ERRATA SHEET FOR ROBINSON, CRIMINAL LAW: CASE STUDIES & CONTROVERSIES, THIRD EDITION (as of March 25, 2013)

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1 ERRATA SHEET FOR ROBINSON, CRIMINAL LAW: CASE STUDIES & CONTROVERSIES, THIRD EDITION (as of March 25, 2013) Page 186 ( 6) see additional Kansas statutes concerning departure from the state's sentencing guidelines (attached below) 217 ( 7) see additional Texas statutes relating to the procedures for determining the death penalty (attached below) ( 16) an over-zealous copyeditor added the numeral "8" to the section numbers for "Chapter Five." Their correct numbering is not "Section 384J" to "Section 384R" but simply "Section 34J" to "Section 34R" 953 ( 10 Appendix) a correctly formatted table is attached: Attempt Liability Requirements 976 ( 12 Appendix) a correctly formatted table is attached: Conspiracy Liability Requirements 992 ( 14 Appendix) a correctly formatted table is attached: Complicity Liability Requirements 997 ( 14 Appendix) a correctly formatted table is attached: Causing Crime by an Innocent Liability Requirements 1155 (MPC Appendix) the MPC reproduced in the Appendix shows the 2007 revision of 1.02(2) but inadvertently drops the other pieces of 1.02 i.e., subsections (1) and (3) which were not revised. A copy of the full text of the original 1.02 appears at page 84 of the text. 1

2 Kansas Statutes Departure sentencing; limitations (a) When a departure sentence is appropriate, the sentencing judge may depart from the sentencing guidelines as provided in this section. (b) When a sentencing judge departs in setting the duration of a presumptive term of imprisonment: (1) The judge shall consider and apply the enacted purposes and principles of sentencing guidelines to impose a sentence which is proportionate to the severity of the crime of conviction and the offender's criminal history; and (2) the presumptive term of imprisonment set in such departure shall not total more than double the maximum duration of the presumptive imprisonment term. (c) When a sentencing judge imposes a prison term as a dispositional departure: (1) The judge shall consider and apply the enacted purposes and principles of sentencing guidelines to impose a sentence which is proportionate to the severity of the crime of conviction; and (2) the term of imprisonment shall not exceed the maximum duration of the presumptive imprisonment term listed within the sentencing grid. Any sentence inconsistent with the provisions of this section shall constitute an additional departure and shall require substantial and compelling reasons independent of the reasons given for the dispositional departure....

3 TEXAS PENAL CODE (1998) Capital Felony (a) An individual adjudged guilty of a capital felony in a case in which the state seeks the death penalty shall be punished by imprisonment in the institutional division for life or by death. An individual adjudged guilty of a capital felony in a case in which the state does not seek the death penalty shall be punished by imprisonment in the institutional division for life. (b) In a capital felony trial in which the state seeks the death penalty, prospective jurors shall be informed that a sentence of life imprisonment or death is mandatory on conviction of a capital felony. In a capital felony trial in which the state does not seek the death penalty, prospective jurors shall be informed that the state is not seeking the death penalty and that a sentence of life imprisonment is mandatory on conviction of the capital felony. TEXAS CODE OF CRIMINAL PROCEDURE Art Procedure in capital case Sec. 1. If a defendant is found guilty in a capital felony case in which the state does not seek the death penalty, the judge shall sentence the defendant to life imprisonment. Sec. 2. (a) If a defendant is tried for a capital offense in which the state seeks the death penalty, on a finding that the defendant is guilty of a capital offense, the court shall conduct a separate sentencing proceeding to determine whether the defendant shall be sentenced to death or life imprisonment. The proceeding shall be conducted in the trial court and, except as provided by Article 44.29(c) of this code, before the trial jury as soon as practicable. In the proceeding, evidence may be presented by the state and the defendant or the defendant's counsel as to any matter that the court deems relevant to sentence, including evidence of the defendant's background or character or the circumstances of the offense that mitigates against the imposition of the death penalty. This subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or of the State of Texas. The state and the defendant or the defendant's counsel shall be permitted to present argument for or against sentence of death. The court, the attorney representing the state, the defendant, or the defendant's counsel may not inform a juror or a prospective juror of the effect of a failure of a jury to agree on issues submitted under Subsection (c) or (e) of this article. (b) On conclusion of the presentation of the evidence, the court shall submit the following issues to the jury: (1) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and (2) in cases in which the jury charge at the guilt or innocence stage permitted the jury to find the defendant guilty as a party under Sections 7.01 and 7.02, Penal Code, whether the defendant actually caused the death of the deceased or did not actually cause the death of the deceased but intended to kill the deceased or another or anticipated that a human life would be taken. (c) The state must prove each issue submitted under Subsection (b) of this

