Cochran Spring 2016 CRIMINAL LAW OUTLINE
I.
Vocab
a. Automatism: The state of a person who, though capable of action, is not conscious
of what he is doing.
b. Actus Reus: The term actus reus means guilty act. The actus reus and the mens rea
must exist concurrently (meaning you commit the guilty act with the guilty mind.
c. Involuntary: Absence of a voluntary act. Ex: A pushes B into C. B has not
committed a voluntary act against C.
d. Mens Rea: Latin term for “guilty mind.” Mens rea refers to the mental element of
the offense that accompanies the actus reus.
e. Omission: Generally not a basis for criminal liability unless an exception applies
creating a duty.
Chapter 1 Summary
● Necessity defense
o Principle enforced in Dudley and Stephens that the criminal law
must enforce the moral duty to refrain from killing another, even
when necessary to save lives
● Deterrence
o Hard to demonstrate that it empirically works. In addition, with
specific deterrence, it may not be effective for future crimes.
There is general and specific.
● Restraint
o Incapacitation of wrongdoers achieved through confinement.
Discretion of sentencing and correction authorities, as well as the
dictates of the legislature, will influence the terms and conditions
of such confinements.
● Rehabilitation
o There are inherent difficulties in achieving these goals; this is
only used as a priority for some defendants and some crimes.
● Retribution
o Paying for a crime that committed by time to help repay society.
II.
Purposes of Criminal Law
a. Purpose: protect society from harms
i. Claim brought by the state to protect the public
ii. Prosecutor’s purpose: seek justice
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iii. Goal: forbid and prevent conduct that threatens substantial harm to indiv or
public interests
b. Why does society punish illegal behavior?
i. Deterrence
1. Specific: deters the individual
2. General: deters others
ii. Prevention of harm to individual/society
iii. Rehabilitation: returning criminal to society (following punishment) with
affirmative and constructive equipment for law abidingness
iv. Retribution: “eye for an eye”
v. Social Condemnation: criminal conviction brings with it “moral
condemnation of the community”
vi. Restraint: restrain by putting in prison and separate from society
vii. Economic Efficiency: “most efficient” method of allocating resources
1. i.e. fines and community service instead of jail time
viii. Rhetoric of Blame: rubric of blameworthiness
c. Regina v. Dudley and Stephens: “Cannibals”
i. F: Two men killed and ate their shipmate. They attempted to raise necessity
defense because they had been stranded w/out food.
ii. H: Court calls it murder because they intentionally took a life (Willful
murder). It was NOT necessity because necessity is a type of self-defense,
but the shipmate was not an imminent threat against the men.
iii. Purpose of punishment: General Deterrence
1. To preserve one’s life is a general duty but sometimes there is a duty
to sacrifice it. No absolute or unequal necessity to preserve one’s life
Necessity: the conduct is justified if
2. the actor reasonably believes the conduct is immediately necessary to
avoid imminent harm;
3. the desirability and urgency of avoiding the harm clearly outweigh,
according to ordinary standards of reasonableness, the harm sought
to be prevented by the law proscribing the conduct; and
4. A legislative purpose to exclude the justification claimed for the
conduct does not otherwise plainly appear.
d. Jury Instruction
i. Presumption of innocence enough of a defense🡪 defendant does not need to
defend himself
ii. Language in jury instruction comes directly from statute (Penal Code)
iii. Crime typically requires INTENT (mental) + an ACTION
iv. Frequently a prosecutor will add on a lesser charge
v. Always have to compare jury instructions to the statute🡪 statute is THE
LAW🡪 language may differ from state to state
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Chapter 2 Summary
Major Themes:
● Voluntary act- unless a D’s act was voluntary, there is no justification
for imposing punishment. In some cases, the “involuntary act” defense
may be successful when the evidence shows that the bodily movement
of the D was not the product of her will.
● Omission liability- imposes only. Limited legal duties that give rise to
criminal liability for an omission to act. The failure of the law to
impose liability based upon “moral” duties may be explained by the
inherent difficulties of defining the limitations of such duties.
●
Voluntary act requirement
A prerequisite for criminal liability. Unless it is an involuntary act such
as:
● Reflex or convulsion
● Bodily movement during unconsciousness or sleep
● Conduct during hypnosis or resulting from hypnotic suggestion.
● Acts that are not “a product of the effort or determination of the actor,
either
● Conscious or habitual.
● Unconsciousness Defense For cases a concussion or gunshot wound
caused symptoms of unconscious behavior that could be diagnosed by
expert witness & supported w/ sufficient evidence.
● Other involuntary act defenses Other types like epileptic seizure or
episode of somnambulism
● Status crime Cannot be a statute against a status, but an actual act “found
to be in state of intoxication in a public place”, was not a status crime
because it required the act of being in public.
● Omissions to act -even though criminal liability must be based on a
voluntary act, the term “act” is defined broadly enough to include an
“omission” to act. Liability may be based on an “omission to perform an
act of which [a person] is physically capable.
● Legal Duty to Act
● When a statute imposes a duty to care for another
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● When a person has a particular status relationship with another that
gives rise to a duty of care
● When a person has assumed a contractual duty to care for another
● When a person voluntarily assumed the care of another and then
secluded the other person in a way that prevented others from
rendering aid
●
Duty to rescue: some states have a statute that enacts a duty to provide
assistance at the scene of an emergency, some there is no duty.
III.
“Voluntary Act” Requirement
a. Components of Crime
i. Actus reus (the act)
ii. Mens rea (mental state)
iii. Causation
iv. Concurrence between the actus reus and the mens rea
v. Essential element of just punishment is requirement of a ‘voluntary act’ or
‘omission’ where appropriate duty to act exists
b. Martin v. State: “drunk in public”
i. F: Officers arrested intoxicated Martin IN his home & took him into the
street where he was loud and used profane language. Martin was then
convicted of public intoxication and boisterous or indecent conduct.
ii. R: The act must be voluntary.
iii. H: Here, the Defendant did not voluntarily commit the crime because he did
not voluntarily walk into the street or into public, which the crime requires.
iv. Mental intent to get drunk, but what about to go into public? 🡪 police took
him out of his home
v. Statute doesn’t actually say “voluntarily”🡪 court reading into the statute
vi. Requirement of Voluntary Act; Omission as Basis of Liability; Possession as
an Act
1. A person is not guilty of an offense unless his liability is based on
conduct which includes a voluntary act or the omission to perform an
act of which he is physically capable.
vii. Requirement of voluntary act or omission
1. A person commits an offense only if he voluntarily engages in
conduct, including an act, an omission, or possession.
viii. Vocabulary: TPC § 6.01(b)
1. Act: means a bodily movement, whether voluntary or involuntary,
and includes speech.
2. Conduct: means and act or omission and its accompanying mental
state.
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ix. Possession as a Voluntary Act
1. Possession is an act, within the meaning of this Section, if the
possessor knowingly procured or received the thing possessed or was
aware of his control thereof for a sufficient period to have been able to
terminate his possession.
2. Possession is a voluntary act if the possessor knowingly obtains or
receives the thing possessed or is aware of his control of the thing for a
sufficient time to terminate his control.
3. 1.07(a)(39): “Possession” means actual care, custody, control, or
management.
c. Fulcher v. State: “blacked out abuse in prison”
i. F: ∆ was arrested for PI and disturbing the peace. ∆ then kicked/stomped
head of his cellmate. ∆ raises defense of unconsciousness as a result of
concussion from the fight outside the bar—claims he could not have engaged
in voluntary acts when he was not conscious.
ii. R: Automatism is the state of a person who is capable of action but is not
conscious of what he is doing. The actions a person performed in an
automatistic state are without exercise of will or consciousness, thus they
are involuntary. Automatism is an affirmative defense.
iii. R: Automatism and insanity are different defenses. Automatism is a
complete defense, but if found not guilty by reason of insanity, the ∆ will
usually be committed to a mental institution. (we will talk about this more
later)
1. Automatism: physical disorder
2. Insanity: mental disorder
iv. H: Automatism is a recognized affirmative defense but the court didn’t find
it applicable in this case.
v. Court reluctant to carve out a judge made decision if other states don’t use
automatism
vi. Some things do take away the voluntary nature of acts
1. Amnesia
2. Reflex shock reaction
vii. Some are traumatic enough to constitute a jury instruction
viii. Affirmative Defenses
1. The burden of proof rests upon the Defense. (Preponderance of the
Evidence)
2. In a criminal case the prosecution has to prove the elements BARD.
3. W/ an Aff. D: D says yes, the acts took place but THIS (the Aff.
Defense) is WHY it happened.
4. Legislature establishes affirmative defenses.
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5. Jury is instructed that if the D proves their Aff. Defense they are to
find the D not guilty.
6. Normal Defensive Theory: Burden isn’t shifted, but the Jury is
instructed as to the defensive theory. (i.e. you are instructed that acts
taken in an automatistic state are not voluntary, and to be criminally
liable, a voluntary act must be committed.)
7. Robinson v. State of California (addiction is criminal?)
a. F: Robinson was charged with being an addict (had scars and
scab marks) but was not under the influence when he was
arrested. The charge is not the act of taking the drugs or
possessing the drugs; he is being charged with being an addict.
b. R: You can’t criminalize status! Being of a certain status is not a
voluntary act. State constitutionally needs to have some
voluntary act or omission before they can make a criminal
liability.
i. The punishment of status is a violation of the
constitutional right against cruel and unusual
th
punishment (14 Amendment).
ii. Contrast this with “performance” crimes
8. Powell v. Texas (Cops made me Drunk in Public)
a. F: ∆, a chronic alcoholic, was convicted of Public Intoxication.
b. H: This case does not fall within Robinson’s holding because
here ∆ was convicted of being drunk in public, not for being a
chronic alcoholic.
9. Lambert v. People
a. F: ∆ was convicted under a statute that required any convicted
person to register with the police within five days of arriving in
the city.
b. H: Actual knowledge of the duty to register or proof of the
probability of such knowledge and subsequent failure to
comply are necessary before a conviction under the ordinance
can stand.
c. Note: this is different from requiring sex offenders to register
because they are required to register as part of their
punishment and, therefore, have knowledge of their duty.
IV.
Omissions
a. Sometimes failure to act can be enough to establish a “voluntary act”
b. “A person is not guilty of an offense unless his liability is based on . . . The
omission to perform an act of which he is physically capable.”
i. Failure to act must have been committed with the requisite mens rea
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c. Texas Penal Code
i. 6.01:
1. A person commits an offense only if he voluntarily engages in
conduct, including an act, an omission, or possession.
2. A person who omits to perform an act does not commit an offense
unless a law as defined by Section 1.07 provides that the omission is
an offense or otherwise provides that he has a duty to perform the act.
d. Jones v. United States (baby in cage)
i. F: A baby was left in the care of ∆ and died of malnutrition. ∆ was convicted
of involuntary manslaughter for failure to provide care for the baby.
ii. R: In some situations, the failure to act (i.e. an omission) may constitute
breach of a legal duty.
iii. R: To be held criminally responsible for an omission to perform a duty, the
duty neglected must be a legal duty, and not a “mere moral obligation”
iv. H: The finding of a legal duty was a crucial element of the crime. The failure
to instruct the jury concerning the duty was an error.
v. There are at least 4 situations that make a legal duty:
1.
statute imposes duty of care
2. certain status relationships
3. contractual duty of care
4. Voluntarily assumes care of another and so secluded the helpless
person as to prevent others from rendering aid.
e. State v. Williquette (Mother didn’t stop abusive father)
i. F: Father beat children. Mother is charged with child abuse based on her
failure to take action to prevent the abuse.
1. Mother claims she can’t be charged because the statute required an
act not an omission.
2. The act by which she could be prosecuted was knowingly exposing her
children to abuse and continuing to leave the children in the father’s
exclusive care.
3. She was wrong that an omission could not give rise to liability because
she had a duty to act based on her relationship as mother of the
children
ii. R: A person can be held criminally liable for conduct which is a substantial
factor in producing consequences, including an omission.
iii. R: Where a duty based on a personal relationship exists, a knowing breach of
that duty in the form of an act or an omission subjects that person to
criminal liability.
f. If a person can have control over their own actions, a duty to care is usually absent
i. Ex: Parent not getting medical care for their young child vs. wife not getting
medical care for husband refusing to take his insulin
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Chapter 3 Summary
Major Themes
● Mens rea generally required-most serious criminal offenses require
proof of specific criminal intention, reflecting the view that none should
be found guilty of a serious criminal offense unless he or she was shown to
be blameworthy because he or she actually intended to commit that
crime.
● Legislature can enact strict liability and often do with minor, public
welfare offenses
● Mistakes and mens rea- could say she had a mistaken belief about
circumstances
● Remember: even with faulty jury instructions, as long as the jury could
understand the nuances, could hold it has harmless. When an appellate
court gets to review, it’s not if they agree with the jury, but rather a rational
trier of fact could come to same result.
Executive Summary
● Proof of specific mens rea- the prosecution must prove the specific
means rea elements of crimes beyond a reasonable doubt.
● Model penal code: established four levels of intentionality to be used as
standard mens rea elements: purpose; knowledge; recklessness; and
negligence.
● Mens rea application: which element to use is based on the intention of
legislature.
● Strict liability: if it doesn’t have an element in it, doesn’t mean it is strict
liability. A felonious criminal offense with common law roots is
presumed to have an implicit mens rea element, unless clear legislative
intent to the contrary.
● Intoxication defense: intoxication or drugged condition is a good defense
inmost jurisdiction if crime is a specific intent crime only. Not a good
defense if the crime is a general intent or strict liability crime. It must be
proved to have been so profound that the accused did not possess the
required mens rea.
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● Mistake of fact: where there is an honest but mistaken belief that factual
circumstances existed that would have made his or her actions not
criminal due to the absence of the required mens rea. Never a defense to
strict liability crimes.
● Mistake of law: is not a good defense unless officially told the conduct was
not criminal or where the criminal statute specifically makes knowledge
of illegality an element of defense.
V.
Mens Rea
a. Regina v. Faulkner (Why is all the rum gone?)
i. F: ∆ charged w/intentionally burning a ship. ∆ was stealing rum and lit a
match to see while trying to bore the hole in the cask, which ignited the rum
and burned the ship. It was conceded that ∆ had no actual of intention of
burning the vessel.
ii. R: To be held criminally liable for the violation of a statute, it must be
proven that your mental state meets the required mental state proscribed by
the statute.
iii. Here: This statute was about maliciously and purposefully setting fire to the
ship.
1. This was not his mental state with regard to the burning of the ship.
2. He may have acted recklessly, but those were not the provisions of the
statute under which he was being charged.
b. State v. Jackowski (protestor stopping traffic)
i. F: ∆ was protesting the Iraq war by blocking an intersection, she was arrested
and charged with disorderly conduct “with intent to cause public
inconvenience and…” ∆ is complaining about jury instructions, which read
as follows:
1. “This intent may also be shown if the State proves BARD that ∆ was
practically certain that another person or persons . . . would be
bothered.”
ii. R: The law makes a distinction between intentional and knowing acts.
iii. H: The trial court’s instruction prevented the jury from considering whether
causing public annoyance or inconvenience was ∆’s conscious object,
effectively removing the element of intent from the crime.
1. Reversed
c. State v. Ducker (kids in hot car while mom w/boyfriend)
i. F: ∆ left her kids strapped in car seats overnight while she went to motel with
boyfriend. She left middle of the day the next day and showed up at the
hospital with her dead children.
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1. Charged with knowingly treating the children in such a way that was
reasonably certain to cause the resulting injury to her children
a. Factors involved in knowingly: circumstances, conduct, and
result of conduct
2. Alleged error here was that the knowing requirement was applied to
the charge in a general way
ii. R: Culpability needs to be applied to each element to prevent lessening the
State’s burden.
1. This was an error, but not reversible
2. If they go back and look at the record, a rational juror could have
found that she knew, based on this evidence, all of the elements.
3. Focus that appellate court should have is “could a reasonable jury so
find on these facts despite the error in the charge”
d. Flores-Figueroa v. United States (real fake I.D.)
i. F: ∆ (illegal alien) charged with using an ID to get a job that had ID numbers
belonging to someone else. Fed. Statute imposes 2 years automatically
added to sentence if someone knowingly uses ID numbers of another person
– that is identity theft.
1. ∆ claims he didn’t KNOW the numbers belonged to someone else – he
was just using a fake ID he obtained. State contends that the knowing
mental state applied to the part about using a fake ID, not knowing
that the numbers belonged to someone else. (All we have to show is
that he is knowingly using and possessing it.)
ii. R: Grammar and context matter with statutory interpretation. There are
arguments to be made, but the bottom line will be that the Legislature can
draft a more specific statute if it doesn’t like the Court’s analysis. The court
will be concerned with how it is CURRENTLY written because what is in the
books at the time ∆ is charged and is the extent of notice provided to the
general public.
iii. H: Knowingly applies to EVERY element of this statute.
e. Actus Reus (an act) + Mens Rea (criminal mind)
i. An offense may contain one or more of these conduct elements (acts) which,
alone or in combination with the others, form the overall behavior which the
Legislature has intended to criminalize, and it is those essential conduct
elements to which culpable mental states must apply.
ii. TPC § 6.02 Requirement of Culpability
1. Except as provided in Subsection (b), a person does not commit an
offense unless he intentionally, knowingly, recklessly, or with
criminal negligence engages in conduct as the definition of the
offense requires.
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2. If the definition of an offense does not prescribe a culpable mental
state, a culpable mental state is nonetheless required unless the
definition plainly dispenses with any mental element.
3. If the definition of an offense does not prescribe a culpable mental
state, but one is nevertheless required under Subsection (b), intent,
knowledge, or recklessness suffices to establish criminal
responsibility.
4. Culpable mental states are classified according to relative degrees,
from highest to lowest, as follows:
a. Intentional
b. knowing
c. reckless
d. criminal negligence
5. Proof of a higher degree of culpability than that charges constitutes
proof of the culpability charged.
iii. How to use this
1. When analyzing a set of facts, you will be looking for crimes the actors
could be charged with.
2. You will need to evaluate the mental state required by the statute to
determine whether the actor could be guilty of a specific crime.
a. Ex: TPC 22.01 Assault: A person commits an offense if the
person:
i. Intentionally, knowingly, or recklessly causes bodily
injury to another.
3. In some cases, analyzing the mental state will tell you for which
crime the actor could be responsible.
st
nd
a. Ex: 1 degree murder, 2
degree murder, manslaughter,
negligent homicide, intoxication manslaughter… which one
depends on the mental state of the actor.
VI.
Strict Liability
a. Staples v. United States (firearm registration)
i. F: ∆ was indicted for unlawful possession of an unregistered machine gun in
violation of federal law. ∆ argues that he didn’t know of the automatic firing
capability and shouldn’t be criminally liable.
1. the Court focused on legislative intent
2. Government contends this is a strict liability crime.
ii. R: The definition of the elements of a criminal offense is entrusted solely to
the legislature.
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iii. R: Determining the mental state required for commission of an offense
requires construction of the statute and inference of the intent of the
legislature. The starting point is the language of the statute.
iv. R: Silence of a mens rea requirement does not, by itself, dispense with a
mens rea element.
v. R: The existence of a mens rea is the rule, rather than the exception.
