1. Incorporates a presumption that someone committing or attempting to commit the listed felonies manifests an extreme indifference, a mental state that qualifies for murder h. Provocative Act Doctrine 1. Prosecutor must prove a. The felon(s) harbored malice aforethought b. The killing was attributable to the act of the or his accomplice c. The now-established murder was committed during one of the felonies enumerated in a statute 2. This doctrine differs from felony murder a. It is a way of getting around the agency limitation i. Capital Punishment i. Most felonies carried the death penalty at common law ii. Gross disproportionality violates the 8 th amendment (cruel & unusual punishment) iii. People who cannot be given the death penalty 1. Mentally retarded

13 II. 2. Insane 3. People whose crimes were committed under the age of 18 a. This is a bright line rule iv. Method of Allocation the death penalty cannot be freakishly applied v. Refinements to the death penalty 1. The jury must have proper instruction 2. Death penalty cannot be mandatory 3. Victim impact statements are admissible 4. is permitted to submit any mitigating factors he/she wishes 5. If the jury is going to be talked to about the dangerousness of, you also have to allow the jury to be told that can get life w/o parole vi. There is a death belt across the South 1. Virginia has the highest execution rate vii. Death penalty must be, at minimum, murder for murder, usually with another aggravating factor present 1. Aggravating factor must be found by a jury 2. Unconstitutional for non-life-taking offenses viii. Racial disparities 1. Killers of white victims more likely to be given the death penalty Causation a. When a crime requires a result, the prosecution must prove not only that result, but that the s conduct caused that result b. Cause in fact i. But for cause; sine qua non ii. Standard Test without s act the death would not have occurred iii. Modified Standard Test used when more than one act caused the death 1. Was each act a substantial factor in bringing about the result iv. A necessary but not sufficient condition for criminal liability c. Proximate Cause i. Legal Cause, or cause in law 1. Result must occur in a natural and continuous sequence 2. is responsible for the natural and foreseeable consequences that follow from his act a. Simple negligence on the part of physicians is foreseeable b. A subsequent actor sometimes insulates a prior actor from criminal liability i. Second actor cases consider the relative blameworthiness of the two parties; also

14 III. consider how the second piece of conduct is responsible to the first 1. Intervening causes vs. superseding causes 3. Causation alone is not equivalent to criminal liability a. Mental state and voluntariness must still be shown d. To determine cause, you must look at: i. Probability ii. Blameworthiness iii. Responsiveness (is the second cause a response to the actor s conduct?) e. Model Penal Code i. Conduct is the cause of a result when it is an antecedent but for which the result in question would not have occurred Attempt and Solicitation a. An anticipatory offense a crime that looks forward to the commission of some other crime, often referred to as the target offense i. Anticipatory offenses are also called inchoate offenses b. MPC i. 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. Any attempt, solicitation, or conspiracy to commit a felony of the first degree is a felony of the second degree ii. Definition of attempt 1. A person is guilty of attempt if he: a. Purposely engages in conduct that would constitute the crime with the attendant circumstances as he believes them to be, or b. 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 that, 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 2. More jury-oriented than the common law 3. Note: there is no statutory definition of attempt in federal law c. Common law the conduct must come dangerously close to completion i. MPC substantial step strongly corroborative of purpose 1. A subjective provision d. Elements of attempt i. Conduct (substantial) ii. Intent to commit the target crime

15 iii. Failure to complete the target crime e. Formula for attempt: i. Criminal purpose ii. Substantial step iii. A strong corroboration of criminal purpose b/w substantial step and criminal result f. To charge someone with attempt, you must allege: i. The actual substantial conduct AND ii. The intent to commit the target crime 1. Attempt is a LEGAL concept g. Mental states i. Lyerla case 1. You cannot have specific intent to negligently cause a death ii. Mental State Regarding Circumstance 1. In strict liability crimes, there is no mental state necessary for attempt a. There is strict liability attempt 2. The substantive offense controls the mens rea requirements h. Abandonment i. Common law typically does not accept this as a defense ii. Model Penal Code accepts it as a defense 1. When an actor s conduct would constitute attempt, it is an affirmative defense that he abandoned his crime under circumstances which manifest a COMPLETE and VOLUNTARY renunciation of his criminal purpose a. Renunciation is not voluntary if it is motivated by circumstances: i. That increase the probability of detection or apprehension, OR ii. That make more difficult the accomplishment of criminal purpose b. Renunciation is not complete if it is motivated by a decision: i. To postpone the criminal conduct until a more advantageous time OR ii. To transfer the criminal effort to another but similar objective or victim i. Impossibility i. Four types 1. Factual a. Occurs when extraneous Circumstances unknown to the actor or beyond the actor s control prevent consummation of the intended crime b. NOT A DEFENSE to attempt 2. Legality