4 article beyond a reasonable doubt, and the jury shall return a special verdict of yes or no on each issue submitted under Subsection (b) of this Article. (d) The court shall charge the jury that: (1) in deliberating on the issues submitted under Subsection (b) of this article, it shall consider all evidence admitted at the guilt or innocence stage and the punishment stage, including evidence of the defendant's background or character or the circumstances of the offense that militates for or mitigates against the imposition of the death penalty; (2) it may not answer any issue submitted under Subsection (b) of this article yes unless it agrees unanimously and it may not answer any issue no unless 10 or more jurors agree; and (3) members of the jury need not agree on what particular evidence supports a negative answer to any issue submitted under Subsection (b) of this article. (e) The court shall instruct the jury that if the jury returns an affirmative finding to each issue submitted under Subsection (b) of this article, it shall answer the following issue: Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed. (f) The court shall charge the jury that in answering the issue submitted under Subsection (e) of this article, the jury: (1) shall answer the issue yes or no ; (2) may not answer the issue no unless it agrees unanimously and may not answer the issue yes unless 10 or more jurors agree; (3) need not agree on what particular evidence supports an affirmative finding on the issue; and (4) shall consider mitigating evidence to be evidence that a juror might regard as reducing the defendant's moral blameworthiness. (g) If the jury returns an affirmative finding on each issue submitted under Subsection (b) of this article and a negative finding on an issue submitted under Subsection (e) of this article, the court shall sentence the defendant to death. If the jury returns a negative finding on any issue submitted under Subsection (b) of this article or an affirmative finding on an issue submitted under Subsection (e) of this article or is unable to answer any issue submitted under Subsection (b) or (e) of this article, the court shall sentence the defendant to confinement in the institutional division of the Texas Department of Criminal Justice for life. (h) The judgment of conviction and sentence of death shall be subject to automatic review by the Court of Criminal Appeals.... Art Execution of convict Whenever the sentence of death is pronounced against a convict, the sentence shall be executed at any time after the hour of 6 p.m. on the day set for the execution, by intravenous injection of a substance or substances in a lethal quantity sufficient to cause death and until such convict is dead, such execution procedure to be determined and supervised by the Director of the institutional division of the Texas Department of Criminal Justice.

5 TABLE 11.1: SUMMARY OF REQUIREMENTS FOR ATTEMPT LIABILITY Objective Requirements CONDUCT conduct constituting substantive offense not required; instead offense requires: CL: proximity / res ipsa tests MPC: substantial-step test CIRCUMSTANCES CL: circumstance elements of substantive offense required (legal impossibility is a defense) MPC: circumstance elements of substantive offense not required (legal impossibility is not a defense) RESULT CL and MPC: result elements of substantive offense, if any, not required (nor is factual impossibility of it occurring a defense) Culpability Requirements CONDUCT culpability as to conduct constituting substantive offense: CL and MPC: purpose CIRCUMSTANCES CL: elevate to require purpose as to circumstances MPC: as required by substantive offense; do not elevate (per commentary) RESULT CL: elevate to require purpose as to result MPC: elevate to require purpose, but only to knowledge for completed conduct attempt Other (e.g. Utah): as required by substantive offense; do not elevate MPC = Model Penal Code CL = Common Law