1. BUT in construing public welfare or regulatory offenses, courts infer
that silence as to a mens rea requirement means that the legislature
did not intend to require proof of mens rea.
vi. R: If the offense deals with a “dangerous item” then courts are more likely to
find strict liability.
vii. Here: In the US there is a long tradition of widespread lawful gun ownership
by private individuals. So, unlike grenades, guns are not “deleterious
devices or products or obnoxious waste materials” that put their owners on
notice that they stand “in responsible relation to a public danger.”
viii. R: Strict liability crimes usually only have small penalties.
ix. H: Because dispensing with mens rea would require ∆ to have knowledge
only of traditionally lawful conduct, the offense is a felony with up to 10
years imprisonment, and our law favors requiring mens rea, the
government should have been required to prove that ∆ knew of the features
that brought his gun within the scope of the statute.
b. TPC 6.02(b)
i. If the definition of an offense does not prescribe a culpable mental state, a
culpable mental state is nonetheless required unless the definition plainly
dispenses with any mental element.
c. MPC 2.05(1)
i. The requirements of culpability prescribed by Sections 2.01 and 2.02 do not
apply to:
1. offenses that constitute violations, unless the requirement involved is
included in the definition of the offense or the Court determines that
its application is consistent with effective enforcement of the law
defining the offense; or
2. Offenses defined by statutes other than the Code, insofar as a
legislative purpose to impose absolute liability for such offenses or
with respect to any material element thereof plainly appears.
ii. 2.05(2) Notwithstanding any other provision of existing law and unless a
subsequent statute otherwise provides:
1. when absolute liability is imposed with respect to any material
element of an offense defined by a statute other than the Code and a
conviction is based upon such liability, the offense constitutes a
violation; and
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2. although absolute liability is imposed by law with respect to one or
more of the material elements of an offense defined by a statute other
than the Code, the culpable commission of the offense may be
charged and proved, in which event negligence with respect to such
elements constitutes sufficient culpability and the classification of
the offense and the sentence that may be imposed therefor upon
conviction are determined by Section 1.04 and Article 6 of the code
d. Strict Liability Crimes
i. Crimes for which no mental state is required
ii. Examples
1. Parking violations
2. Traffic violations
3. Statutory rape
iii. Just b/c statute is silent on level of culpability, does not necessarily mean
the standard is strict liability
e. How to analyze statutes without mental state
i. Look at plain language of statute
1. Remember that requiring mens rea is the rule, and strict liability is
the exception.
ii. Is it a public welfare or regulatory offense?
1. Is it malum in se or malum prohibitum?
iii. What is the penalty?
1. Class C misdemeanor v. Felony
2. Small fine v. penitentiary
VII.
Intoxication
a. Common Law
i. Can negative mens rea for a “specific intent” crime
ii. Does NOT negative the mens rea for “general intent” crime
1. General Intent : do the act (statute does not reference intent)
2. Specific Intent: cause the result (stat ref to intent)
a. EX: A person commits burglary if, without the consent of the
owner, the person enters a habitation or building not then open
to the public, with the intent to commit a felony, theft, or an
assault.”
i. This has both general intent and specific intent.
ii. General Intent Elements – voluntary intoxication not a
defense.
iii. Specific Intent Elements – Under CL it could come in to
negate specific intent.
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b. In juris where vol. intox. Def exists, have to demo that Δ was so intoxicated that not
capable of possessing the specific intent at issue
c. People v. Atkins (drunken arson)
i. F: Man charged with arson said he didn’t mean any harm and it was an
accident that happened while he was wasted. He wanted to use his voluntary
intoxication as a defense to arson.
ii. Statute:
1. set fire to;
2. burn; or
3. cause to be burned any structure, forest land, or property.
iii. H: “The statute does not require an additional specific intent to burn a
‘structure, forest land, or property,’ but rather requires only an intent to do
the act that causes the harm.”
d. MPC 2.08 Intoxication
i. Voluntary Intoxication is not a defense UNLESS it negatives an element of
the offense
ii. Note: this will NOT work for RECKLESSNESS
e. TPC 8.04 Intoxication
i. Voluntary intoxication is NOT a defense
ii. CAN introduce to mitigate penalty
1. Temporary insanity
f. Involuntary Intoxication
i. Always a defense
1. No longer a volitional act
ii. Typically considered a viable and complete defense.
iii. Examples:
1. Tricked into taking
2. Unexpected intoxication resulting from ingestion of a medically
prescribed drug
g. Tennessee v. Hatcher (drunk, high, shot a place up)
i. F: ∆ and his brother got drunk, smoked some weed, went over to another
person’s house and opened fire. ∆ complains that the court didn’t instruct
the jury regarding the possible negation of the mental state due to the
evidence of voluntary intoxication.
ii. R: Under the MPC and the law in some jurisdictions, voluntary intoxication
may negate the requisite intent for the crime. The Judge must find evidence
of such impairment and determine if ∆ is entitled to voluntary intoxication
instructions. Look to Δ’s mental capacity
iii. Note: If these facts had arisen in Texas, it wouldn’t have mattered. There
would be no argument for an instruction because it is not a defense. You
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could raise it during a sentencing hearing or during the punishment phase of
the trial for mitigation.
VIII. Mistake of Fact
a. Illustration:
i. Hunter Bill intentionally fires his gun. He was hunting for birds.
ii. Hunter Bill accidentally shot a man dressed up as a BIRD that he THOUGHT
was a bird.
iii. Hunter Bill is charged with homicide.
iv. Hunter Bill will raise the defense of Mistake of Fact.
v. He intended the act of shooting the gun.
vi. His act resulted in the death of another person.
vii. Bill claims: “I thought I was shooting a bird!”
viii. Was it a reasonable mistake?
1. Depends on facts
b. TPC 8.02 Mistake of Fact
i. It is a defense to prosecution that the actor through mistake formed a
reasonable belief about a matter of fact if his mistaken belief negated to
kind of culpability required for commission of the offense.
c. Mistake of Fact is inapplicable to strict liability offenses b/c no mens rea is req
d. Hopson v. Texas (preventing burglary🡪 protecting TV)
i. F: ∆ caught w/ TV in hands by officer, claimed she was HELPING the
owners (who claimed they didn’t know her), but is charged with burglary.
The trial court didn’t provide a specific instruction regarding the affirmative
defense of Mistake of Fact under 8.02.
ii. R: Texas recognizes a mistake of fact defense, which relates to the
requirement of mens rea, under 8.02.
iii. R: You have to look at the elements of the charge. You may not need a
specific instruction on Mistake of Fact because the elements required may
cover the possible affirmative defense.
1. Here, the jury had to find that she entered WITH INTENT to commit
theft – so that covers her mistake, if they believe her, then the state
has not proven that element and she is acquitted.
e. Iowa v. Freeman (I thought this Tylenol was Coke!)
i. F: ∆ was convicted of delivering a simulated controlled substance. Asserts
mistake of fact defense because he thought he was delivering cocaine rather
than acetaminophen. (“I was not trying to simulate a controlled substance, I
thought I was selling a controlled substance!”)
ii. R: Mistake of Fact is a defense to a crime
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iii. R: Mistake of Fact is a defense to a crime of scienter or criminal intent only
where the mistake precludes the existence of the mental state necessary to
commit the crime.
iv. H: The scienter required to hold ∆ criminally responsible for committing the
overt acts of the charged offense is present regardless of the mistake.
v. Still had guilty state of mind regardless of whether what he sold was
mistaken as something else
f. North Carolina v. Breathette (Lesbehonest)
i. F: ∆ is charged with indecent liberties with a minor (statutory rape). ∆ claims
that that she didn’t know the girl was 13 because she made representations to
her that she was 18.
ii. H: There is no requirement in the statute that ∆ know complainant's age.
1. “Willfully” only describes the conduct.
iii. Mistake of Fact – Age
1. Generally hold it is risk person is taking
2. Most crimes against minors fall on strict liability so no mist of fact
def avail
3. Exceptions turn on text of statute
IX.
Mistake of Law
a. TPC 8.03 Mistake of Law
i. It is no defense to prosecution that the actor was ignorant of the provisions of
any law after the law has taken effect.
ii. It is an affirmative defense to prosecution that the actor reasonably believed
the conduct charged did not constitute a crime and that he acted in
reasonable reliance upon:
1. An official statement of the law contained in a written order or grant
of permission by an administrative agency charged by law with
responsibility for interpreting the law in question; or
2. A written interpretation of the law contained in an opinion of the court
of record or made by a public official charged by law with
responsibility for interpreting the law in question.
iii. Although an actor’s mistake of law may constitute a defense to the offense
charged, he may nevertheless be convicted of a lesser included offense of
which he would be guilty if the law were as he believed.
b. U.S. v. Scarmazzo (medical marijuana dispensary)
i. F: ∆ operating a shop in California that was OK under State law but not under
Federal law.
ii. Motions in Limine were filed to prevent discussion of ∆’s good faith belief
that what ∆ was doing was permissible under state law.
iii. R: Ignorance of the law is NO defense. (General Rule)
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1. Citizens are subject to criminal laws whether or not they know the
laws exists.
a. Why? We don’t immunize stupid people! We expect people to
know the law. Creates an incentive for people to learn and
understand the law, or else stay on the safe side of things.
2. Advice of Attorney: Not a defense that you relied on your attorney’s
advice!
c. Hawaii v. DeCastro (the operator told me I could drive away)
i. F: ∆ was convicted of Resisting an Order to Stop a Motor Vehicle. ∆ pulled
over after he saw an officer driving erratically. The officer approached ∆. ∆
called 911 and said he was afraid of the officer. The 911 operator gave him
permission to leave the scene.
ii. R: Although ignorance of the law is not a defense, an exception exists where
∆ relies on an official government statement/interpretation of the law when
taking action.
iii. Here: 911 operators are not law enforcement and do not have the authority to
permit a driver to ignore the police officers order on the scene.
1. Problem is that it seems to most lay people that they would have the
authority; some 911 operators are police officers.
d. Kipp v. Delaware (registering deadly weapons)
i. F: ∆ was convicted of being a “person prohibited” in possession of deadly
weapons. Kipp argues that he didn’t know he was a “person prohibited”
because that box was marked N/A on his plea agreement, which was signed
by the prosecutor and the judge.
ii. R: A mistake of law defense is appropriately recognized where ∆
demonstrates that he has been misled by information received by the state.
iii. Here, the State agreed on appeal, Court accepted that. The State agrees there
is a valid defense because a citizen relied on a government statement to his
detriment.
iv. FORM = Official Document, reviewed by and signed off by the State and the
Court.
Chapter 4 Summary
Executive Summary
● Proof of causation: to convict D of a “result” crime, must show D acted with
necessary mens rea, and committed any required acts or acted with any
necessary attendant circumstances, but also that D caused the required
result.
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● Year and a day rule: under CL, cannot be “cause” of homicide unless victim
died within a year and one day of the D act. Could be held guilty for other
crimes if it is outside of year and day, like assault.
● MPC and Causation: “it is an antecedent but for which the result in question
would not have occurred” or “the relationship between the conduct and
results satisfied any additional casual requirements imposed by the Code or
by the law defining the offense.”
o Purposely or knowingly: “the element is not established if the actual
result is not within the purpose or the contemplation of the actor.”
o Recklessly or negligently: “the element is not established if the actual
result is not within the risk of which the actor is aware or, in the case of
negligence.”
o “The element is not established unless the actual result is a probable
consequence of the actor’s conduct.”
● Actual cause or legal cause: even though D may be the actual cause of the
result, courts also require proof that the D was the legal cause of death.
● Intervening causes: an independent intervening cause breaks the chain of
causation unless it was foreseeable. A dependent intervening cause does not
break the chain of causation unless it is regarded as abnormal.
o
MPC 2.03(2)(b) the test for whether the result is “too remote or
accidental in its occurrence to have a (just) bearing on the actor’s liability or
on the gravity of his offense.”
X.
Causation
a. Some crimes only require actus reus + mens rea
i. BUT “Result” Crimes require mens rea + actus reus + causation
b. Criminal Law v. Tort Law
i. Tort law seeks to identify the most suitable party on whom to place financial
responsibility for negligently or innocently causing harm.
ii. Criminal Law seeks to determine whether and to what extent a wrongdoer,
typically an intentional one, ought to be condemned by the community and
have his liberty restricted.
iii. Because of the higher stakes in criminal law, and its especially strong
commitment to personal, rather than vicarious, responsibility, a stricter
test, requiring a closer connection between ∆’s conduct and the resulting
harm is applied.
c. Types of Causation
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i. Actual/Factual Cause: But for ∆’s voluntary act(s), would the social harm
have occurred when it did?
1. Remember that the sole purpose of the but-for test of causation is to
identify candidates for responsibility for an event.
ii. Proximate/Legal Cause: Was the injury the natural, direct, and
uninterrupted consequence of the act?
1. This is where we decide if ∆ deserves to be criminally punished.
d. Year and Day Rule: Δ cannot be the “cause” of homicide unless victim dies w/in a
year and one day following the Δ’s acts
e. Stephenson v. State (sexual assault victim commits suicide)
i. F: ∆ kidnapped the victim and chewed at her body. Victim attempted to
escape multiple times. Victim went to the store with ∆’s agent where she
purchased poison and a hat. She then committed suicide by ingesting the
poison. ∆ claims he can’t be guilty of homicide because the victim’s act
broke the chain of causation.
ii. ∆ is claiming he has been over-charged on the homicide charge – her death,
through her acts of suicide, broke the chain of causation because she
voluntarily went to the hat shop, returned to the hotel room and ingested the
poison.
iii. R: “The general rule, both of law and reason, is, that whenever a man
contributes to a particular result, brought about, either by sole volition of
another, or by such volition added to his own, he is to be held responsible for
the result, the same as if his own unaided hand had produced it. The
contribution, however, must be of such magnitude and so near the result
that sustaining to it the relation of cause and effect, the law takes it within its
cognizance.”
iv. H: Court concludes the jury could have found the ∆ guilty based on these
facts.
f. MPC 2.03
i. Conduct is the cause of a result when:
1. it is an antecedent but for which the result in question would not have
occurred; and
2. the relationship between the conduct and result satisfies any
additional causal requirements imposed by the Code or by the law
defining the offense.
ii. When purposely or knowingly causing a particular result is an element of an
offense, the element is not established if the actual result is not within the
purpose or the contemplation of the actor unless:
1. the actual result differs from that designed or contemplated, as the
case may be, only in the respect that a different person or different
property is injured or affected or that the injury or harm designed or
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contemplated would have been more serious or more extensive than
that caused; or
2. the actual result involves the same kind of injury or harm as that
designed or contemplated and is not too remote or accidental in its
occurrence to have a [just] bearing on the actor's liability or on the
gravity of his offense.
iii. When recklessly or negligently causing a particular result is an element of
an offense, the element is not established if the actual result is not within
the risk of which the actor is aware or, in the case of negligence, of which he
should be aware unless:
1. the actual result differs from the probable result only in the respect
that a different person or different property is injured or affected or
that the probable injury or harm would have been more serious or
more extensive than that caused; or
2. the actual result involves the same kind of injury or harm as the
probable result and is not too remote or accidental in its occurrence to
have a [just] bearing on the actor's liability or on the gravity of his
offense.
iv. When causing a particular result is a material element of an offense for
which absolute liability is imposed by law, the element is not established
unless the actual result is a probable consequence of the actor's conduct.
g. TPC 6.04 Conduct and Results
i. A person is criminally responsible if the result would not have occurred but
for his conduct, operating either alone or concurrently with another cause,
unless the concurrent cause was clearly sufficient to produce the result and
the conduct of the actor clearly insufficient.
ii. A person is nevertheless criminally responsible for causing a result if the
only difference between what actually occurred and what he desired,
contemplated, or risked is that:
1. A different offense was committed
2. A different person or property was injured, harmed, or otherwise
affected.
h. Proximate Cause & Statutory Language
i. “… unless the concurrent cause was clearly sufficient to produce the result
and the conduct of the actor clearly insufficient.”
ii. (The Texas Statute (TPC 6.04) does not use the term Proximate Cause – it is
appropriate for our class to argue in terms of the statute)
iii. Proximate Cause: It is not WRONG to use the term proximate cause. If you
want to use PC, you would be arguing a but-for cause, and for policy matters,
a direct enough PC to hold ∆ criminally liable.
iv. The term “Proximate Cause” is NOT found in the Texas Statute!
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v.
You want to focus on applying the statute to the facts – steer clear of using
tort terms to describe what happened or to hold someone accountable –
compare their actions to the statutory language.
i.
Example: Arguing with Language of 6.04 & PC
i. I: Can ∆ be held criminally liable for V’s death?
ii. R: Generally, to be held criminally liable in Texas, ∆’s conduct must be the
but-for cause of the result operating alone or concurrently with another
cause. Under TPC 6.04 a concurrent cause must be clearly sufficient or ∆’s
action clearly insufficient to alleviate ∆’s criminal liability. OR
iii. Generally, to be held criminally liable, ∆’s conduct must be a but-for cause
as well as a direct-enough proximate cause to justify criminal
responsibility. With regards to an intervening act, ∆ is relieved of liability
only if the intervening act breaks the chain of causation such that ∆’s original
conduct is no longer a direct-enough cause of the V’s injury.
j.
Intervening Causes
i. Dependent Intervening Cause: an act that occurs in reaction or response to
∆’s prior wrongful act.
1. Generally does NOT relieve initial wrongdoer of criminal
responsibility, unless the response was unforeseeable and highly
abnormal.
ii. Independent Intervening Cause: a force that does not occur in response to
the initial wrongdoer’s conduct. The only relationship between ∆’s conduct
and the intervening cause is that ∆ placed V in a situation where the
intervening cause could independently act upon him.
1. Generally does relieve the initial wrongdoer of criminal
responsibility, unless the intervention was foreseeable.
k. Causation and Participation
i. Ex. Russian Roulette: Δ’s ‘caused’ death; participated in game and could be
found a cause and not a mere condition of death. → mutual
encouragement/joint enterprise
l. People v. Acosta (helicopter crash)
i. F: ∆ led cops on a high speed chase. During the pursuit two helicopters
crashed into each other, killing three people. There was evidence that one of
the helicopter operators violated FAA regulations.
ii. ∆ claims that he was not the proximate cause because a collision between
airborne helicopters was not foreseeable.
iii. ∆ also claims that the pilot’s actions were superseding causes.
iv. 1. Was ∆’s conduct the actual cause of the harm? (but-for his actions would it
have occurred as it did?)
1. No 🡪 Not Proximate Cause, NO LIABILITY
2. Yes 🡪2. Was the result an intended consequence/result of the act?
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a. Yes 🡪 Proximate Cause Established, LIABILITY
b. No 🡪 3. Was ∆’s action a substantial factor in the harm?
i. No 🡪 No Prox Cause, NO LIABILITY
ii. Yes 🡪 4. Was the result highly extraordinary in light of
the circumstances? (foreseeable?)
1. No 🡪 Prox Cause Estab, LIABILITY
2. Yes🡪 NO LIABILITY
v. Application
1. But-for? Yes
a. But-for ∆’s conduct of fleeing from police, the helicopters
would never have been in position to crash.