16 a. A person commits or attempts to commit what s/he believes is a crime but in reality does not qualify as a crime under the law b. IS A DEFENSE to attempt 3. Mixed Questions of Law and Fact a. Errors by the defendant regarding some legal aspect of the situation that makes completion of the crime impossible i. This exists when the actor s goal is illegal, but commission of the offense is impossible due to a factual mistake regarding the legal status of some attendant circumstance that constitutes an element of the charged offense b. NOT A DEFENSE i. Pretends that the attendant circumstances were as the actor presumed them to be 4. Inherent Impossibility a. Cases in which the means chosen by the actor are manifestly unlikely to achieve the ends sought b. These cases rarely reach appellate opinion j. MPC approach to Impossibility i. Rejects the defense; s conduct should be measured according to the circumstances as he believes them to be k. Misapprehensions: Mistake vs. Impossibility i. Mistake of fact 1. No intent to complete the crime 2. thinks it is not against the law, but it is 3. Exonerates ii. Factual Impossibilities 1. Intent to complete a crime 2. thinks it is against the law, but it is not 3. Never exonerates iii. Mistake cases are the converse of Impossibility cases 1. Mistake (can arise in any kind of case) a. Pure law convictions b. Pure fact acquittals c. Mixed question of law and fact i. Common law convictions ii. MPC acquittals 2. Impossibility (often arises in attempt cases) a. Pure legal (Legality) acquittals b. Pure fact convictions c. Mixed question of law and fact common law acquittals, MPC convictions

17 IV. 3. Always determine whether we re looking at a mistake problem or an impossibility problem a. From the law s perspective, did it turn out worse than the actor intended? i. If so, then it s a mistake b. From the law s perspective, did it turn out better than the actor intended? i. If so, then it s an impossibility Solicitation a. Another anticipatory crime; as far back as the line can be drawn in criminal liability i. It is an independent offense; even if the solicitee says no, the solicitor has still committed a crime ii. Requires an effort by one person to persuade another person to commit a felony (modern view may include misdemeanors) iii. Successful solicitor qualifies as an accomplice b. Conduct i. There must be a clear and present danger in order to cross the line from free speech into criminal solicitation ii. Requires a specific audience c. Mental State i. Sometimes an element of solicitation (general intent) d. Renunciation i. Possible acquittals based upon renunciation, if complete and voluntary e. Innocent Agents i. The solicitee does not need to be aware of the criminal purpose of the solicitor or of the criminal nature of the conduct solicited in order to qualify the offense as solicitation V. Complicity a. Intro i. Also called accomplice liability or derivative liability ii. Those who assist or encourage another to commit a crime may be held liable for that crime, even though they did not themselves perform the act specified in the statute defining the crime iii. Accomplices assist the principal or the primary actor 1. At common law, four parties to a crime a. Accessory before the fact (aids in the crime beforehand) b. Principal in the first degree (the doer) c. Principal in the second degree (present, actively or constructively) d. Accessory after the fact (helps the actors avoid prosecution) b. Conduct

18 i. Mere presence, or even prior knowledge, does not necessarily make on an accomplice to a crime ii. Guilt by association is not a basis upon which accomplice liability can be premised iii. The prosecution must find some way that the person contributed to the crime in order to convict c. Omission i. Sometimes, omission coupled with legal duty constitutes complicity d. MPC Approach to Conduct for Complicity i. A person is legally accountable for the conduct of another when he is the accomplice of such other person in the commission of an offense ii. He is an accomplice if: 1. With the purpose of promoting or facilitating the offense, he: a. Solicits the other person to commit it, or b. Aids or agrees or attempts to aid such other person in planning or committing it, or c. Having a legal duty to prevent the commission of the offense, fails to make proper effort to do so, or d. His conduct is expressly declared by law to establish his complicity e. Mental States i. Required for accomplice liability ii. Intent or purpose, usually f. Liability for crimes of recklessness and negligence i. Liability can be imposed for these crimes in certain circumstances ii. One can be an accessory to reckless or negligent homicide g. MPC approach to mental states in complicity i. When causing a particular result is an element of the offense, an accomplice in the conduct causing such result is an accomplice in the commission of the offense if he acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense a. Flayhart case liability imposed because the defendants aided each other in the conduct which constituted the offense failing to provide food and medical care h. Limitations on Complicity a. Conviction of the principal i. An accomplice can still be charged whether or not the principal actor has been prosecuted, convicted, or acquitted b. Other crimes committed by the principal 1. Accomplice liability extends to all crimes committed in pursuance of the intended crime if reasonably foreseeable