6 TABLE: SUMMARY OF CONSPIRACY REQUIREMENTS The requirements for conspiracy liability for the defendant may be summarized as follows: The defendant must satisfy these requirements: Objective Requirements: Conduct constituting substantive offense: Not required, instead: CL & MPC actor must agree with another that one of them will engage in the conduct that would constitute the substantive offense Result elements of substantive offense: CL & MPC not required (nor is factual impossibility of it occurring a defense) Culpability Requirements Culpability as to conduct constituting substantive offense: CL & MPC 5.03(1) purpose of promoting or facilitating the offense Culpability as to result elements of substantive offense: CL elevate to purposeful MPC elevate to purposeful Other (e.g., Feola reasoning) as required by substantive offense; do not elevate Circumstance elements of substantive offense: CL required (legal impossibility is a defense) MPC not required (legal impossibility is not a defense) Culpability as to circumstance elements of substantive offense: CL elevate to purposeful MPC perhaps do not elevate, left to interpretation (per commentary) Other (e.g., Feola) as required by substantive offense; do not elevate A co-conspirator must satisfy these requirements: Objective Requirements: Culpability Requirements Agreement requirement: CL at least one other conspirator must actually agree (bilateral agreement: two or more persons agree to... ); MPC no conspirator need agree (unilateral agreement; defendant agrees... that one of them... ) Overt act requirement: CL & MPC 5.03(5) act in pursuance of conspiracy by any conspirator Intent to agree: CL Bilateral requires that coconspirator intend to agree back MPC Unilateral does not Unconvictable coconspirator defense: CL requires that coconspirator satisfy all elements of conspiracy and has not defense MPC 5.04(1) rejects defense MPC = Model Penal Code CL = Common Law

7 Notes on the Requirements for Complicity Liability The requirements of a defendant s liability for an offense as an accomplice may be summarized as follows: Defendant (Accomplice) Perpetrator (Principal) 1 Objective requirements Culpability requirements CL: assist (or encourage) MPC: aid or agree or attempt to aid As to Aiding Perpetrator's Conduct CL and MPC: purpose of promoting or facilitating the commission of the offense ( 2.06(3)(a)) As to Circumstances CL: elevate to purposeful* MPC: unclear; probably left to interpretation, as in conspiracy As to Result CL: elevate to purposeful* MPC: do not elevate ( 2.06(4)) CL: objective elements of object offense MPC: same ( on proof of commission of the offense, 2.06(7)) CL: culpability requirements of object offense MPC: none ( 2.06(7) rejects unconvictable perpetrator defense) MPC = Model Penal Code CL = Common Law * The common law's requirement that the actor "associates himself with venture, wishes it to succeed" (e.g., Stout) is undermined for additional offenses (beyond those of the base offense for which the defendant is an accomplice) where the jurisdiction follows the common law's "natural and probable consequence" rule. 1 Note that these are the requirements the principal must satisfy for the accomplice to be liable, not for the principal himself to be liable.

8 Notes on the Requirements for Liability for Causing Crime by an Innocent The requirements for a defendant s liability for causing crime by an innocent may be summarized as follows: Defendant (Accomplice) Perpetrator (Principal) 1 Objective requirements CL and MPC: cause an innocent or irresponsible person to engage in the conduct constituting the offense (MPC 2.06(2)(a)); cause is defined by the normal requirements of causation CL and MPC: objective elements of offense Culpability requirements Culpability as to causing person to perform conduct constituting object offense: CL and MPC: unspecified; recklessness read in by MPC 2.02(3)? Culpability as to elements of object offense: CL and MPC: as required by the substantive offense ( acting with the kind of culpability that is sufficient for the commission of the offense, MPC 2.06(2)(a)) MPC = Model Penal Code CL = Common Law CL and MPC: none (person performing offense conduct may be innocent or irresponsible, MPC 2.06(2)(a)) 1 Note that these are the requirements the principal must satisfy for the accomplice to be liable, not for the principal himself to be liable.

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