2. Intended consequence? No
3. Substantial factor? Yes
a. He was fleeing when the accident occurred
b. No time lapse between his flight and the crash
c. Although ∆’s bad driving did not cause the helicopter’s
improper maneuver, his flight gave rise to excitement and
tension, which is a substantial factor
4. Highly extraordinary? No
a. Even though this has never happened before, “given the
emotional dynamics of any police pursuit, there is an
‘appreciable probability’ that one of the pursuers, in the heat of
the chase, may act negligently or recklessly to catch the
quarry.”
m. Commonwealth v. Root (Drag Race)
i. F: Victim and ∆ were drag racing.
ii. The victim attempted to pass the ∆ in a no-passing zone when a truck was
approaching from the opposite direction. Victim ran into the truck head on
and died.
iii. R: “The tort liability concept of proximate cause is not applicable to
prosecutions for criminal homicide and more direct causal connection is
required for conviction.”
iv. R: To find criminal liability – a direct causal connection is required and a
mere assessment of proximate cause will not suffice.
v.
Here, the victim recklessly caused his own death – there was lack of direct
cause between ∆ and the death, even though there was some showing of
proximate cause.
vi. Can make a difference if the deceased is a participant or an innocent
bystander
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n. People v. McGee (I shot him for taking my money)
i. F: Dispute in a bar over missing $40. ∆ shoots at someone and hits the
victim instead. Victim is taken to the hospital but does not get treatment for
ten hours (gross negligence by the doctor). He bleeds to death. ∆ claims the
malpractice was a supervening cause of death.
ii. R: When a person inflicts a wound on another which is dangerous, or
calculated to destroy life, the fact that the negligence, mistake, or lack of
skill of an attending physician or surgeon contributes to the death affords no
defense to a charge of homicide.
iii. R: Delay in medical treatment is not an intervening force and cannot be a
supervening cause.
iv. H: ∆ cannot complain because no force intervened to save him from the
natural consequence of his criminal act.
v.
vi.
∆’s action was “sufficient to cause death.”
Think about the policy behind this.
vii. Majority Opinion: negligence of treatment is a foreseeable intervening
cause so still guilty of homicide
o. Miscellaneous
i. Homicide has a higher standard of causation
ii. A foreseeable intervening cause cannot become the proximate cause
1. i.e. if you shoot someone, then a doctor commits malpractice while
treating the gunshot wound and the person dies, you are still liable
a. there may be an exception to this if the outside conduct is
completely unreas
iii. Have the duty to act when you create the danger
Chapter 5 Summary
Major Themes:
● Actus reus: the crime of complicity applies to persons who aid in the
commission of a crime, or who provide assistance after the crime is
completed. Usually requires tangible assistance or active promotion that
goes beyond mere encouragement.
● Mens Rea: The mental state for complicity is the purpose of promoting or
facilitating the commission of the crime. Such purpose may be inferred
from a person’s conduct.
o Two separate components: 1) the intent to assist a principal actor in
committing the target act; and 2) the intent that the principal actually
commit that act. Can be inferred by a person’s actions.
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● Corporate Liability: although vicarious liability is disfavored, a
corporation may be held liable for the unlawful acts of employees, with
additional limitations often imposed by statute. A corporate officer may
be held liable for such unlawful acts when serving in a managerial
position with the power to correct criminal conduct
o VICARIOUS LIABILITY- usually not in criminal law, but most
commonly employed against corporations and corporate agents.
o MPC provides imposition of criminal liability on corporations and
some corporate officials in limited situations.
● Common law classifications:
o Principles of first degree: who actually perpetrated the crime
o Principles of the second degree: who were actually or constructively
present at the scene of the crime and aided or abetted its commission
o Accessories before the fact: who aided or abetted the crime, but were
not present at its commission, and
o Accessories after the fact: who rendered assistance after the crime
was complete.
o In misdemeanor cases, all accomplices were treated as principle.
o All parties to a felony received death penalty and an accessory could
not be convicted without the prior conviction of the principal
offender.
● Merger: of principal and accessories occurred so not there is only a single
crime: complicity. (with the exception of accessories after the fact).
● Model Penal Code: A defendant is an accomplice to another person in the
commission of an offense if either:
o (a) with purpose of promoting or facilitating the commission of the
offense he
▪
solicits such other person to commit it
▪
aids or agrees to attempts to aid such other person in planning
or committing it, or
▪
having a legal duty to prevent the commission of the offense,
fails to make proper effort so to do; or
o (b): his conduct is expressly declared by law to establish his
complicity.
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● One who is complicit in a crime may have explicitly or implicitly engaged
in a conspiracy to commit that crime.
XI.
Complicity
a. Accomplice Liability
i. Principals and Accessories
1. Accomplice Liability🡪 Common Law Felonies
a. Principals in the first
i. There, has the mental state, performed the act.
ii. Ex: inside the bank with the gun, robbing the teller.
b. Principals in the second
i. Actually or constructively present at the scene of the
crime and aided or abetted its commission.
ii. Ex: hanging outside the bank watching for the police
while the others were in the bank.
c. Accessories before the fact
i. Aided or abetted the crime, but were not present at its
commission
ii. Ex: helped plan the robbery, bought supplies, etc.
d. Accessories after the fact
i. Rendered assistance after the crime was complete
ii. Ex: got rid of the evidence for the others, provided a place
to hide to the others.
2. Accomplice Liability🡪 Modern Statutes
a. Modern Statutes
i. No such distinctions
ii. Merger: All of the first 3 treated the same
b. Accessory after the fact = its own crime.
i. TPC 38.05: Hindering Arrest or Apprehension
3. TPC 7.01 Parties to Offenses
a. A person is criminally responsible as a party to an offense if the
offense is committed by his own conduct, by the conduct of
another for which he is criminally responsible, or by both.
b. Each party to an offense may be charges with commission of
the offense.
c. All traditional distinctions between accomplices and principals
are abolished by this section, and each party to an offense may
be charged and convicted without alleging that he acted as a
principal or accomplice.
4. Baker v. Alaska (hungry pizza thieves)
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a. F: Baker was one of three men who beat up the pizza delivery
guy and stole his pizza. Baker was upset that judge gave an
instruction that could have led to his conviction as a principal or
an accomplice.
b. Claim: ∆ contends that he was indicted and tried as a principal
throughout the process but then in the jury instructions the
judge includes the option to convict him as an
accessory/accomplice. He claims this is a NOTICE problem.prejudice
c. When an indictment alleges that ∆ personally committed the
acts constituting the crime, ∆is on notice that he or she may also
be convicted under a theory of accomplice liability if the State
establishes that ∆is responsible for the acts of others.
i. Here, the state was actually attempting to prove the more
difficult one – there does not seem to be a real prejudice.
d. Being charged as a principal and being charged as an
accomplice = the same thing, those are not separate crimes.
5. New Hampshire v. Sinbandith (cop gave me money for coke🡪 but my
friend handed it to him)
a. F: Undercover agent gave ∆ money and ∆ would leave with a
friend and then come back and the friend would hand the agent
crack cocaine. ∆’s argument was that he wasn’t sure what he
was being charged with, “accomplice to sale of controlled drug”
or “did, in concert with and aided by another, knowingly sell or
dispense a quantity of the controlled drug.” (principal)
b. R: An indictment that alleges principal liability without
reference to accomplice liability sufficiently charges the
defendant as an accomplice.
i. In concert language was enough to cover accomplice or
principal.
6. Principals and Accessories
a. Baker was charged with principal and the court said he could be
convicted with accomplice.
b. Sinbandith was charged with accomplice and court said he
could be convicted with principal.
c. Moral of the story: it goes both ways!
b. Aiding or Encouraging
i. The ACT of Aiding or Encouraging
1. Lane v. Texas (Patricia who?)
a. F: Prosecution has to prove that one witness, Patricia, was not
an accomplice in order for that witness’s testimony to support a
conviction.
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b. R: A person is an accomplice if they could be prosecuted for the
same offense as ∆, or a lesser included offense.
c. R: “A conviction cannot be had upon the testimony of an
accomplice unless corroborated by other evidence tending to
connect the defendant with the offense committed; and the
corroboration is not sufficient if it merely shows the
commission of the offense.” TCCP art 38.14.
i. We don’t allow a conviction based solely on
uncorroborated accomplice testimony. As a policy
matter, this prevents the group of criminals from
blaming it all on one of them – unreliable.
ii. Accomplice testimony is not enough to get a conviction.
d. R: Mere Presence at the scene of the crime alone is not enough
for accomplice liability – there must be an affirmative act or
omission.
i. The omission to act in alerting anyone of the crime is not
sufficient to make the person an accomplice.
e. H: Patricia was NOT an accomplice.
i. She was present during the entire series of events and
knew what they were doing, BUT she did not commit any
affirmative act in furtherance of the crime.
ii. Her omission of not stopping the crime and not alerting
anyone about the crime was not an omission that gives
rise to criminal punishment.
2. MPC § 2.06. Liability for Conduct of Another; Complicity
a. A person is guilty of an offense if it is committed by his own
conduct or by the conduct of another person for which he is
legally accountable, or both.
b. A person is legally accountable for the conduct of another
person when:
i. acting with the kind of culpability that is sufficient for
the commission of the offense, he causes an innocent or
irresponsible person to engage in such conduct; or
ii. he is made accountable for the conduct of such other
person by the Code or by the law defining the offense; or
iii. He is an accomplice of such other person in the
commission of the offense.
c. A person is an accomplice of another person in the commission
of an offense if:
i. with the purpose of promoting or facilitating the
commission of the offense, he
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1. solicits such other person to commit it, or
2. aids or agrees or attempts to aid such other person
in planning or committing it, or
3. having a legal duty to prevent the commission of
the offense, fails to make proper effort so to do; or
ii. His conduct is expressly declared by law to establish his
complicity.
d. When causing a particular result is an element of an offense, an
accomplice in the conduct causing such result is an accomplice
in the commission of that 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.
e. A person who is legally incapable of committing a particular
offense himself may be guilty thereof if it is committed by the
conduct of another person for which he is legally accountable,
unless such liability is inconsistent with the purpose of the
provision establishing his incapacity.
f. Unless otherwise provided by the Code or by the law defining
the offense, a person is not an accomplice in an offense
committed by another person if:
i. he is a victim of that offense; or
ii. the offense is so defined that his conduct is inevitably
incident to its commission; or
iii. he terminates his complicity prior to the commission of
the offense and
1. wholly deprives it of effectiveness in the
commission of the offense; or
2. Gives timely warning to the law enforcement
authorities or otherwise makes proper effort to
prevent the commission of the offense.
g. An accomplice may be convicted on proof of the commission of
the offense and of his complicity therein, though the person
claimed to have committed the offense has not been prosecuted
or convicted or has been convicted of a different offense or
degree of offense or has an immunity to prosecution or
conviction or has been acquitted.
3. TPC §7.02 Criminal Responsibility for Conduct of Another
a. A person is criminally responsible for an offense committed by
the conduct of another if:
i. acting with the kind of culpability required for the
offense, he causes or aids an innocent or nonresponsible
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person to engage in conduct prohibited by the definition
of the offense;
ii. acting with intent to promote or assist the commission of
the offense, he solicits, encourages, directs, aids, or
attempts to aid the other person to commit the offense;
or
iii. Having a legal duty to prevent commission of the offense
and acting with intent to promote or assist its
commission, he fails to make a reasonable effort to
prevent commission of the offense.
b. If, in the attempt to carry out a conspiracy to commit one
felony, another felony is committed by one of the conspirators,
all conspirators are guilty of the felony actually committed,
though having no intent to commit it, if the offense was
committed in furtherance of the unlawful purpose and was one
that should have been anticipated as a result of the carrying out
of the conspiracy.
4. N.H. v. Merritt (shopping with stolen card)
a. F: ∆ and his GF made several transactions with the stolen card.
b. H: First of the four there was insufficient evidence of the actus
reus element for accomplice liability, but on the other three
there was enough.
c. What was different about the first one?
i. Mere presence—there was no evidence that ∆ did anything
other than accompany GF. No evi about where ∆ was
when purchased or that ∆ did/said anything that aided
GF.
ii. In the other three, defendant did all the talking,
negotiated lower prices, picked out the items, etc.
d. R: Mere presence at the scene will not constitute accomplice
liability. The state must put on evidence of an act in
furtherance of the principal crime.
c. Promoting or Facilitating
i. Intent to Promote or Facilitate a Crime
1. Basic Criminal Liability = Actus Reus (an act) + Mens Rea (criminal
mind)
2. Accomplice Criminal Liability = Actus Reus (an act) + Mens Rea
a. (1) intent to assist the primary party to engage in the conduct
that forms the basis of the offense
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b. + (2) mental state required for commission of the offense, as
provided in the definition of the substantive crime
3. To facilitate a crime, a perpetrator must have: (mens rea of
accomplice liability)
a. The intent to assist the principal, AND
b. The intent that the principal actually commit a crime
i. This pertains to encouraging a crime
4. Accomplices must have intent to aid the principal AND the req mens
rea for the crime committed
5. Facilitators do not need the req mens rea
6. Hawaii v. Soares (shoplifting lovers)
a. F: ∆ and his GF were robbing stores. The court’s accomplice
jury instruction implied that a person merely needs to be
present and participate in an act of the crime to be guilty as an
accomplice.
b. R: To be found guilty as an accomplice, a person must act with
the intent of promoting or facilitating the commission of the
crime.
c. R: The jury instruction must charge all elements of the offense,
including mens rea, because the State must prove all elements
BARD.
d. Note: this means there will be a new trial, not that ∆ is not
guilty.
7. N.Y. v. Kaplan (selling coke to a cop)
a. F: ∆, with others, sold cocaine to an undercover officer.
Although the mens rea for selling cocaine was knowingly, ∆
claimed that the charge should have said that ∆ had to have the
specific intent to sell a controlled substance.
b. H: this charge was not necessary
c. Just because you have to show that someone intentionally aided
does not mean that the state also show that he intentionally
sold; knowledge was enough.
i. Intent to aid/assist = specific intent
ii. Underlying Offense Mens Rea = knowledge
d. So you need specific intent to aid and then knowledge as to the
underlying crime.
8. Pennsylvania v. Potts (stabbing “only to hurt”)
a. F: ∆ was charged with murder in the first degree. He claims
that he was not the one to do the stabbing and that his intent was
only to “hurt” the victim.
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b. H: Court found that there was sufficient evidence to
demonstrate the necessary mens rea.
i. Went through pockets after, carried a gun with him,
helped him get there, made a statement a few days
earlier about killing him, etc.
ii. Intent was required here because that is the mens rea
necessary for first degree murder (the jury didn’t have to
believe the defendant’s claims)
ii. Unintentional Crimes
1. Is this possible?
a. Many jurisdictions say no because, logically, you cannot intend
to aid an unintentional offense.
b. BUT, some jurisdictions allow this.
2. How is this possible?
a. Let’s look at an example. In R. v. Creamer, D helped a woman
procure an “abortionist” to perform an illegal abortion for her.
The woman ended up dying, and D was convicted of
manslaughter because he intentionally procured a dangerous
crime or reckless act.
b. See Criminal Law Nutshell §15.05
XII.
Vicarious Liability
a. Sometimes an individual may be found guilty based on the criminal actions of
other persons, about which the individual may be unaware.
b. This is unusual and generally inappropriate in criminal law. It is mostly used
against corporations and corporate agents.
c. United States v. Parks (Rats in the Warehouse)
i. F: After some warnings ACME Inc. is charged with violation of FDA Act re:
contamination of products as a result of unsanitary warehouse conditions.
The corporation and Park, the president and CEO were charged.
ii. I: Can a CEO be charged for the acts of an underling?
iii. R: “A corporate agent, through whose act, default, or omission the
corporation committed a crime, was himself guilty of that crime.”
iv. R: Strict liability
v. R: Liable whether or not they committed the act
vi. Government establishes a prima facie case:
1. By reason of his position in the corporation,
2. Responsibility and authority either to
a. Prevent in the first instance, or
b. Promptly to correct
3. The violation complained of, and
4. That he failed to do so.
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a. The failure to do so is sufficient causal link.
vii. Once the Gov. establishes the prima facie case, the burden shifts to ∆, who
can claim that he was powerless to prevent or correct the violation.
viii. Remember that the government always has the ultimate burden of proving
beyond a reasonable doubt that ∆ is guilty.
d. MPC § 2.07. Liability of Corporations
i. A corporation may be convicted of the commission of an offense if:
1. the offense is a violation or the offense is defined by a statute other
than the Code in which a legislative purpose to impose liability on
corporations plainly appears and the conduct is performed by an
agent of the corporation acting in behalf of the corporation within the
scope of his office or employment, except that if the law defining the
offense designates the agents for whose conduct the corporation is
accountable or the circumstances under which it is accountable, such
provisions shall apply; or
2. the offense consists of an omission to discharge a specific duty of
affirmative performance imposed on corporations by law; or
3. the commission of the offense was authorized, requested,
commanded, performed or recklessly tolerated by the board of
directors or by a high managerial agent acting in behalf of the
corporation within the scope of his office or employment.
ii. When absolute liability is imposed for the commission of an offense, a
legislative purpose to impose liability on a corporation shall be assumed,
unless the contrary plainly appears.
iii. An unincorporated association may be convicted of the commission of an
offense if:
1. the offense is defined by a statute other than the Code that expressly
provides for the liability of such an association and the conduct is
performed by an agent of the association acting in behalf of the
association within the scope of his office or employment, except that
if the law defining the offense designates the agents for whose
conduct the association is accountable or the circumstances under
which it is accountable, such provisions shall apply; or
2. the offense consists of an omission to discharge a specific duty of
affirmative performance imposed on associations by law.
iv. As used in this Section:
1.
“corporation” does not include an entity organized as or by a
governmental agency for the execution of a governmental program;
2. “agent” means any director, officer, servant, employee or other
person authorized to act in behalf of the corporation or association
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and, in the case of an unincorporated association, a member of such
association;
3. “High managerial agent” means an officer of a corporation or an
unincorporated association, or, in the case of a partnership, a partner,
or any other agent of a corporation or association having duties of such
responsibility that his conduct may fairly be assumed to represent the
policy of the corporation or association.
v. In any prosecution of a corporation or an unincorporated association for the
commission of an offense included within the terms of Subsection (1)(a) or
Subsection (3)(a) of this Section, other than an offense for which absolute
liability has been imposed, it shall be a defense if the defendant proves by a
preponderance of evidence that the high managerial agent having
supervisory responsibility over the subject matter of the offense employed
due diligence to prevent its commission. This paragraph shall not apply if it
is plainly inconsistent with the legislative purpose in defining the particular
offense.
vi. (6)
1. A person is legally accountable for any conduct he performs or causes
to be performed in the name of the corporation or an unincorporated
association or in its behalf to the same extent as if it were performed
in his own name or behalf.
2. Whenever a duty to act is imposed by law upon a corporation or an
unincorporated association, any agent of the corporation or
association having primary responsibility for the discharge of the
duty is legally accountable for a reckless omission to perform the
required act to the same extent as if the duty were imposed by law
directly upon himself.