19 VI. c. Innocent Instrumentality i. Innocent instrumentalities are blameless (think of the example of the mailman who unknowingly delivered anthrax to a senator) ii. The accomplice who used the instrument becomes the primary actor for purposes of prosecution d. Feigning accomplice or feigning principal i. To determine accomplice liability, 2 mental states required: 1. A mental state regarding the underlying crime 2. A mental state regarding the assistance e. Victims are never accomplices i. Abandonment a. Complicity can be abandoned if the actor 1. Wholly deprives the offense of its effectiveness OR 2. Gives timely warning to the law enforcement authorities or otherwise makes proper effort to prevent the commission of the offense b. Derivative nature of complicity i. One is not necessarily tied to the crimes of the principal j. When does product or service supply + knowledge = complicity? Factors: a. Normalcy of the sale, is an inflated price being charge, is expertise provided to the transaction, does the supplier have a stake in the enterprise, how much of the supplier s business is going to illegal activity, what is the seriousness of the crime? i. i.e., a stake in the enterprise b. Some states provide a lower offense facilitation i. Mere knowledge + product/service supply would be a crime Conspiracy a. Introduction i. Common law definition an agreement between two or more people to do something unlawful ii. Punishment may be imposed as an addition to, rather than substitute for, target offense iii. Vicarious liability extends to co-conspirators iv. Requirements 1. 2 intents a. Intent to agree b. Intent to commit the target offense 2. 2 aspects a. An inchoate offense b. Its group character v. Bilateral or Unilateral Agreements? 1. Depends upon the statute/jurisdiction 2. Washington v. Pacheco a. If a person agrees with another unilateral

20 b. If there is an agreement bilateral b. Overt act i. To obtain a conspiracy conviction, the prosecutor need only prove that the conspirators agreed to undertake a criminal scheme, or an overt step in pursuance of the conspiracy 1. Requires a lesser act than attempt statutes require 2. Virtually any act will satisfy this requirement c. Mental States i. Lauria case 1. When does product/service supply + knowledge = conspiracy? 2. Only when there is purpose to further the criminal act ii. Feola case 1. Federal officerness of statute was strict liability crime 2. Strict liability conspiracy crimes require no mens rea iii. General Note: When reading fact patterns, always determine if the actor you are asked to analyze is the principal or the accomplice d. Pinkerton Doctrine i. Does not apply in the MPC ii. One is liable for offenses that are in furtherance of the original agreement and are foreseeable; the person who agreed continues to be liable absent evidence that he has pulled out of the conspiracy iii. A way of convicting people for substantive offenses they did not commit e. Hearsay i. Admissible in a conspiracy case if the statements were made in furtherance of the conspiracy f. Limitations on Conspiracy i. There can only be one conspiracy count per scheme ii. Ex: If two people planned to rob, rape, and kill, there would be ONE count of conspiracy for the entire ordeal for each man g. Duration of Conspiracy i. Recio case there is no automatic termination to a conspiracy just because its object can no longer be effectuated h. Corrupt Motive Doctrine i. If conspirators, acting in good faith, lack a corrupt rationale for their acts, they are not guilty of conspiracy 1. Good faith recognized only if the criminal objective of the conspiracy is not inherently wrong 2. Only exonerates the CONSPIRACY charge, not the charge of the substantive offense i. Wharton s Rule i. Prevents prosecution for conspiracy when the crime is of a nature in which it necessarily requires 2 persons (e.g. dueling) j. Abandonment i. MPC withdraw from the conspiracy & attempt to thwart it