3. When a person is convicted of an offense by reason of his legal
accountability for the conduct of a corporation or an unincorporated
association, he is subject to the sentence authorized by law when a
natural person is convicted of an offense of the grade and the degree
involved.
e. TPC §7.22. Criminal Responsibility of Corporation or Association
i. If conduct constituting an offense is performed by an agent acting in behalf
of a corporation or association and within the scope of his office or
employment, the corporation or association is criminally responsible for an
offense defined:
1. in this code where corporations and associations are made subject
thereto;
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2. by law other than this code in which a legislative purpose to impose
criminal responsibility on corporations or associations plainly
appears; or
3. by law other than this code for which strict liability is imposed, unless
a legislative purpose not to impose criminal responsibility on
corporations or associations plainly appears.
ii. A corporation or association is criminally responsible for a felony offense
only if its commission was authorized, requested, commanded, performed,
or recklessly tolerated by:
1. a majority of the governing board acting in behalf of the corporation or
association; or
2.
a high managerial agent acting in behalf of the corporation or
association and within the scope of his office or employment.
f. TPC § 7.23. Criminal Responsibility of Person for Conduct in Behalf of
Corporation or Association
i. An individual is criminally responsible for conduct that he performs in the
name of or in behalf of a corporation or association to the same extent as if
the conduct were performed in his own name or behalf.
ii. An agent having primary responsibility for the discharge of a duty to act
imposed by law on a corporation or association is criminally responsible for
omission to discharge the duty to the same extent as if the duty were
imposed by law directly on him.
iii. If an individual is convicted of conduct constituting an offense performed in
the name of or on behalf of a corporation or association, he is subject to the
sentence authorized by law for an individual convicted of the offense.
g. Hy Vee Food Stores, Inc. (Selling Booze to Minors)
i. Different states, different statutes
ii. South Dakota
1. combined vicarious liability with strict liability
2. court did not care what precautions were taken
iii. Iowa
1. the difference here is the Iowa statute
2. the court found the corporate vicarious liability statute to be
inapplicable
iv. The court looks at mens rea; they are not omitting or liable for an omission
because they had put policies in place
v. Remember that for strict liability the offense needs to be regulatory/public
welfare, the punishment needs to be minor, and the conviction cannot harm
one’s reputation.
Chapter 6 Summary
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● Major Themes:
o Influence of the MPC: simplified to taking a “substantial step”
toward the commission of a crime, when that step is strongly
corroborative of criminal purpose. Other MPC reforms: elimination
of impossibility defense and imposition of strict limitations on the
abandonment defense.
o Traditional Approaches: some states continue to rely on common
law formula for actus reus. Conduct must go beyond mere
preparation an must come within a close degree of proximity to the
completion of the crime.
● Theory of Attempt Law: Although the criminal law does not punish
people merely for “bad thoughts,” the State does have an interest in
intervening early before a suspect goes so far as to commit a crime. The
goal is to prevent the defendant from actually causing harm. The law of
attempt plays this role in the law. The evidence required for an Attempt
conviction, both as to the mens rea and the actus reus, can vary from state
to state.
● Relationship to Other Crimes: The crimes of solicitation and conspiracy
also allow the police to intervene early to prevent the commission of
criminal acts.
● MPC Definition of Mens Rea: The MPC defines Attempt as occurring
when an individual, acting with the kind of culpability otherwise required
for commission of the crime, does any of three things:
o Purposely engages in conduct that would constitute the crime if the
attendant circumstances were as he believes them to be; OR
o When causing a particular result is an element of the crime, does or
omits to do anything with the purpose of causing or with the belief
that it will cause such result without further conduct on his part; OR
o Purposely does or omits to do anything, 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.
● Actus Reus Requirement of Attempt: Even if there is the required mens
rea, defendant must commit the actus reus.
o Common Law
▪ “physical proximity” doctrine
▪
“dangerous proximity” doctrine
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▪
“indispensable element” test
▪
“probable desistance” test
▪
“abnormal step” approach
▪ “res ipsa loquitur” or unequivocality test
o MPC Definition
▪ Lying in wait, searching for or following the contemplated
victim of the crime
▪
Enticing or seeking to entice the contemplated victim of the
crime to go to the place contemplated for its commission
▪
Reconnoitering the place contemplated for the commission of
the crime
▪
Unlawful entry of a structure, vehicle or enclosure in which it is
contemplated that the crime will be committed
▪
Possession of materials
▪
Possession, collection or fabrication of materials
▪
Soliciting an innocent agent to engage in conduct constituting
an element of the crime
● Attempt and Abandonment: if defendant commits both the actus reus and
the mens rea of the crime, the crime is complete and chargeable. Since
attempt can involve something less than the completed crime,
abandonment of the crime is still possible. The MPC recognizes
abandonment.
● Impossibility: An individual may attempt to commit a crime under
circumstances where it is impossible to actually complete the crime. The
courts, and criminal statutes, recognize the defense of impossibility in
some circumstances.
XIII. Attempt
a. Why do we have attempt?
i. We want to allow the police to intervene before the crime is actually
committed so that we can prevent the resulting harm to society.
b. TPC 15.01: Criminal Attempt
i. A person commits an offense if, with specific intent to commit an offense,
he does an act amounting to more than mere preparation that tends but fails
to effect the commission of the offense intended.
ii. Elements:
1. Specific intent to commit offense (mens rea)
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2. In Texas, you have to have the specific intent to commit the
underlying offense
3. Act more than mere preparation (actus reus)
4. Tends but fails commission
iii. In Texas, can be charged with the crime and attempt at the same time.
c. Mens Rea
i. Law distinguishes attempt from simply having bad thoughts
ii. State v. Maestas (Shot at Officer Out the Window)
1. F: During ∆’s escape from a bank robbery he shot at an officer. ∆ was
found guilty of attempted first degree murder. Under Utah law they
were supposed to look at the mens rea of the underlying offense,
which was “intentional or knowing.”
2. R: Where an intent to commit the particular crime committed is an
element of the completed crime, the same intent requirement applies
to the corresponding “attempt” crime.
a. This was the same approach at common law.
iii. People v. Gibson (Burglary Tools)
1. F: ∆ was caught with burglars’ equipment and a 14’ ladder outside a
building.
2. R: Elements of an attempted crime:
a. specific intent
b. Ineffectual overt act directed at its consummation
3. Here: Inferences based on circumstantial evidence are used to prove
intent with regards to criminal attempt, which is a question of fact.
a. The evidence in this case was a ladder, tools, burlap bag, wire
cutters, Etc.
d. Actus Reus
i. Common Law🡪 Attempt Actus Reus
1. Common Law looks at what is left to be done – how close from almost
complete.
2. Common law approaches to define actus reus:
a. physical proximity doctrine
i. Δ committed overt act that was proximate to the
completed crime
b. dangerous proximity doctrine
i. ct considers gravity and probability of the offense, and
nearness of act to the crime
c. indispensable element test (sim. to proximity)
i. emphasizes whether an indisp aspect of the criminal
endeavor remains over which the actor has not yet
acquired control
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d. probable desistance test
i. focuses on whether, in the ordinary and natural course of
events, without interruption from an outside source, Δ’s
conduct will result in crime intended
e. abnormal step approach
i. focus on whether Δ’s conduct has gone beyond the point
where the normal citizen would think better of his
conduct and desist
f. res ipsa loquitur or unequivocality test
i. Δ’s conduct manifests an intent to commit a crime
3. Seem to focus on what is left to be done; was there still something
substantial or significant?
ii. MPC 5.01 – Substantial Step Analysis
1. MPC asks how far from zero acts the criminal has gone.
2. Lists acts that shall not be held insufficient as a matter of law, if they
are strongly corroborative of the actor’s criminal purpose
a. Lying in wait; searching for the victim
b. Enticing the victim to go to the place of the intended crime
c. Reconnoitering the place of the crime
d. Unlawful entry of a structure, vehicle, or enclosure in which
crime will be committed
e. Possession of materials to use for the crime that are designed
for such unlawful use
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f. Possession of materials to be used in the crime where there is
no lawful purpose of the possession under the circumstances
g. Soliciting an innocent agent to engage in conduct constituting
an element of the crime
iii. Commonwealth v. Peaslee (Attempting to Burn Building)
1. F: ∆ was charged with attempting to burn a building. He had Poured
fuel, arranged combustibles so they were ready to be lighted, set up a
candle, and enlisted help. ∆ then changed his mind as he drove closer
to the building.
a. All that was left was lighting the match
2. R: Mere preparation is not enough to be guilty of attempt.
a. The degree of proximity held sufficient may vary with
circumstances.
b. Statute does not punish every act done towards the commission
of a crime – substantial steps!
c. Here: The court didn’t think he did enough 🡪 he just set it up. He
did not have the present intent to set the fire.
d. Under CL it took a lot before you could convict for attempt = this
case reflects that.
iv. People v. Rizzo (Robbing the Payroll Guy)
1. F: ∆ intended to rob the payroll guy but couldn’t find him.
2. NY statute = An act done with intent to commit a crime, and tending
but failing to effect its commission, is “an attempt to commit that
crime”
3. H: Not guilty of attempted robbery. There was not a “dangerous
proximity to success” because they had not found the person they
intended to rob.
4. R: “Tends but fails.” – TPC
a. Language is similar to the Texas statute.
b. Only “those acts only as tending to the commission of the crime
which are so near to its accomplishment that in all reasonable
probability the crime itself would have been committed, but for
timely interference” are considered to be acts “tending to the
commission of the crime.”
c. Immediately and not remotely connected with and directly
tending
d. So near to the result that the danger of success is very great
e. Dangerous proximity to success
5. This case used CL – focuses on prox to actually committing crime
v. United States v. Jackson (Staking Out a Bank)
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1. F: ∆s cased a bank a couple of times and were driving around with all
of their guns before it was ultimately thwarted.
2. R: Under the MPC, the required actus reus is a substantial step toward
the commission of the crime. “A substantial step must be strongly
corroborative of the firmness of ∆’s criminal intent.”
a. That further major steps that must be taken before the crime
can be completed does not preclude a finding that the steps
already taken are substantial.
b. Prosecution does not need to show that ∆ would probably not
have desisted prior to completing the crime.
3. The substantial steps here were:
a. Suitcase full of guns, had scoped out the bank before,
coordinated with other people, changed with license plates
4. H: Court found these steps sufficient
vi. Think about how you argue:
1. Under MPC
a. Substantial step
2. Under Texas
a. Act amounting to more than mere preparation.
b. This is a SPECTRUM: some place where we go beyond
preparation. It is FUZZY.
c. State has the burden of proving it.
d. Look at the acts, the case law, compare what your client did to
what other Defendants have done in the opinions.
vii. Common Law Test
1. Physical Proximity
2. Dangerous Proximity
3. Indispensable Element
4. Probable Desistance
5. Abnormal Step
6. Res Ipsa Loquitur
viii. Distinguishing B/t MPC and Common Law
1. MPC focuses on what has actually been done toward the commission
of a crime
a. This leads to more convictions…….
XIV. Abandonment
a. State v. Workman (Robbing Quicky Mart)
i. F: ∆s decide to commit robbery. They got out of the car, took the gun from
the trunk and loaded it, took a gunny sack with holes for eyeholes, a stocking
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cap, both intended as masks and walked behind the station and waited. ∆s
decided not to go through with the plan and began to walk away.
ii. R: Once a substantial step has been taken, and the crime of attempt is
accomplished, the crime cannot be abandoned. (b/c crime of attempt
already committed)
1. Abandonment DOES NOT require its own instruction because it is not
a true defense. Rather, evidence of abandonment can be offered at
trial to show that a substantial step was never taken.
2. Other jurisdictions are more receptive to renunciation.
b. MPC §5.01 Criminal Attempt - Renunciation
i. When the actor's conduct would otherwise constitute an attempt under
Subsection (1)(b) or (1)(c) of this Section, it is an affirmative defense that he
abandoned his effort to commit the crime or otherwise prevented its
commission, under circumstances manifesting a complete and voluntary
renunciation of his criminal purpose. The establishment of such defense
does not, however, affect the liability of an accomplice who did not join in
such abandonment or prevention.
ii. Within the meaning of this Article, renunciation of criminal purpose is not
voluntary if it is motivated, in whole or in part, by circumstances, not
present or apparent at the inception of the actor's course of conduct, that
increase the probability of detection or apprehension or that make more
difficult the accomplishment of the criminal purpose. Renunciation is not
complete if it is motivated by a decision to postpone the criminal conduct
until a more advantageous time or to transfer the criminal effort to another
but similar objective or victim.
c. TPC 15.04: Renunciation Defense (mirrors MPS, plus has qualifiers of
renunciation)
i. It is an affirmative defense to prosecution under section 15.01 that under
circumstances manifesting a voluntary and complete renunciation of his
criminal objective the actor avoided commission of the offense attempted
by abandoning his criminal conduct or, if abandonment was sufficient to
avoid commission of the offense, by taking further affirmative action that
prevented the commission.
ii. Renunciation is not voluntary if it is motivated in whole or in part:
1. By circumstances not present or apparent at the inception of the
actor’s course of conduct that increase the probability of detection or
apprehension or that make more difficult the accomplishment of the
objective; or
2. By a decisions to postpone the criminal conduct until another time or
to transfer the criminal act to another but similar objective or victim.
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iii. Evidence that the defendant renounces his criminal objective by
abandoning his criminal conduct . . . before the criminal offense was
committed and made substantial effort to prevent the commission of the
object offense shall be admissible as mitigation at the hearing on
punishment if he has been found guilty of criminal attempt, criminal
solicitation, or criminal conspiracy; and in the event of a finding of
renunciation under this subsection, the punishment shall be one grade
lower that that provided for the offense committed.
d. MPC Attempt
i. MPC § 5.01(1)(a), (b): “last proximate act”
1. No requirement that the acts be “strongly corroborative”
ii. MPC § 5.01(1)(c): “substantial step”
1. Look to MOC § 5.02 to see what that means
iii. MPC § 5.01(2): If pros can establish that one of the enumerated situations has
occurred, the trier of fact must be permitted to determine whether ∆ has
taken a substantial step in a course of conduct planned to culminate in his
commission of a crime IF ∆’s conduct is found to be “strongly corroborative”
of his criminal intent.
XV.
Impossibility🡪 PART OF ATTEMPT
a. State v. Guffey & State v. Curtis (Deer Decoys)
i. ∆s in two different states are charged with taking a deer out of season.
Charged with Attempt because shooting a fake deer is not illegal. One got
exonerated because of impossibility, the other didn’t. Two approaches:
1. Guffey: ∆ cannot be charged with attempt. Looked at the underlying
crime and because it is not a crime to shoot a fake deer, it is legally
impossible to convict for an attempt to shoot a fake deer.
2. Curtis: ∆ can be charged with attempt. ∆ intended to shoot a deer out of
season and performed an overt act. It does not make a difference that
you were prevented from shooting a wild deer because you were
tricked into shooting a decoy.
b. People v. Dlugash (murder of a dead man)
i. F: ∆ shot a man who had already been shot, and might have already been
dead. State failed to prove that the victim was still alive when ∆ shot him.
ii. Issue: Whether an individual should be liable for an attempt to commit a
crime when, unknown to him, it was impossible to successfully complete
the crime attempted?
iii. Common Law Rule: legal impossibility was a defense, but factual
impossibility was not.
iv. The modern trend is to shift the focus of the analysis from the surrounding
circumstances to the actor’s mental state.
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v. H: ∆ cannot raise impossibility defense bc a murder would have been
committed if the surrounding circumstances had as as ∆ believed them to
be.
c. Attempt – Common Law Impossibility
i. Legal Impossibility
1. ∆ thinks that what he is doing is in fact against the law, but what he is
doing is actually lawful.
2. Means that even attempt is impossible
3. i.e. scalper cannot be arrested for scalping (even if he thinks its
illegal) if it is not illegal in that jurisdiction
ii. Factual Impossibility
1. What ∆ is trying to do is unlawful, but his means are incapable of
achieving these ends.
2. Not a defense to a crime
3. i.e. if a pickpocket reaches into your pocket but comes up empty, he is
still guilty
iii. Think About Attempt Like This…
1. Attempt is separate offense.
2. Backing off the crime or failing to succeed in committing the crime
attempted does not automatically mean ∆ is guilty of attempt to
commit that crime.
3. The next step is to assess whether ∆ is guilty of attempted
________________.
a. Act amounting to more than mere preparation? TPC 15.01
b. Renunciation defense? TPC 15.04(a) & (c)
c. Renunciation mitigation? TPC 15.04(d)
d. Impossibility? MPC 5.01 – possibility is irrelevant as long as Δ
acted with the necessary intent
Chapter 7 Summary
● Major Themes:
o Controversial Crime: Most jurisdictions include a conspiracy
offense in their crimes code. Many do not, however, believing that
the conduct covered by that offense is adequately criminalized by
other substantive or inchoate offenses. And some commentators
have argued that conspiracy no longer serves a useful or sensible
function and that the conspiratorial “net” extends too broadly to
individuals who were not significantly involved in the supposed
criminal enterprise.
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o Change in conspiracy approach: The traditional “bilateral”
conspiracy crime was aimed at responding to the supposed special
danger to society posed by actual group criminal activity; the modern
“unilateral” approach, in contrast, criminalizes the actions of a
single individual who is or simply believes that he or she is agreeing
with another person to commit a criminal act.
● Bilateral vs. Unilateral Conspiracies: in bilateral conspiracy jurisdictions,
two or more persons must conspire for a conspiracy to exist. In unilateral
jurisdictions, an accused can be found guilty of conspiracy if the accused
believes that he or she has agreed to commit a crime with another,
whether or not that is true.
● Mens Rea: The mens rea of conspiracy is the intent to agree with another
person to commit a crime and the intent to commit that crime. There is no
conspiracy to commit a crime with a mens rea of recklessness or
negligence. And the mere knowledge that someone else intends to
commit a crime is not enough to make a person a conspirator.
● Actus Reus: The actus reus of conspiracy is an agreement with another
person to commit a criminal act. A single conspiracy can have multiple
criminal objectives. The number of conspiracies that exist is determined
by the number of conspiratorial agreements, not by the number of
criminal objectives.
● Overt Act: Some conspiracy statutes also require proof of an overt act
undertaken by one of the co-conspirators in furtherance of the
conspiracy🡪 separate from the actus reus of the conspiratorial offense
● Renunciation or Withdrawal: Some jurisdictions allow for a renunciation
or withdrawal defense to the crime of conspiracy if the accused’s actions
are voluntary and complete and he or she provides assistance in
preventing the crime.
● Merger: Unless the law expressly provides otherwise, conspiracy
convictions do not merge with convictions for crimes which were an object
of the conspiracy unless the criminal objectives went beyond any
particular offense actually committed in pursuance of the conspiratorial
goals.
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● Culpability of Co-Conspirators: Many jurisdictions follow the federal
criminal law approach which provides that a conspirator is deemed
culpable for the reasonably foreseeable criminal acts of his or her
co-conspirators undertaken in furtherance of the conspiracy.
XVI. Conspiracy
a. Purpose of Punishing Conspiracy
i. Preventative Law Enforcement (like the other inchoate crimes): allows
police to intervene at a much earlier point than under attempt.
ii. Special Dangers of Group Criminality:
1. Greater strength, opportunities, and resources
2. Fear of/loyalty to co-conspirators
3. Increased morale
4. Efficiency
b. Unilateral-Bilateral Jurisdictions
i. Bilateral Conspiracy
1. Common Law Approach
2. There have to be two or more bad actors conspiring to commit some
further offense
3. Cannot be conspiracy if it is between one actor and an officer or person
acting as an agent.
4. Federal govt uses bilateral approach
ii. Unilateral Conspiracy
1. MPC & TPC Approach.
2. Focuses on the acts and intents of one person in the conspiracy.
3. Allows for conspiracies with undercover officers.
4. Majority of jurisdictions are unilateral
5. Unilateral allows you to hone in on the individuals intent and ignore
that of the co-conspirators.
6. Assess INDIVIDUAL liability
c. TPC § 15.02 Criminal Conspiracy
i. A person commits criminal conspiracy if, with intent that felony be
committed:
1. He agrees with one or more persons that they or one or more of them
engage in conduct that would constitute the offense; and
2. He or one or more of them performs an overt act in pursuance of the
agreement.
ii. An agreement constituting a conspiracy may be inferred from acts of the
parties.
iii. It is no defense to prosecution for criminal conspiracy that:
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1. One or more of the coconspirators is not criminally responsible for
the object offense.
2. One or more of the coconspirators has been acquitted, so long as two
or more coconspirators have not been acquitted;
3. One or more of the coconspirators has not been prosecuted or
convicted…
4. The actor belongs to a class of persons that by definition of the object
offense is legally incapable of committing the object offense in an
individual capacity; or
5. The object offense was actually committed.
d. State v. Huff (election bribery)
i. F: ∆ was convicted of conspiracy to commit election bribery. He claimed on
appeal that, because the persons with whom he was found to have conspired
were undercover officers ineligible to vote in the election involved, it was
impossible for him to have committed the crime of conspiracy.
ii. Statute: “Whoever, with intent that a crime be committed, agrees or
combines with another…”
iii. R: “The unilateral approach assesses the subjective, individual behavior of a
defendant in determining guilt. Under the unilateral approach, criminal
conspiracy will lie even where one of two alleged ‘co-conspirators’ is,
unknown to the defendant, an undercover police agent or a police informant
who merely feigns participation in the conspiracy.”
iv. R: conspiracy is an inchoate crime, meaning that the underlying crime does
not need to be committed.
1. There can be conspiracy even though the goal of the conspiracy is
impossible.
e. Wharton’s Rule: An agreement between two persons to commit an offense that by
definition requires the voluntary concerted participation of two persons, cannot be
prosecuted as a conspiracy.
i. Classic Crimes: bigamy, adultery, and incest
ii. Other crimes: dueling, sale of contraband, and receipt of a bribe.
1. Wharton’s Rule was not a bar to a conspiracy prosecution for these at
common law
iii. Rationale: if a substantive offense cannot be committed in the absence of an
agreement, the added dangers inherent in group criminality are absent.
iv. State v. Mendoza (drugs & Wharton’s Rule)
1. F: ∆ claims that he was convicted of conspiring with Clement to
deliver cocaine to Clement, and therefore, Wharton’s Rule precludes
conviction of conspiracy (because it took two people to commit the
crime of buying and selling drugs).
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2. H: The court said that under Wharton’s Rule, ∆ could not be convicted
of conspiracy, but they declined to adopt the rule.
f. Mens Rea
i. Conspiracy Mens Rea
ii. Intent to agree to commit a particular crime, and
iii. Specific Intent to Commit the criminal act itself
1. Which means the underling crime must require more than reckless or
negligent behavior.
2. So, whether you can conspire to commit a crime requires that you look
to that crime and determine what mental state is required.
3. If the crime lists multiple mental states, it will depend on what was
charged and what was proven.
iv. Mens Rea of conspiracy is not established simply by showing that an
accused person was merely present while others were conspiring or that the
accused merely knew that someone else intended to commit a crime
v. Palmer v. Colorado (shooting into crowd conspiracy)
1. F: ∆ fired gunshots at several victims. He was convicted of conspiracy
to commit reckless manslaughter.
2. I: Can there be conspiracy to commit reckless homicide?
3. R: “Logic dictates that one cannot agree in advance to accomplish an
unintended result.”
4. H: There cannot be a conspiracy to commit reckless manslaughter.
a. Legal and logical impossibility
vi. U.S. v. Hassoun (terrorist plot)
1. F: Charged with multiple counts of conspiracy.
2. Circumstantial evidence can prove specific intent.
vii. United States v. Blankenship (meth conspiracy)
1. F: ∆ agrees to rent his trailer to a drug ring to make meth.
2. I: Did ∆ intend to join the conspiracy to manufacture and distribute
meth, or did he just know of it?
3. R: A conviction for conspiracy requires more than mere knowledge of
or assistance to the criminal enterprises of others – there must exist
an intent to be part of the conspiracy and an awareness of the scope of
the enterprise.
a. Stake in the Matter: “supplier joins a venture only if his
fortunes rise or fall with the venture’s, so that he gains by its
success.”
b. Numerous acts of assistance indicate conspiracy.
4. H: ∆ knew what they were going to do in his trailer, but that is no
evidence that he joined the conspiracy for the entire criminal
enterprise.
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5. No bright line rule to determine whether someone is conspiring →
weigh the factors
g. Actus Reus: Agreement
i. State v. Rosado (enemy action)
1. F: ∆ was convicted of conspiracy to commit murder. There was no
direct evidence of his involvement so the court looked at the “intricate
web of circumstantial evidence.”
2. R: Actus Reus of Conspiracy = Agreement
a. Agreement established inferentially or circumstantially.
b. Pay attention to the “net” effect – this is good terminology to
argue.
3. R: Mere presence at the scene of a crime, even coupled with
knowledge of the crime, is not sufficient to establish guilt of
conspiracy.
a. “The dividing line between ‘mere presence at the scene of the
crime,’ on the one hand, and a series of ‘timely appearances,’
must be located by judgment rather than mathematics in any
given case.”
h. Chain Theory
i. Although don’t know names of others involved, still can be charged with
conspiring with them
ii. i.e. narcotics importation and distribution
iii. Although A only knows about B’s involvement and doesn’t know names of C
and D, A can still be charged with conspiring with them
i.
Wheel Theory
i. Linked through common hub but all can be charged with conspiring with
each other
j.
Overt Act
i. Kansas v. Crockett (faulty conspiracy indictment)
1. R: The overt act alleged must be more than the act of agreement; it
must be a step towards the commission of the underlying crime.
a. For an “Overt Act,” you just need SOME act—not more than
mere preparation or a substantial step—just SOME act.
2. Conversations among co-conspirators in forming and planning the
conspiracy are not over acts in furtherance of the conspiracy.
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a. A: MET with B, SPOKE with B, ASKED B…..Those are all
conversations, not acts – those go towards the AGREEMENT
element, but not the OVERT ACT element.
3. R: The indictment MUST allege an overt act
a. Why? NOTICE! The defendant and the attorney must be given a
fair opportunity to defend the charges and not be kept in the
dark about what the State’s case is based upon.
ii. How much is enough for an overt act?
1. For conspiracy, gathering supplies (i.e. mere prep) may be enough to
charge (not enough for attempt)
2. Standard is much lower than for attempt – just meeting w/ someone
may not be enough but beginning to collect supplies is
iii. People v. Mamaril (jailhouse code words)
iv. F: ∆ was charged with multiple counts. ∆’s role in the conspiracy was to pick
up drugs and cut them, etc. The conversations were in code, recorded by the
jail.
1. ∆’s claim = Co-conspirator testimony on overt act was not
corroborated so State cannot meet its burden.
v. R: Corroboration need not confirm EVERY point – it must substantiate
enough to support the testimony.
1. With corroboration, the evidence doesn’t have to prove the element
BARD it only has to support the testimony.
k. Renunciation or Withdrawal
i. Inchoate Crimes & Renunciation
1. TPC § 15.04 applies only to Chapter 15 Offenses – Preparatory
Offenses
a. Attempt 15.01
b. Conspiracy 15.02
c. Solicitation 15.03
2. Renunciation must be
a. complete and voluntary, AND
b. must take further affirmative action that prevented the
commission of the offense.
3. Note: if ∆ made a substantial effort to prevent the commission of the
offense, but did not prevent it, then the punishment will be one grade
lower. 15.04(d).
4. Can renounce if haven’t taken overt act yet
5. Renunciation: TPC 15.04(b)
a. It is an affirmative defense to prosecution under Section
15.02(Conspiracy) or 15.03(Solicitation) that under
circumstances manifesting a voluntary and complete
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renunciation of his criminal objective the actor countermanded
his solicitation or withdrew from the conspiracy before
commission of the object offense and took further affirmative
action that prevented the commission of the object offense.
b. COMPLETE DEFENSE 🡪 ACQUITTAL
6. Mitigation; TPC 15.04(d)
a. Evidence that the defendant renounces his criminal objective
by abandoning his criminal conduct countermanding his
solicitation, or withdrawing from the conspiracy before the
criminal offense was committed and made substantial effort to
prevent the commission of the object offense shall be
admissible as mitigation at the hearing on punishment if he has
been found guilty of criminal attempt, criminal solicitation, or
criminal conspiracy; and in the event of a finding of
renunciation under this subsection, the punishment shall be
one grade lower that that provided for the offense committed.
b. MITIGATION ONLY 🡪 Still guilty, maybe lesser sentence
7. Voluntariness: TPC 15.04(c)
a. Renunciation is not voluntary if it is motivated in whole or in
part:
i. By circumstances not present or apparent at the
inception of the actor’s course of conduct that increase
the probability of detection or apprehension or that make
more difficult the accomplishment of the objective; or
ii. By a decisions to postpone the criminal conduct until
another time or to transfer the criminal act to another but
similar objective or victim.
ii. Gurwell v. Texas (to catch a predator)
1. F: ∆ charged with the completed offense of online solicitation of a
minor. He planned to meet up with the girl online and was arrested at
the park where they were supposed to meet. ∆ claims he renounced
intent when he said he just wanted to start out by meeting to see where
it goes.
2. R: The renunciation defense under TPC 15.04 applies only to Chapter
15 Inchoate offenses. If ∆ is charged with the actual crime, it is not an
offense to that crime.
a. Solicitation to commit Murder 🡪 Renunciation
b. Attempted Murder🡪 Renunciation
c. Conspiracy to Commit Murder🡪 Renunciation
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d. Murder 🡪 No Renunciation
3. Online Solicitation of a Minor 🡪 No Renunciation
a. NOTE: TPC 33.021: Solicitation of a Minor
b. Don’t be tricked here! Yes, solicitation is in the title but this is a
completed offense under the TPC.
4. R: Renunciation must be complete and voluntary, and ∆ must thwart
the success of the conspiracy.
a. Here, the offense was complete before ∆ claims he renounced
the offense.
iii. New Jersey v. Hughes
1. ∆ was not entitled to the jury instruction on renunciation because he
claimed he was not part of the conspiracy.
a. State = What was there to renounce???
b. ∆ = Well, I was convicted of Conspiracy!
2. Rule: Renunciation is an affirmative defense. “∆ could not renounce a
conspiracy he had not joined.”
a. Meaning that you first have to say “Yes, I did agree to be part of
the conspiracy, BUT I later withdrew from the conspiracy and
tried to stop it from happening.”
l. Merger
i. Majority (and Texas) view: Can punish both conspiracy and the completed
act.
ii. Minority view (State v. Hardison): Cannot punish both unless the conspiracy
embraced criminal objectives in addition to the offense proven.
m. Culpability of Co-conspirators
i. Pinkerton v. United States – (IRS violations)
1. Rule: The commission of the substantive offense and a conspiracy to
commit it are separate and distinct offenses.
2. Rule: A conviction for the conspiracy may be had though the
substantive offense was completed. (it’s not double jeopardy)
3. Rule: The overt act of one partner in crime is attributable to all.
4. Rule: Each member of the conspiracy is criminally responsible for
crimes committed by another of the co-conspirators if it was done in
furtherance of the conspiracy and a reasonably foreseeable and
natural consequence of the unlawful agreement
5. Pinkerton Methodology
a. Multiple Actors/Potential Defendants?
b. Conspiracy to Commit a Felony?
c. During Commission, another Felony committed by one of the
people involved?
d. No intent required!
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e. Other felony committed in furtherance of the original felony?
f. Other felony should have been anticipated/was foreseeable
result of the original felony?
i. At SOME point the other felony will be arguably too
removed.
g. All are responsible/guilty of other Felony!
6. TPC 7.02(b) – Pinkerton Rule
a. If, in the attempt to carry out a conspiracy to commit one
felony, another felony is committed by one of the conspirators,
all conspirators are guilty of the felony actually committed,
though having no intent to commit it, if the offense was
committed in furtherance of the unlawful purpose and was one
that should have been anticipated as a result of the carrying out
of the conspiracy.
ii. Everritt v. Georgia (murder to cover arson)
1. F: ∆ conspired with McDuffie and Cox to burn down his building to get
the insurance money. After, McDuffie killed Cox to keep him quiet. ∆
was convicted of the murder.
2. R: Conspirators are liable when the felony committed is a natural
consequence of the conspiracy and is reasonably foreseeable.
3. H: The court said that the murder of Cox could not be reasonably
foreseen as a necessary, probable consequence of the conspiracy to
commit arson. (remember the Pinkerton Rule!)
4. Everything said, written, or done by any of the conspirators in
execution or furtherance of the common purpose is deemed to have
been said, done, or written by each of them
a. Also responsible for collateral acts incident to and growing out
of the orig purpose
Chapter 8 Summary
● Major Themes:
o Change from Common Law: At common law, the presence or
absence of “malice aforethought” was the distinguishing factor
between murder (requiring malice) and manslaughter (no malice).
That distinction tends to remain true today. But a number of
additional, statutory homicide offenses also exist in every
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jurisdiction, criminalizing both the intentional and unintentional
killings. Unintentional killings are typically treated as less heinous
homicide crimes and are punished less severely; intentional killings
are typically treated and punished as the most culpable kinds of
homicides.
o Nature of Homicide Offenses: All homicide offenses require proof
of a killing act (actus reus) committed by the accused which caused
the death of a human being. The key distinction between the various
homicide crimes is the different mens rea required to establish each
separate statutory offense. Typically, the more difficult the mens
rea is to prove, the more serious the homicide offense.
● Murder: All murder requires a showing of malice. Premeditated murder,
sometimes termed murder in the first degree, is an intentional killing that
also requires proof of premeditated, willful and deliberate conduct on the
part of the accused.
● Malice: Malic is wickedness of disposition, hardness of heart, wanton
conduct, cruelty, recklessness of consequences, and/or a mind without
regard to social duty. It is the distinguishing factor between murder and
manslaughter in most jurisdictions. Express or Implied (extreme
indifference to the value of human life)
● Premeditation and Deliberation: Some jurisdictions require proof of
sustained and meaningful deliberation to establish this element, while
others require proof only of momentary reflection.
● Voluntary Manslaughter: Voluntary manslaughter is mitigated murder.
Defendant found to have been reasonably provoked and to have acted in
the heat of passion, or because the defendant honestly believed he or she
needed to kill for protection purposes, but that belief was objectively
unreasonable.
● Felony Murder: Most jurisdictions have enacted a separate felony murder
offense, transferring the necessary intent for murder from the accused
person’s commission of a specified, triggering felony.
● Involuntary Manslaughter: Involuntary manslaughter is an unintentional
killing committed without malice. Most jurisdictions use a gross
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(criminal) negligence mens rea as an element of this offense, but others
use the mens rea of recklessness instead.
● Negligent Homicide: In some jurisdictions where involuntary
manslaughter requires proof of recklessness, there is a lesser offense of
negligent homicide which applies to criminally negligent killings.
XVII. Homicide and Intentional Killings
a. Homicide at Common Law
st
nd
i. Murder (distinguishes 1 and 2
degree)
1. “Malice Aforethought”
2. (1) w/ intent to cause death or sbi;
3. (2) w/ knowledge that action will cause death or sbi;
4. (3) when killing occurred during commission of a felony; or
5. (4) when perpetrator intended to oppose, by force, an officer or justice
of the peace in the performance of his duties
ii. Manslaughter
1. NO “Malice Aforethought”
2.
Everything else…
3. Reckless/Negligent
b. Intentional Killing
i. Murder by Degrees
1. Common Law: focuses on “premeditation” or “deliberation.”
2. MPC & TPC: focuses on mens rea. (TX takes impulse into acct for
sentencing only)
a. TPC Homicide
i. 19.01. Types of Criminal Homicide
1. Homicide can be committed w/ scope of culpable
mental states: intentionally, knowingly,
recklessly, or negligently.
2. Which mental state and a variety of other factors
determines the category.
ii. 19.02. Murder
st
1. 1 Degree Murder
2. (b)(1): intentionally or knowingly
3. (b)(2): intends serious bodily injury and act clearly
dangerous to human life
st
4. Felony Murder (1 degree)
5. (b)(3)
nd
6. Voluntary Manslaughter (2
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degree)
7. Definitions of adequate cause and sudden passion
(a)(1) & (2)
8. Affirmative defense
iii. 19.03. Capital Murder
1. Combination of a 19.02(b)(1) murder + an
aggravating factor listed in 19.03(a)
2. (b) this is a capital felony – punishable by death
st
3. (c) lesser included offense option (like 1 degree
murder, voluntary manslaughter, etc.)
iv. 19.04. Manslaughter (2nd degree)
1. (a) Recklessly causes the death (not related to
sudden passion or adequate cause)
v. 19.05. Criminally Negligent Homicide
1. (a) Causes death by criminal negligence
2. (b) state jail felony
3. State v. Ramirez (a firm handshake)
a. After firm hand shake at his girlfriend’s townhome, Ramirez
put a gun in David’s ribs and threatened him. Later Ramirez
saw David’s brother (who looked like David) on the street.
Ramirez greeted the brother and then shot him three times.
Ramirez was convicted of 1st degree murder.
b. The jury instruction only required the jury to find that there was
a “length of time to permit reflection” before the killing, but not
that there was “actual reflection.”
c. Majority: “[T]he first degree murder statute has never been
aimed at those who had time to reflect but did not; it has been
aimed at those who actually reflected—and then murdered.”
i. Premeditation can be proven by circumstantial evidence.
d. Dissent: Took the “no time is too short” approach.
i. Other states have taken this view as well. This focuses on
the fact that you can form the thought in an instant (but it
does blur the line between premeditation and
instantaneous action).
ii. Premeditation v. Impulse
1. Premeditation is usually proven through circumstantial evidence.
a. Lapse of time
b. Comments
c. Previous interactions
d. Planning
e. Scouting
f. Casing an area
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g. Following a person
h. Bad blood evidence
i.
Note: this list is not exhaustive!
2. “Premeditation can, of course, be proven by circumstantial evidence;
like knowledge or intention, it rarely can be proven by any other
means. The more time ∆ has to reflect, the stronger the inference that
he actually did reflect.” State v. Ramirez.
3. State v. Davis (drinking copiously)
a. F: Drinking copiously; plan to “jack” a car. In the course of the
robbery there is a killing.
b. ∆ says there was no evidence of deliberation (premeditation).
i. This did not succeed because ∆ approached the car with
his handgun out—must have been some deliberation of
the possible use of the gun.
c. R: Deliberation (premeditation) need only be momentary.