21 VII. ii. Withdrawal before the overt act completely absolves one of all liability for the conspiracy k. Difference b/w MPC and most jurisdictions i. In MPC, you cannot be charged with a count for both conspiracy and the target offense Justifications and Excuses Affirmative Defenses a. Justification i. Maintains that the act was RIGHT ii. Renders a violation of the law lawful and exempts one from criminal sanctions b. Excuse i. Concedes that the act was WRONG ii. Seeks to exempt the actor from responsibility for the unjustified act c. Affirmative defenses i. Do not negate an element of the crime ii. Defendant must demonstrate the existence of circumstances that triggered the exonerating defense iii. Types: 1. Self-defense (justification) 2. Defense of others (justification) 3. Defense of necessity (justification) 4. Duress and Insanity (excuse) iv. Self-Defense and Defense of others (justifications) 1. Goetz case a. Imposed an objective standard for whether or not someone reasonably believed that he/she was in danger 2. Approaches the law COULD adopt w/regard to selfdefense a. If the possibly believed he was in danger b. If the defendant actually was in danger c. If a reasonable person would have felt in danger 3. Defense of others a. Same standards as self-defense, but you must be right about the situation (who was the victim) v. Self-Defense and Domestic Violence 1. Norman case - Battered Woman s Syndrome 2. The right to kill in self-defense is based on the necessity, real or reasonably apparent, of killing an unlawful aggressor to save oneself from imminent death or great bodily harm at his hands. vi. Retreat 1. Applies only to when deciding to use deadly force 2. Not required in your own home or place of work a. Exception: if attacked by a cohabitant vii. Initial Aggressor rules

22 1. If the initial conflict is over, and a new conflict begins, the initial aggressor has a right to self defense 2. If the initial aggressor did not use deadly force, but the victim does, the initial aggressor has a right to self-defense viii. Model Penal Code on Self-Defense 1. Lacks a reasonableness requirement for purposeful or knowing killings 2. Still imposes liability for recklessness or negligence 3. Force not justifiable unless it is to prevent: a. Death, serious bodily injury, kidnapping, or sex ix. Necessity (Justification) 1. Defense raised when an actor engages in what would otherwise be a crime in order to avoid greater harm (justification) 2. The victim is blameless (which is why this isn t selfdefense) 3. Queen v. Dudley and Stephens a. Necessity is never a defense to the taking of an innocent life 4. MPC a. Called the choice of evils b. Harm averted must be greater than the harm committed i. This is an OBJECTIVE assessment; it has nothing to do with the actor s assessment c. Does not exclude the taking of innocent life 5. Civil Disobedience a. Necessity defense not available in cases of indirect civil disobedience b/c the threat is not imminent 6. Prison Escape a. Prisoners must report to the authorities once a position of safety has been reached x. Duress (Excuse) 1. Three elements: a. Immediate threat of death or serious bodily injury by another person b. A well-grounded fear that the threat will be carried out, AND c. No reasonable opportunity to escape 2. Model Penal Code a. Typically does allow taking of innocent life, even though common law does not b. Gap in MPC focuses only on duress situations brought about by another human being xi. Insanity and Mental Illness (Excuse) 1. Two separate issues:

23 a. Competency to stand trial (focuses on NOW) i. Must be determined before we look at responsibility ii. Can they help their lawyer, and do they understand the proceedings against them? b. Responsibility for the act (focuses on THEN) 2. How do we determine if someone is legally responsible? a. M Naghten Test 2 prongs i. Did the defendant know the nature and quality of his act? ii. Even if he did, did he know it was wrong? 1. Problem emphasizes the cognitive b. Irresistible Impulse rule supplement to M Naghten i. The defendant had such an irresistible impulse to commit the crime that he still would have done so even if a police officer were right next to him ii. Is not cognitive, but volitional c. Durham rule ( product rule) i. Was the defendant s conduct a product of a mental disease or defect? 1. But for the mental disease or defect, would defendant still have committed the crime? ii. This rule never really caught on d. MPC Rule dominant standard for insanity i. A person is not responsible for criminal conduct IF: 1. At the time of the conduct, 2. As a result of mental disease/defect 3. He lacks substantial capacity either a. To appreciate the criminality (wrongfulness) of his conduct, OR b. To conform his conduct to the requirements of the law ii. Mental disease or defect does not include an abnormality manifested only by repeated criminal or antisocial conduct 1. Antisocial personality disorder is not recognized as legal insanity 3. Alternative a. Guilty but mentally ill i. A new concept that offers a way to maneuver around the not guilty by way of insanity verdict

24 ii. Offers both punishment AND treatment for the offender