4. Time period
a. Some juris say no time of mediation is too short
b. Others say must show actual reflection
iii. Voluntary Manslaughter
1. Mitigated murder.
2. Usually because ∆ is found to have been reasonably provoked (heat of
passion) or because ∆ honestly believed he needed to kill for
protection purposes, but that belief was objectively unreasonable.
3. Heat of Passion/Provocation
a. Massachusetts v. Hinds (Momma’s Boy)
i. R: Voluntary Manslaughter requires reasonable
provocation that would likely produce in an ordinary
person a state of passion, anger, fear, fright, or nervous
excitement as would eclipse his capacity for reflection or
restraint.
1. The jury must be able to infer that a reasonable
person would have become sufficiently provoked
and would not have “cooled off” by the time of the
homicide, and that in fact ∆ was provoked and did
not cool off. (reas pers calm’s down in days’ time)
ii. The provocation must come from the victim.
iii. R: Excessive use of force in self-defense is a separate
mitigating circumstance that may justify a conviction of
voluntary manslaughter.
1. ∆ must first have been entitled to use some force in
self-defense.
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b. Proving Lack of Provocation
i. Prosecution has burden of proving existence of all
elements of crime BARD
1. Must also prove no provocation (provocation =
defense)
ii. Extreme Emotional Disturbance
1. To prove this, burden is on Δ
c. MPC § 210.3. Manslaughter (Heat of Passion)
i. (1) Criminal homicide constitutes manslaughter when:
1. (b) a homicide which would otherwise be murder is
committed under the influence of extreme mental
or emotional disturbance for which there is
reasonable explanation or excuse. The
reasonableness of such explanation or excuse
shall be determined from the viewpoint of a
person in the actor's situation under the
circumstances as he believes them to be.
d. TPC § 19.02(d) Voluntary Manslaughter
(Heat of Passion)
i. (d) At the punishment stage of a trial, the defendant may
raise the issue as to whether he caused the death under
the immediate influence of sudden passion arising from
an adequate cause. If the defendant proves the issue in
the affirmative by a preponderance of the evidence, the
offense is a felony of the second degree.
e. Suprenant v. State (extramarital passion)
i. F: ∆ & V argued about V’s “involvement” with ∆’s friend
and planned to leave him & take the kids – he stabbed her
to death. He had known about the affair, talked w/ family
about it, and they were fighting about it before.
ii. R: Anger alone is not sufficient.
iii. R: Words alone are not sufficient provocation for heat of
passion.
1. Words + actions can be enough
2. Witnessing infidelity can be enough
3. Fighting words might be enough
iv. R: the “impetus to kill” must suddenly arise.
v. R: Heat of passion is an objective test.
4. Imperfect Defense
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a. Arises when ∆ commits an intentional murder when they
honestly, but unreasonably, believe that they are within a legal
defense.
b. State v. Ordway: the “unreasonable but honest belief”
necessary to support the “imperfect right to self-defense
manslaughter” cannot be based upon a psychotic delusion.
XVIII.
Provocation and Unintentional Killings
a. Homicide: Unintentional Killings
i. Unpremeditated Murder
1. State v. Burley (fooling around with a gun)
a. F: ∆ was “fooling around” with his gun, and it went off, killing
his ex-wife.
b. He was charged with second degree murder by causing the
death of his wife recklessly, under circumstances manifesting
an extreme indifference to the value of human life (similar to
recklessness)
c. Jury was warranted in finding ∆ guilty:
i. ∆ was familiar with the operation of the gun
ii. ∆ knew that the gun was loaded
iii. ∆ knew his ex-wife was in the next room
iv. ∆’s BAC was very high
v. ∆ knew the gun was pointed at his wife
vi. The gun required 2 hands to fire
2. Intentional
→
a. Purposely
murder (first degree)
→
b. Heat of Passion
murder (TX)
3. Unintentional
→
a. Recklessly
b. Gross Negligence →
manslaughter (TX)
criminally negligent homicide (TX)
ii. Felony Murder
1. Focus = Proof of the elements of the felony.
a. NOT necessary to prove mental state relating to the murder
b. The intent to commit the homicide is irrelevant if the ∆
intended to commit the felony.
2. Def: Commit homicide in process of committing or attempting to
commit a felonious act
3. Purpose: allows substitute of mens rea for homicide by commission
of other felony
4. Mens Rea
a. Transferred intent/implied malice. See State v. Blair.
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i. State v. Blair (burglary gone bad)
1. F: ∆ broke into home, stole some mary jane,
attempted rape and sexual abuse. Victim was
found dead the next day resulting from COPD,
which was aggravated by the burglary, rape, and
attempted sexual abuse.
2. R: In felony murder, the “requisite culpable mens
rea is established, as a matter of law, by the
defendant’s commission or attempted
commission of the predicate felony.”
3. Note: “a ∆ may be criminally liable for felony
murder even if an accomplice causes the death of
the victim.”
5.
Felonies
a. Some states limit statute applies to certain felonies.
b. Some states have the rule that the triggering felony
c. Texas does not have a list of felonies TPC 19.02(b)(3) but it is
narrowed in scope.
i. Murder/manslaughter/lesser included offenses of
manslaughter not included.
ii. Assault: reckless assault would be excluded BUT
intentional assault would not be.
6. Acquittal
a. If ∆ is acquitted on the underlying felony, a conviction for felony
murder cannot stand because the requirements for felony
murder = proof of the underlying felony + a death that resulted.
7. Policy
a. Reduces the Burden of proof on the state – it doesn’t have to
prove mens rea as to the killing.
b. Deterrence of dangerous/violent felonies
8. TPD 19.02(b)(3): Felony Murder
a. (b) A person commits an offense if he:
b. (3)Commits or attempts to commit a felony, other than
manslaughter, and in the course of and in furtherance of the
commission or attempt, or in immediate flight from the
commission or attempt, he commits or attempts to commit an
act clearly dangerous to human life that causes the death of an
individual.
c. Analysis:
i. Qualifying Felony
ii. Course/Furtherance OR Immediate Flight of Felony
iii. Act Clearly Dangerous
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iv. Act Causes Death
9. Model Penal Code § 210.2 Murder.
a. Except as provided in Section 210.3(1)(b), criminal homicide
constitutes murder when:
b. (b) it is committed recklessly under circumstances manifesting
extreme indifference to the value of human life. Such
recklessness and indifference are presumed if the actor is
engaged or is an accomplice in the commission of, or an
attempt to commit, or flight after committing or attempting to
commit robbery, rape or deviate sexual intercourse by force or
threat of force, arson, burglary, kidnapping or felonious escape.
10. People v. Portillo (licensed escort and the sailor)
a. F: Gruesome rape and murder of licensed escort by sailor.
b. I: When can you charge felony murder after the underlying is
crime is completed?
c. R: The felony continues after the crime itself has been
completed and during the flight afterwards, at least until the
criminal has reached a place of temporary safety.
i. Close proximity in time/immediate flight – essentially
the act is close enough to consider it part of the same
transaction.
d. TPC: “Immediate Flight”
11. Majority Position
a. Agency Approach: co-agents are liable for each other’s actions
when committing a crime
b. i.e.: F1 and F2 commit armed robbery but agree not to shoot
anyone. During robbery, clerk shoots at F1 and kills a store
customer.
i. F1 and F2 not liable for customers death
c. Minority Position: Proximate Cause
i. i.e. “But-For” armed robbery, customer would not have
died
iii. Involuntary Manslaughter
1. Voluntary v. Involuntary MS
a. Voluntary: TPC 19.02(d)
b. Man walks in on wife with another man, charges the man
instantly and suffocates him until he dies.
i. He INTENDS to kill the man, so it is still an
INTENTIONAL murder under 19.02.
ii. BUT the intent was the result of adequate cause and
sudden passion.
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iii. Voluntary but intent arises from AC/SP.
c. Involuntary: TPC 19.04 or TPC 19.05
i. Men are hunting in the woods – as a joke, one shoots into
the wooded area where the other is using the restroom,
hoping to scare him and get a good laugh. Instead, the
bullet hits the man in the woods and he dies.
1. He did not INTEND to kill the man, so not
Voluntary MS under 19.02(d).
2. His culpable mental state could be either Reckless
(19.04) or Negligent (19.05) justifying conviction
for involuntary manslaughter.
d. Analysis:
i. Ask: Did ∆ INTEND to kill the victim?
1. If YES: Ask WHY?
a. If you start listing the reasons and it seems
premeditated, well thought out, etc. it is
st
19.02(b) 1 degree murder.
b. If you start listing the reasons and it seems
the intent arose out of sudden passion and
nd
adequate cause, it is 2
degree voluntary
manslaughter.
2. If NO: Ask What Happened!?
a. If you start listing the facts and it appears
∆was reckless it is 19.04 (Involuntary)
Manslaughter.
b. If you start listing the facts and it appears ∆
was negligent it is 19.05 Negligent Homicide
(or is some jurisdictions, Involuntary
Manslaughter).
e. TPC Involuntary Manslaughter Provisions
i. § 19.04 Manslaughter
1. A person commits an offense if he recklessly
causes the death of an individual.
2. An offense under this section is a felony of the
second degree.
ii. § 19.05 Criminally Negligent Homicide🡪 find more info
on this
1. A person commits an offense if he causes the
death of an individual by criminal negligence.
2. An offense under this section is a state jail felony.
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iii. Note: Texas follows the majority view that manslaughter
= recklessness, but this is not uniform. Some use “gross
negligence.”
Chapter 9 Summary
●
Major Themes:
o Battery: Today, most states codes and courts recognize the validity of
the common law bodily injury battery crime, whereas, the offensive
touching crime is recognized only by a minority. Both types of
battery are treated as simple battery, and most states use additional
elements to punish aggravated battery. The need for a crime to
punish the intentional exposure to HIV has inspired the enactment
of new statutory provisions as well as amendments to expand batter
crimes to cover this conduct.
o
Assault: The crime of assault has expanded over time. The common
law provide only for the crime of attempted battery assault, which
has been expanded in some states to cover defendants who lack the
actual ability but have the apparent ability to commit a battery. The
trend toward expansion was also expressed through the judicial
recognition of the frightening assault crime. Legislatures have
recognized the need for enacting new assault-like crimes, including
reckless endangerment, stalking, and domestic violence crimes.
●
Offensive Touching Battery: This common law crime required the ACTUS
REUS of offensive touching and the MENS REA of criminal negligence.
The MPC and most states have abolished this crime. Some legislatures
have enacted “laser batter” statutes to extend the common law crime to
cover touchings with the intangible substance of a laser.
●
Bodily Injury Battery: This common law crime required the ACTUS REUS
of causing bodily injury and the MENS REA of criminal negligence. The
MPC and many states use the MPC mental states for this crime, along
with broad definitions of bodily injury.
●
Exposure to Life-Threatening Disease: Many states have enacted statutes
to define this crime, some of which are focused specifically on intentional
exposure to the HIV infection. Some states have amended their battery
statutes to achieve the same purpose.
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●
Attempted Battery Assault: This common law crime required the ACTUS
REUS of an attempt, meaning “coming close” to the completion of the
batter crime, by such means as “an offer of violence.” The MENS REA for
attempt is the intent to achieve the result of the completed crime, and
typically this is the intent to commit bodily injury battery.
●
Frightening Assault: This crime was adopted through judicial recognition
by state courts. The elements of this crime resemble those of assault in
tort law, including the ACTUS REUS of frightening conduct and the
MENS REA of the intent to put the victim in fear of receiving bodily
injury. Most states also require the result element of frightened victim.
●
Reckless Endangering: This crime was proposed in the MPC and is used in
many states. The ACTUS REUS is conduct that may place another person
in danger of serious bodily injury and the MENS REA is recklessness.
●
Stalking: This crime has been enacted in many states since 1990. A typical
statute includes the elements of knowingly engaging in a course of
conduct targeted at a specific person which would cause a reasonable
person to fear for his or her personal safety.
●
Domestic Violence: This crime has been enacted in many states since
1977, and its names include “domestic assault,” “domestic battery,” and
“domestic violence.” A typical statute includes the elements of causing
specified harms, such as those prescribed in battery and assault statutes,
against a family or household member.
XIX. Assault and Battery
a. Battery: Offensive Touching
i. Most states abandon ‘offensive touching’ for criminal battery
1. TX has kept statute for offensive touching for battery for criminal and
tort touching
ii. Adams v. Commonwealth (laser pointer)
1. F: ∆ shined laser pointer at officer and caused “heavy irritation.”
2. Touching? The court said there was touching by intangible substance
(without really explaining why/how).
a. Note: usually courts require “particulate matter” for touching
3. See TPC §§ 42.13 and 42.14.
iii. Does Texas deal with laser pointers with statute or caselaw?
1. TPC § 42.13. Use of Laser Pointers: (a) A person commits an offense if
the person knowingly directs a light from a laser pointer at a
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uniformed safety officer, including a peace officer, security guard,
firefighter, emergency medical service worker, or other uniformed
municipal, state, or federal officer.
2. TPC § 42.14. Illumination of Aircraft by Intense Light: (a) A person
commits an offense if:
a. (1) the person intentionally directs a light from
a laser pointer or other light source at an aircraft; and
b. (2) the light has an intensity sufficient to impair the operator's
ability to control the aircraft.
3. TPC § 42.13. Use of Laser Pointers
a. (a) A person commits an offense if the person knowingly
directs a light from a laser pointer at a uniformed safety
officer, including a peace officer, security guard, firefighter,
emergency medical service worker, or other uniformed
municipal, state, or federal officer.
b. (b) In this section, “laser pointer” means a device that emits a
visible light amplified by the stimulated emission of radiation.
c. (c) An offense under this section is a Class C misdemeanor.
4. TPC § 42.14. Illumination of Aircraft by Intense Light
a. (a) A person commits an offense if:
i. (1) the person intentionally directs a light from
a laser pointer or other light source at an aircraft; and
ii. (2) the light has an intensity sufficient to impair the
operator's ability to control the aircraft.
b. (b) It is an affirmative defense to prosecution under this section
that the actor was using the light to send an emergency distress
signal.
c. (c) An offense under this section is a Class C misdemeanor
unless the intensity of the light impairs the operator's ability to
control the aircraft, in which event the offense is a Class A
misdemeanor.
d. (d) If conduct that constitutes an offense under this section also
constitutes an offense under any other law, the actor may be
prosecuted under this section or the other law.
e. (e) In this section, “laser pointer” has the meaning assigned
by Section 42.13.
b. Bodily Injury Battery
i. State v. Gordon (“pale-face pumpkin head”)
1. F: ∆ jumps up and kicks guy in the chest yelling “die pale-face
pumpkin head”. It leaves a red mark on his chest. Court instructs that
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a red mark or bruise on the skin would constitute an impairment of
physical condition, and therefore an injury.
2. R: “Bodily injury” is a fact question for the jury to decide. The jury
instruction basically decided the case for the jury.
a. See TPC definition of “bodily injury” in § 1.07(a)(8).
ii. Aggravated vs. Simple Battery
1. Simple: Misdemeanor
2. Aggravated: requires additional elements; i.e.
a. ‘serious’ bodily injury
b. Use of deadly weapon
c. Mental state for violent felony crime
d. Victim member of specified class
iii. Rare Consent Defense
1. Consent cannot be defined to activities against public policy
c. Exposure to Life-Threatening Disease
i. State v. Richardson
1. F: ∆ knew that he was infected with HIV and had unprotected sex.
2. Does the statute require specific intent?
a. Yes, as the plain language of the statute indicates.
3. Specific intent, as always, can be proven by circumstantial evidence,
but you have to actually show some circumstantial evidence…duh.
d. Attempted Battery Assault
i. People v. Yslas (hatchet man)
1. F: ∆ asked for alcohol and he didn’t receive any so he chased the
victim with a hatchet, threatening her with it.
a. Case applies Common Law Assault & Battery Statute.
2. Issue: Was the assault complete even though the victim ran away and
was not physically harmed?
3. R: “where there is a clear intent to commit violence accompanied by
acts which if not interrupted will be followed by personal injury, the
violence is commenced and the assault is complete”
a. Proximity to the completed crime under Common Law
constituted an attempt.
ii. Knowingly🡪 you know something is going to happen and you do it anyway
iii. Recklessly🡪 you know something, but you more push it out of your mind
(consciously disregarding a substantial and justifiable risk)
iv. Commonwealth v. Henson (shooting blanks)
1. F: ∆ exchanges shots with officer. ∆’s gun had blanks, but he was the
only one that knew that.
2. R: The focus of assault is the outward demonstration of an ability to
harm and a reasonable person’s reaction of fear.
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a. ∆ could not actually fire bullets, BUT he had the apparent ability
to do so then that satisfies the attempted battery assault type
charge.
b. Exhibition of deadly weapon satisfies.
v. Can the risk of harm to others be ∆ pulling the gun on the cops and risking
them firing on you?
1. Attempted Battery Assault mens rea is intent to commit bodily injury
battery.
2. Frightening Assault mens rea is intent to put victim in fear of
receiving bodily injury.
3. Usually this will not meet the mens rea requirement. While it is
possible to think of a situation in which the mens rea would be met, it
would be a very bizarre fact pattern.
a. Cochran says this is far-fetched.
vi. Difference Between “Reckless” and “Knowing”
1. MPC Cmt. (3): Recklessness “resembles acting knowingly in that a
state of awareness is involved, but the awareness is of risk, that is of a
probability less than substantial certainty; the matter is contingent
from the actor’s point of view.”
2. MPC 2.02
a. (b) Knowingly. A person acts knowingly with respect to a
material element of an offense when:
i. (i) if the element involves the nature of his conduct or the
attendant circumstances, he is aware that his conduct is
of that nature or that such circumstances exist; and
ii. (ii) if the element involves a result of his conduct, he is
aware that it is practically certain that his conduct will
cause such a result.
b. (c) Recklessly. A person acts recklessly with respect to a
material element of an offense when he consciously disregards
a substantial and unjustifiable risk that the material element
exists or will result from his conduct. The risk must be of such
a nature and degree that, considering the nature and purpose of
the actor's conduct and the circumstances known to him, its
disregard involves a gross deviation from the standard of
conduct that a law-abiding person would observe in the actor's
situation.
c. Knowing: practically certain. This is much more than reckless.
e. Frightening Assault (result oriented)
i. State v. Riley (officer frightened)
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1. F: ∆ was pulled over, officer approached, trooper saw gun, ∆ moved it
to floor board, and officer was frightened. ∆ is charged with
frightening assault.
a. Here [MPC 211.1(1)(b)]: “Attempts by physical menace to put
another in imminent serious bodily injury.”
b. TPC 22.01(a)(2): Intentionally or knowingly threatening another
with imminent bodily injury.
2. R: Evidence supporting a conviction for assault depends upon all the
surrounding circumstances, including the words spoken, the
appearance and demeanor of the parties, and their conduct in light of
the setting and circumstances.
a. Appearance of ability to harm is all that is required 🡪 Well
founded apprehension.
b. You must analyze the facts/circumstances.
ii. LOOK AT ALL THE SURROUNDING CIRCUMSTANCES🡪 time of day,
size of defendant, etc. 🡪 look at it from victim’s standpoint
iii. Carter v. Commonwealth
1. F: believed Δ had weapon when brought hand out form hiding, across
his body, and outdoor, only to find it was just his finger
a. Convicted under VA law = commit assault against law
enforcement officer engaged in performance of public duties
2. R: Δ need not have the present ability to inflict harm at time of offense
to be guilty of assault
a. enough that created a reasonable apprehension
iv. Reckless Endangerment: any kind of reckless condition that places other
ppl in danger
1. TPC § 22.05
2. TPC § 22.04(1): children
XX.
Stalking
a. State v. Simone (census worker stalker)
i. F: ∆ began to feel that he was in a relationship with the census worker
visiting his home. He begins to stalk her.
ii. R: Evidence giving rise to a reasonable inference that victim actually feared
the defendant, and that fear is reasonable, suffices to satisfy a conviction for
stalking.
iii. The court found that ∆’s conduct would cause a reasonable person to fear for
his/her personal safety
1. Unrelenting phone calls and gifts in light of ∆’s emotional instability
2. ∆ has “serious personal problems” and felt suicidal and out of control
iv. The court found that the victim was actually in fear.
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1. She testified that she did and her physical demeanor seemed like she
was
b. TPC 42.072 Stalking
i. A person commits an offense if the person, on more than one occasion and
pursuant to the same scheme or course of conduct that is directed
specifically at another person, knowingly engages in conduct that:
1. The person knows or reasonably believes the other person will regard
as threatening:
a. Bodily injury or death for the other person.
b. Bodily injury or death for a member of the other person’s
family or household or for an individual with whom the other
person has a dating relationship; or
c. Than an offense will be committed against the other person’s
property.
2. Causes the other person, a member of the other person’s family or
household or for an individual with whom the other person has a
dating relationship to be placed in fear of bodily injury or death or fear
that an offense will be committed against the person’s property; and
3. Would cause a reasonable person to fear:
a. Bodily injury or death for himself or herself;
b. Bodily injury or death for a member of the person’s family or
household or for an individual with whom the person had a
dating relationship; or
c. That an offense will be committed against the person’s
property.
ii. TPC Versions of Stalking
1. (a)(1): You do it knowing it will appear threatening.
2. (a)(2): You do it and it causes fear.
3. (a)(3): What you did would cause a reasonable person to fear.
a. threatening another with imminent bodily injury.
4. R: Evidence supporting a conviction for assault depends upon all the
surrounding circumstances, including the words spoken, the
appearance and demeanor of the parties, and their conduct in light of
the setting and circumstances.
a. Appearance of ability to harm is all that is required🡪
Well-founded apprehension.
b. You must analyze the facts/circumstances.
5. MPC comments say that this was intended to incorporate into the
criminal law the civil notion of assault that applies to a person who
places another in fear of bodily injury, even if the alleged assailant
acts without purpose to carry out the threat. They included this as a
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crime because a threat of immediate battery resulting in
apprehension, even when intended as a bluff, is so likely to result in a
breach of the peace that it should be a punishable offense.
iii. Stalking crimes vary from state to state
1. i.e. contact after telling to cease, course of conduct directed at specific
person and repeated at least twice, fear, fear by reasonable person
rd
2. Modern Trend: fear for his or her safety or of a 3 person, suffer
emotional distress
a. Takes on ‘actual’ fear element
3. Crime is against state
a. Govt doesn’t want ppl engaging in conduct even if don’t cause
actual fear
4. Difficulty in enforcing stalking laws
a. Gather evidence
b. Need enough to establish course of conduct that would cause
reas person to fear for their physical safety
Chapter 10 Summary: Rape and Sexual Assault
● Major Themes:
o Common Law Rape Crime: before the rape reform era, most state
codes and case law used definitions of rape that included the conduct
of sexual intercourse by genital penetration by a man with a woman
not his wife, through the use of force or by threat of force, without the
consent of the victim. The victim’s “utmost resistance” to this act
was required. It was difficult to obtain convictions because of special
evidence rules, jury attitudes toward victims and defendants, and
appellate court reversals of convictions based on
sufficiency-of-the-evidence formulas that reflected lack of
deference to jury fact-finding concerning the credibility of victims
and defendants
o Rape Reforms: the rape reform era began in 1975 with the enactment
of the Michigan rape statute. In the ensuing decades, there were
widespread changes in the law of rape, including the relabeling of
the crime as sexual assault, the redefinition of the elements of the
forcible rape crime, the enactment of crimes involving additional
types of sexual conduct, the enactment of gender neutral statutes,
the abolition of the marital rape exemption, and the abandonment of
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special evidence rules that created barriers to conviction. Appellate
courts began to defer to jury fact-finding on credibility issues, and to
affirm convictions in cases that could not have been prosecuted in
the pre-reform era
● Force, Threat, or Fear: Modern statues and decisions recognize that force
or threat of force are unnecessary for conviction, because rape may be
committed when accomplished by conduct creating fear of bodily injury
when there is evidence that the victim’s fear is genuine and reasonable
● Lack of Consent: When lack of consent is an element of rape, modern
courts recognize that it may be expressed through the victim’s words or
conduct, and that evidence of verbal resistance may be sufficient. Where
consent is defined as freely given and affirmative agreement, the absence
of such agreement is evidence of lack of consent.
● Affirmative Defense of Consent: Even when the lack of consent element
is not present in a rape statute, courts may recognize the affirmative
defense of consent. The defendant must have a reasonable belief in such
consent and may bear the burden of persuasion because this affirmative
defense does not negate an element of the crime
● Mens Rea and Mistake of Fact: when lack of consent is an element of the
rape crime, the “mistake of fact as to consent” defense may be recognized
in statute or case law. Courts require the defendant’s mistake to be
reasonable and based on good faith, which means that the mental state of
negligence is required for the lack of consent element. The prosecution
bears the burden of persuasion and must rebut the mistake defense
beyond a reasonable doubt because this defense seeks to negate an
element of the crime.
● Rape by Deception: Some states have enacted statutory definitions of this
crime. But courts continue to define it narrowly to include only cases
where the defendant’s “fraud” caused the victim to be ignorant of the fact
that the defendant performed sexual intercourse upon the victim
● Statutory Rape: Most states use gender-neutral statutes with age-gap
provisions to confer immunity on teenagers who are close in age and
engage in consensual sex. Some states recognize the “mistake of fact as to
age” defense
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● Rape Trauma Syndrome: An expert witness may provide testimony to
describe the behavior of rape victims in order to dispel the
misconceptions of jurors about such behavior, and in order to rehabilitate
a rape victim’s credibility when defense counsel argues that the victim’s
behavior is not consistent with the claim of rape
● Rape Shield Laws: These laws create general prohibitions on the
admission of evidence regarding prior sexual conduct of the victim in rape
prosecutions, with exceptions made for particular types of evidence that is
deemed to be probative concerning the elements of the crime
c. Common Law Rape
i. Capital offense.
ii. “an act of genital penetration through sexual intercourse, by a man with a
woman not his wife, through the use of force or by threat of force, without
the consent of the victim.”
iii. V must resist “to the utmost”
iv. V must report crime promptly
v. Must have corroborating evidence
vi. Can offer evidence of sexual reputation/prior experiences
d. Rape and Sexual Assault TPC Provisions
i. TPC 22.011 Sexual Assault
ii. TPC 22.021 Aggravated Sexual Assault
iii. TPC 22.011(b) Consent
1. Consent looks at nature of the act of the Defendant.
e. TPC 22.011 Sexual Assault
i. A person commits an offense if the person:
1. Intentionally or knowingly:
a. Causes the penetration of the anus or sexual organ of another
person by any means, without consent.
b. Causes the penetration of the mouth of another person by the
sexual organ of the actor, without consent.
c. Causes the sexual organ of another person, without that
person’s consent, to contact or penetrate the mouth, anus, or
sexual organ of another, including the actor; or
2. Intentionally or knowingly: (Child Rape)
ii. A sexual assault under Subsection (a)(1) is without the consent of the other
person if:
1. The actor compels another person to submit or participate by the use
of physical force or violence;
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2. The actor compels the other person to submit or participate by
threatening to use force or violence against the other person, and the
other person believes that the actor has the present ability to execute
the threat;
3. The other person has not consented and the actor knows the other
person is unconscious or physically unable to resist;
4. The actor knows that as a result of mental disease or defect the other
person is at the time of the sexual assault incapable either of
appraising the nature of the act or resisting it;
5. The other person has not consented and the actor knows the other
person is unaware that the sexual assault is occurring;
6. The actor has intentionally impaired the other person’s power to
appraise or control the other person’s conduct by administering any
substance without the other person’s knowledge;
7. The actor compels the other person to submit or participate by
threatening to use force of violence against any person, and the other
person believes that the actor has the ability to execute the threat;
[like (2) but any person]
8. The actor is a public servant who coerces the other person to submit or
participate;
9. The actor is a mental health services provider or a health care services
provider who causes the other person, who is a patient or former
patient of the actor, to submit or participate by exploiting the other
person’s emotional dependency on the actor;
10. The actor is a clergyman who causes the other person to submit to
participate by exploiting the other person’s emotional dependency on
the clergyman and the clergyman’s profession character as a spiritual
advisor; or
11. The actor is an employee of a facility where the other person is a
resident, unless the employee and the resident are formally or
informally married to each other.
iii. TPC 22.021 Aggravated Sexual Assault
1. (1) Covers all of the options set forth in 22.011(a) if:
a. (A)
i. Causes serious bodily injury in same criminal episode
ii. By acts or words places the victim in fear that any person
will become the victim of kidnapping, death, serious
bodily injury, etc.
iii. By acts or words occurring in the presence of the victim
threatens to cause any person become the victim of
kidnapping, death, serious bodily injury, etc.
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iv. Use or exhibits a deadly weapon
v. Acts in concert with another
vi. Gives the victim a drug
b. (B) The victim is younger than 14, or
c. (C) The victim is an elderly individual or a disabled individual.
iv. TPC 1.07(17) “Deadly weapon” means:
1. (A) a firearm or anything manifestly designed, made, or adapted for
the purpose of inflicting death or serious bodily injury; or
2. (B) anything that in the manner of its use or intended use is capable of
causing death or serious bodily injury.
v. TPC 1.07(46) “Serious bodily injury” means bodily injury that creates a
substantial risk of death or that causes death, serious permanent
disfigurement, or protracted loss or impairment of the function of any
bodily member or organ.
f. Forcible Rape
i. Force at Common Law
1. Shown by the “utmost resistance.”
a. So that judges were persuaded that ∆’s use of “force” was
sufficiently harmful to justify conviction and that V’s claim of
rape was credible
2. Without such proof of resistance, judges could view the use of “force”
to accomplish sexual intercourse as an ambiguous event that could be
characterized as “seduction” rather than “rape.”
ii. People v. Iniguez (fear requirement)
1. F: V was asleep in the living room. ∆, naked, pulled down her pants
and had nonconsensual intercourse. V did not resist. She said she
froze.
a. ∆ concedes there was lack of consent (he thought she was
asleep) but argues that the element of force/fear was absent.
2. I: Was there sufficient evidence of force or reasonable fear of
imminent bodily injury?
3. R: “Evidence if fear is now directly linked to the overbearing of a
victim’s will.”
a. Fear can be demonstrated by this type of reaction.
b. Objective and Subjective Fear
i. Objective: Would the reasonable person be afraid?
ii. Reasonable person would fear a drunk, naked man
hovering over her would be afraid.
c. Subjective Fear: Was this person afraid?
i. Evidence of what she told officer; what the friend said
about her reactions; her reactions.
d. Resistance NOT Required
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i. She didn’t have to yell out according to new statutes.
ii. Yelling could have increased danger.
iii. Definitions of Force
1. Force as threat that overcomes will to resist
a. Force may exist without violence. If the acts and threats of ∆
were reasonably calculated to create in the mind of the
V—having due regard to the circumstances in which she was
placed—a real apprehension, due fear of imminent bodily harm,
serious enough to impair or overcome her will to resist, then
such acts and threats are the equivalent of force.
b. Much like fear theory.
2. Force as Psychological Pressure
a. An act that coerces the V to submit by threatening to use force
of violence on the V.
b. May consist of the imposition of psychological pressure upon a
person who, under all of the circumstances, is vulnerable and
susceptible to such pressure.
3. Force as the Act of Penetration
a. Any amount of force that results in “offensive touching.”
b. Does not require some amount of force in addition to the act of
penetration.
g. Lack of Consent
i. Taken out of rape statute in most states
ii. State v. Koperski
1. R: Consent is relevant to guilt or innocence, regardless of whether
consent is an essential element of the statute. This is because the state
must prove force or threat of force, to which consent is highly
applicable.
a. If there is evidence of consent, it is an affirmative defense; the
burden is placed on Defendant.
b. Instruction on affirmative defense of consent should be given
when evidence is produced that, under the circumstances,
could reasonably be viewed by a jury as indicating an
affirmative and freely given consent to the sexual contact.
i. Focus: Accused’s conduct.
ii. Affirmative and freely given consent.
c. TPC: Element of the offense is “without consent” – thus the
burden is on the State to prove that consent was not present.
2. H: It was error to deny the instruction – there was enough evidence in
the record such that the instruction was warranted
h. Mens Rea and Mistake of Fact
i. Majority of states recognize possibility of mistake of fact as a defense
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1. Most states say there has to be substantial evidence of consent to give
jury instruction of defense
i.
Rape by Deception
i. Suliveres v. Commonwealth
1. F: D entered room of brother’s GF and pretended to be the brother –
she didn’t notice and they had sex.
a. Statute: “Whoever has sexual intercourse or unnatural sexual
intercourse with a person and compels such person to submit
by force and against his will, or compels such person to submit
by threat of bodily injury, shall be punished.”
2. R: Sex by deception does not fit under sexual assault/rape statutes
because the statute was not intended to extend to fraud or deceit.
j.
Rape of Drugged or Intoxicated Victim
i. Affirmative defense of consent not available when victim “incapable of
giving consent”
k. Statutory Rape
i. Typically defines as strict liability crime
1. 1/3 states now endorse mistake of fact as to age
ii. In Re G.T.
1. R: Statutory rape is “inapplicable in cases where the alleged
perpetrator is also a victim under the age of consent.”
a. “We seriously doubt that the Legislature intended to label a
juvenile under sixteen years who engages in a sexual act a child
abuser for life.”
2. But remember Romeo and Juliet Statutes!
a. TPC §22.011(e) “It is an affirmative defense to prosecution that
the actor was not more than three years older than the victim
and the victim was a child of 14 years of age or older.”
3.
l. Evidence Rules for Rape Prosecutions
i. State v. Kinney
1. I: Should expert testimony about rape trauma syndrome be
admissible? Yes.
a. “The jury may be at a loss to understand the behavior of a rape
victim.”
b. “Expert evidence of rape trauma syndrome and the associated
typical behavior of rape victims is admissible to assist the jury
in evaluating the evidence.”
2. “We do not, however, have the same view of the expert’s testimony
about the incidence of false reporting by rape victims . . . The jury
could infer from her testimony that the scientific studies have shown
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that almost no woman falsely claims to have been raped and convict
defendant on that basis.”
a. Ask yourself whether the jury could convict ∆ “because he ‘fit
the mold’ and not because of the evidence,” or whether “the
expert testimony was tantamount to an expert opinion that the
victim was telling the truth and [therefore] invalidates the
proper role of the jury.”
XXI. Theft Crimes
Chapter 11 Summary
● Major Themes:
o Influence of MPC: The MPC has had a major influence on theft law
and most states have enacted versions of the simplified MPC
elements of the old common law crimes
o Mens Rea & Actus Reus: Virtually all definitions of theft crimes
require specific intent, such as the intent or purpose to deprive
another of his or her property. The concept of possession is a key
element of defining the actus reus for all theft crimes except
burglary
● Property Subject to Theft: Modern statutes often follow the approach of
the MPC in defining property as “anything of value,” but more limited
definitions may be used to serve a particular purpose
● Larceny: This crime was designed by English judges and requires a
trespassory taking and carrying away of property from the possession of
another, without consent, with the intent to steal, which means the intent
to deprive the owner permanently thereof
● Larceny by Trick: This version of larceny applies where the trespassory
taking occurs by means of false representations that lead the owner to
pass only possession of the property, not the title
● Embezzlement: This crime was designed by Parliament and requires the
fraudulent conversion of the property of another by an entrusted person in
lawful possession who has the intent to steal and the intent to convert the
property to his or her own benefit
● False Pretenses: This crime was designed by Parliament and requires the
owner to pass title to property through reliance on false representation
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● Receiving Stolen Property: This crime was designed by Parliament and
requires the act of receiving property which is stolen, knowing that it is
stolen, with the intent to deprive the owner of it
● Robbery & Carjacking: This crime was designed by English judges and
requires all the elements of larceny, plus two more, namely taking from
the person or presence of the victim, by means of force or putting in fear of
violence. The federal carjacking statute uses robbery elements plus the
intent to cause serious bodily harm
● Burglary: This crime was designed by English judges and requires the
breaking and entering of a dwelling at night time with the intent to
commit a felony therein
a. Theft Crimes
i. Property Subject to Theft
1. United States v. Farraj (Trial Plan)
a. F: ∆ emailed Trial Plan to FBI agent posing as the opposing
party.
b. R: “Reading a tangibility requirement into the definition of
‘goods, ware, or merchandise’ might unduly restrict the scope
of the section, especially in the modern technological age.”
i. “If the information in the text file had been printed out
the the transfer would clearly constitute transfer of
‘goods, wares, or merchandise. This court sees no reason
to hold differently simply because ∆ stored the
information inside a computer.”
c. Look at whether it has value!
ii. Larceny & Embezzlement (Theft by Unlawful Taking)
1. Larceny
a. Common Law Larceny
i. Trespassory taking and carrying away of the personal
property of another with the intent to permanently
deprive the possessor of the property.
b. “Custody” v. “Possession”
i. A person has “possession” of property when he has
sufficient control over it to use it in a reasonably
unrestricted manner.
1. Can be actual or constructive.
ii. A person has mere “custody” of property if he has
physical control over it, but his right to use it is
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substantially restricted by the person in constructive
possession of the property.
c. Analysis
i. Determine who initially had possession of the property
that was allegedly stolen, and then decide whether,
when, and to whom “possession” transferred.
ii. If the person charged with larceny did obtain possession
from another, the issue will be whether such possession
occurred trespassorily or lawfully.
iii. For larceny, ∆ must not have possession of the property.
If he has possession, then it will be embezzlement.
d. United States v. Mafnas
i. F: ∆ employed by armed car service. ∆ opened BoA bags
and removed money.
ii. ∆ says that he was a bailee and that the contract between
BoA and service resulted in service having lawful
possession and not custody over bags.
iii. R: when the bailee-carrier was given possession of a
bale, but not its contents, and pilfered the entire bale, he
was not guilty of larceny; but when he broke open the
bale and took a portion or all of the contents, he was
guilty of larceny because his taking was trespassory and
it was from the constructive possession of another.
iv. Larceny conviction affirmed.
e. ∆ in physical control of prop has “custody” if:
i. Has temporary and extremely limited authorization to
use property
ii. Received the property from his employer for use in the
employment relation
iii. Is a bailee of goods enclosed in a container
iv. Obtained the property by fraud.
2. Embezzlement
a. Def: takes property before gets to owner
b. Batin v. State
i. F: ∆ was a slot mechanic for a Casino. His job included
fixing jammed coins and refilling the hopper. He had no
duties with respect to the paper currency and was not to
touch it.
ii. R: In order to be guilty of embezzlement, ∆ must have
been entrusted with lawful possession of the property
prior to its conversion.
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iii. R: possession may be actual or constructive.
iv. Constructive possession: both the power and the
intention at a given time to exercise dominion or control
over a thing, either directly or through another person.
v. H: ∆ had absolutely no power to exercise control over the
currency, and therefore, cannot be convicted of
embezzlement.
vi. The prosecutor should have charged ∆ with larceny
instead of embezzlement.
iii. False Pretenses (Theft by deception)
1. People v. Traster
a. R: “To establish the crime of theft by false pretenses, the
prosecution was required to prove that the theft was
accomplished in that the alleged victim parted with money or
property intending to transfer ownership thereof.”
i. “The presence or absence of evidence of this element of
transferring ‘ownership’ or ‘title’ distinguishes the crime
of theft by false pretenses from the crime of larceny by
trick.’
b. H: V provided ∆ with money for the express purpose of
purchasing Microsoft licenses and for no other reason.
i. ∆ should have been charged with larceny by trick
c. H: ∆ did not gain possession of property.
d. Hint:
i. If ∆ obtains possession of prop for a specific or special
purpose, the owner does not relinquish title and the
crime committed is larceny by trick.
ii. If the owner of the prop gives the prop to ∆ intending ∆ to
become the unconditional and unrestricted owner then
the crime is theft by false pretenses.
iv. Receiving Stolen Property
1. State v. McCoy
a. F: ∆ put his hands on the car as he was getting ready to enter the
car. As soon as he put his hands on the car, a police officer told
him to stop.
b. I: Is this sufficient evidence to support a conviction for receipt
of a stolen automobile?
c. R: Possession can be actual or constructive.
d. “Constructive possession exists when a person intentionally
obtains a measure of control or dominion over the stolen goods
although they are under the physical control of another.”
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i. Note: “possession may be exercised jointly by two or
more persons.”
e. R: “An inference of possession may arise from a passenger’s
presence in a stolen automobile when that presence is coupled
with additional evidence:
i. (1) the passenger knew the driver,
ii. (2) knew the vehicle was stolen, and
iii. (3) intended to use the vehicle for his or her own benefit
and enjoyment.
f. Need dominance or control in terms of possession. Just
standing by a car that ∆ knows is stolen is not enough.
g. H: “The facts reveal nothing more than that he had placed his
hands on the automobile with the intent to ride around in it,
knowing the driver and knowing that the automobile was
stolen.”
i. This is insufficient evidence
2. People v. Land
a. Other factors to look at for possession:
i. Strong evidence of ∆’s knowledge that the car is stolen
ii. ∆’s close relationship to the driver or thief
iii. Driver’s use of the car for carrying out a “joint criminal
enterprise” with ∆
v. Robbery & Carjacking
1. United States v. Lake
a. F: ∆ put a gun close to victim’s head and told her to give him her
keys to her car. He went up the path to her car. She hesitated
because she was scared and then she followed him. She
reached the parking area in time to see ∆ driving her car away
but not soon enough to stop him.
b. Statute: ∆
i. (1) with intent to cause death or serious bodily harm
ii. (2) took a motor vehicle
iii. (3) that had been transported, shipped, or received in
interstate or foreign commerce
iv. (4) from the person or presence of another
v. (5) by force and violence or intimidation
c. H: “a rational jury could have found that [the victim] could have
prevented the taking of her car if she had not been fearful that ∆
would shoot or otherwise harm her.”
2. TPC §29.02: Robbery
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a. (a) A person commits an offense if, in the course of committing
theft as defined in Chapter 31 and with intent to obtain or
maintain control of the property, he:
i. (1) intentionally, knowingly, or recklessly causes bodily
injury to another; or
ii. (2) intentionally or knowingly threatens or places
another in fear of imminent bodily injury or death.
vi. Burglary
1. In the Matter of T.J.E.
a. F: 11 yr old girl went to the store with her aunt and took and ate a
piece of candy.
b. Burglary statute: Any person who enters or remains in an
occupied structure with intent to commit any crime therein.”
c. H: No proof that ∆ entered with the intent to commit a crime
inside.
d. The word “remains” means to unlawfully remain in a
structure.
XXII. Justification Defenses
Chapter 12 Summary
● Major Themes:
o Influence of the MPC: The MPC made a significant contribution in
clarifying the elements of the justification defenses and in
influencing the codification of those elements. The MPC endorsed
some rules that continue to attract support from a majority of states,
such as the duty to retreat
o Modern Expansion of Defenses: There has been notable legislative
expansion of the right to use deadly force in situations where
self-defense would not be justified, specifically concerning the right
to use such force against intruders into a dwelling or a vehicle. The
use of expert testimony concerning the effects of battering has
become a widespread norm for trials of battered criminal
defendants, and self0defense claims by such defendants continues
to test the limitations imposed by the traditional requirements of
self-defense
● Self-Defense: This defense requires a person to have a reasonable belief
that the use of deadly force is necessary in order to avoid the imminent
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threat of deadly force from another person. An aggressor who is the first
to use deadly force against another person will lose the right of
self-defense unless the aggressor withdraws from the conflict. Most
states require the duty to retreat in public spaces, and the castle doctrine
protects a person from the need to retreat in his or her dwelling from an
intruder and sometimes from a cohabitant
● Imperfect Self-Defense: Some courts define this defense as being
applicable to a case where a defendant is unreasonable in his or her
perception of imminent danger, or in his or her belief that deadly force is
necessary to respond to the danger, or both
● Defense of Dwelling: This defense traditionally required a reasonable
belief that an intruder threatened harm to the occupants of a dwelling, but
new statutory rights to use deadly force have modified or eliminated this
requirement
● Necessity or Choice of Evils: The all-purpose MPC definition of this
defense requires that a person must believe that the violation of a law is
required in order to avoid a greater evil, assuming that the evil avoided is
greater than the one sought to be prevented by the enforcement of the law.
Courts sometimes rely on “factor tests” to delineate the scope of a
necessity defense for a particular category of recurring claims.
a. Self-Defense
i. Common Law Self-Defense
1. Deadly force may be used against an aggressor who threatened deadly
force IF defensive use of deadly force was necessary because of the
imminent threat of death or great bodily harm that was posed by the
aggressor’s conduct.
i. Looked at subjective belief, not objectively reasonable
ii. TPC § 9.31: Self-Defense
1. (a) a person is justified in using force against another when and to the
degree the actor reasonably believes the force is immediately
necessary to protect the actor against the other's use or attempted use
of unlawful force. The actor's belief that the force was immediately
necessary as described by this subsection is presumed to be
reasonable if the actor:
(1) knew or had reason to believe that the person against whom
the force was used:
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(A) unlawfully and with force entered, or was attempting to
enter unlawfully and with force, the actor's occupied
habitation, vehicle, or place of business or employment;
(2) did not provoke the person against whom the force was used;
and
(3) was not otherwise engaged in criminal activity, other than a
Class C misdemeanor that is a violation of a law or ordinance
regulating traffic at the time the force was used.
iii. Necessity and Duty to Retreat
1. Common Law Necessity and Duty to Retreat
a. ∆ had to retreat before resorting to deadly force.
2. Brown v. United States
a. R: If a man reasonably believes that he is in immediate danger
of death or grievous bodily harm from his assailant he may
stand his ground and that if he kills him he has not exceeded
the bounds of lawful self-defense.
3. TPC § 9.31 (no duty to retreat)
a. (e) A person who has a right to be present at the location where
the force is used, who has not provoked the person against
whom the force is used, and who is not engaged in criminal
activity at the time the force is used is not required to retreat
before using force as described by this section.
b. (f) For purposes of Subsection (a), in determining whether an
actor described by Subsection (e) reasonably believed that the
use of force was necessary, a finder of fact may not consider
whether the actor failed to retreat.
iv. Reasonable Belief & Imperfect Self-Defense
1. Perfect Self-Defense
a. ∆ not the aggressor
b. ∆ believed that he was in immediate and imminent danger
(subjective element)
c. Subjective
d. ∆’s belief was reasonable
i. Objective
e. ∆ used no more force than was necessary
2. Imperfect Self-Defense
a. ∆’s belief as to immediate and imminent danger was NOT
reasonable
b. Effect is to negate mens rea for murder, so conviction for
voluntary manslaughter is possible.
c. Taking out the objective element
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3. State v. Marr
a. Requested Instructions: “In determining whether ∆’s conduct
was reasonable under the circumstances, you should judge his
conduct by the facts as you believe they appeared to him. A
belief which may be unreasonable to a calm mind may be
actually and reasonably held under the circumstances as they
appeared to ∆ at the time of the incident.”
i. Yea you have to take everything into account… but these
instructions kind of blurred the line between objective
and subjective
ii. Jury could be confused by “as you believe they appeared
to him”
b. R: A person’s beliefs are founded upon their sensory and
ideational perception of the situation and is shaded by their
knowledge/perception of surrounding events. The fact that a
∆’s perception is incorrect does not necessarily make it
unreasonable—a jury has to determine the reasonableness of ∆’s
conduct in light of his reasonable, though erroneous
perception.
c. H: Here, the requested jury instructions would have blurred the
distinction between perfect and imperfect defenses. The jury
could find a ∆’s belief to be reasonable when the cognitive
perception leasing to that belief is wholly unreasonable.
d. Have to make sure that subjective and objective are kept
separate
e. For subjective, have to look at all the facts leading up to that
point
v. Battered Defendants
1. Bechtel v. State
a. 1. Admissibility of Testimony
i. “Misconceptions regarding battered women abound,
making it more likely than not that the average juror will
draw from his or her own experience or common myths,
which may lead to a wholly incorrect conclusion.”
ii. Because the testimony is scientifically accepted and will
help the jury determine reasonableness and imminence,
it will be admitted.
b. 2. Reasonableness
i. The court takes out the objective element, so only the
subjective element is left.
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1. Note: this is what the court in the previous case
said was not ok.
c. 3. Imminence
i. Battered women have a greater familiarity with the
batterer. They are in a better position to know when there
is a danger.
1. They know more than a reasonable person would
know
vi. TPC § 9.33 – Defense of Third Person
A person is justified in using force or deadly force against another to
protect a third person if:
(1) under the circumstances as the actor reasonably believes them to
be, the actor would be justified under Section 9.31 or 9.32 in using
force or deadly force to protect himself against the unlawful force or
unlawful deadly force he reasonably believes to be threatening the
third person he seeks to protect; and
(2) the actor reasonably believes that his intervention is
immediately necessary to protect the third person.
1. State v. Anderson
a. An “occupant” is anyone legally inside the dwelling, and not
just the legal residents of the dwelling.
b. R: includes residents & guests legally inside
c. H: lead to silly results if it was only a legal resident and not
someone that had permission to be there (babysitter, etc.)
vii. Necessity or Choice of Evils Defense
1. Necessity Elements
a. There must be a situation of emergency arising without fault on
the part of the actor concerned,
b. This emergency must be so imminent and compelling as to
raise a reasonable expectation of harm, either directly to the
actor or upon those he was protecting,
c. This emergency must present no reasonable opportunity to
avoid the injury without doing the criminal act, and
d. The injury impending from the emergency must be of
sufficient seriousness to out measure the criminal wrong.
2. TPC § 9.22
a. Conduct is justified if:
i. (1) the actor reasonably believes the conduct is
immediately necessary to avoid imminent harm;
ii. (2) the desirability and urgency of avoiding the harm
clearly outweigh, according to ordinary standards of
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reasonableness, the harm sought to be prevented by the
law proscribing the conduct; and
iii. (3) a legislative purpose to exclude the justification
claimed for the conduct does not otherwise plainly
appear.
3. MPC is basically the same.
Chapter 13 Summary
● Major Themes:
o Duress: The duress defense recognizes the non-blameworthy
character of a person’s criminal act when that act is coerced by a
threat of immediate serious bodily harm. The common law requires
that an immediate and inescapable threat, typically of serious bodily
harm, must have provided the source of the duress that led to the
commission of the crime.
o Insanity: All but a very few states define legal insanity as a condition
that exists when, because of a mental disease or defect, a person
lacks the capacity to know that his conduct was wrong. Ever since the
M’Naghten decision in 1847, there has been continual judicial and
legislative debate over the question whether additional definitions of
insanity are needed. Today, a large minority of states define insanity
to include a person who lacks the capacity to conform his or her
conduct to the requirements of the law. An even larger minority of
states make the defense available to a person who does not know the
nature and quality of his or her conduct.
● Justification vs. Excuse: Like justification defenses, excuses are general
defenses applicable to all offenses and available even though the person’s
conduct satisfies the elements of an offense. However, excuse defenses
focus on the person’s lack of subjective blameworthiness. Even though an
act may cause or threaten a harm the criminal law normally would
punish, an excuse defense applies when a person’s characteristics or
situation suggests that he or she does not merit criminal liability.
● Defense of Duress: The defense of duress arises when an individual is
faced with a threat of death or serious bodily injury, and chooses to
commit a crime rather than suffer the threatened consequences. In
general, the individual must have a reasonable belief that the threat is
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serious, and there must be no reasonable means of escape. As a general
rule, duress is not a defense to an intentional murder. However, the MPC
permits the defense in any situation when an individual is faced with
threat “which a person of reasonable firmness in his situation would have
been unable to resist.”
● Insanity: There is little justification for punishing those who commit
crimes while insane. As the Second Circuit stated: “Those who are
substantially unable to restrain their conduct are, by definition,
undeterrable and their ‘punishment’ is no example for others; those who
are unaware of or do not appreciate the nature and quality of their actions
can hardly be expected rationally to weigh the consequences of their
conduct. Finally, what segment of society can feel its desire for
retribution satisfied when it wreaks vengeance upon the incompetent?
Although an understandable emotion, a need for retribution can never be
permitted in a civilized society to degenerate into a sadistic for of
revenge.”
● Test for Insanity: Although there is general agreement that the insane
should not be criminally responsible for their conduct, few agree about
how to define insanity. For many years, U.S. courts applied the insanity
test articulated by the House of Lards in nineteenth century in
M’Naghten’s Case. Because of dissatisfaction with the M’Naghten and
irresistible impulse tests, the courts and the American Law Institute
developed alternative tests. The Court applied a test focusing on whether
the unlawful act “was the product of mental disease or mental defect.”
Section 4.01 of the MPC provides that “A person is not responsible for
criminal conduct if at the time of such conduct as a result of mental
disease or defect he lacks substantial capacity either to appreciate the
wrongfulness of his conduct or to conform his conduct to the
requirements of law.”
● Insanity and the Criminal Process: Insanity can be relevant at three
different points in the criminal process. First, as in M’Naghten,
individuals who commit criminal acts while insane cannot be convicted of
those acts. Second, defendants who are insane at the time of their trials
cannot be tried, and will be committed until they are sane enough to
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proceed. The defendant must “[have] rational understanding—[and have] a
rational as well as factual understanding of the proceedings against him.”
Finally, defendants sentenced to capital punishment cannot be executed
until they regain their sanity.
● Infancy and Capacity: The question, in some cases, is whether the age of a
juvenile affects his capacity to commit a crime. At one point, the law
relied on age-based assumptions regarding capacity. Later decisions
applied the M’Naghten test. Some modern decisions rely on
circumstantial factors which suggest that the defendant does, or does not,
have capacity.
XXIII.
Excuses
a. Justifications focus on conduct; Excuses focus on Δ’s lack subjective
blameworthiness
b. Duress: faced with threat of death or serious bodily injury
i. US v. Contento-Pachon
1. Duress Elements:
a. (1) an immediate threat of death or serious bodily injury,
b. (2) a well-grounded fear that the threat will be carried out, and
c. (3) no reasonable opportunity to escape the threatened harm.
d. (sometimes 4) ∆ must submit to proper authorities after
attaining a position of safety.
2. Immediacy: some evidence that the threat of injury was present,
immediate, or impending
a. A veiled threat of future unspecified harm will not satisfy this
requirement.
b. Here:
i. Jorge was deeply involved in the exportation of illegal
substances.
ii. Large sums of money were at stake.
iii. Jorge had found out that ∆ was married and had children,
their names, and where he lived.
iv. ∆ said that if he had refused to cooperate, the
consequences would have been immediate and harsh.
c. ∆ was going to be watched at all times.
d. These are not vague threats of possible future harm.
3. Escapability: ∆ must show that he had no reasonable opportunity to
escape.
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a. Here: District Ct said that because ∆ was not physically
restrained before he swallowed the balloons, he could have
sought help from police or fled.
i. Seeking help:
1. ∆ said he could not seek help because the
authorities were corrupt.
ii. Fleeing:
1. Rule: the opportunity to escape must be
reasonable.
iii. It might not be reasonable to pack up his wife and kid and
travel to a place beyond the reaches of the drug
traffickers.
b. H: It should have been left to the jury to decide.
4. Surrender to Authorities
a. For prison escape cases only.
i. Because in all other cases it will be the same as the third
element.
b. Must intend to turn himself in to the authorities upon reaching
a point of safety.
5. Necessity defense
a. Available when a person is faced with a choice of two evils and
must then decide whether to commit a crime or an alternative
act that constitutes a greater evil.
b. Coercion from physical forces in nature. 🡪 act of God
c. Negates mens rea🡪 Has to be a voluntary act
6. Duress
a. coercion by human force.
b. No actus reus
7. F: Columbian guy asked to smuggle cocaine in his stomach
a. Threats against family, believed police in Columbia and
Panama were corrupt
b. Customs x-rayed his stomach
8. R: Duress Elements:
a. Immediacy
b. Fear
c. No opportunity to escape
9. I: Was threat really immediate/imminent
10. H: Yes
ii. TPC uses imminent!
c. TPC § 8.05. Duress
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i. (a) It is an affirmative defense to prosecution that the actor engaged in the
proscribed conduct because he was compelled to do so by threat of
imminent death or serious bodily injury to himself or another.
ii. (b) In a prosecution for an offense that does not constitute a felony, it is an
affirmative defense to prosecution that the actor engaged in the proscribed
conduct because he was compelled to do so by force or threat of force.
iii. (c) Compulsion within the meaning of this section exists only if the force or
threat of force would render a person of reasonable firmness incapable of
resisting the pressure.
iv. (d) The defense provided by this section is unavailable if the actor
intentionally, knowingly, or recklessly placed himself in a situation in
which it was probable that he would be subjected to compulsion.
v. (e) It is no defense that a person acted at the command or persuasion of his
spouse, unless he acted under compulsion that would establish a defense
under this section.
d. TPC § 9.22. Necessity
i. Conduct is justified if:
1. (1) the actor reasonably believes the conduct is immediately
necessary to avoid imminent harm;
2. (2) the desirability and urgency of avoiding the harm clearly outweigh,
according to ordinary standards of reasonableness, the harm sought
to be prevented by the law proscribing the conduct; and
3. (3) a legislative purpose to exclude the justification claimed for the
conduct does not otherwise plainly appear.
e. Insanity
i. M’Naghten (starting point)🡪 did he know right from wrong?
1. M’Naghten Test for Insanity🡪 used by TX for adults
a. At the time of the act, ∆ was laboring under such a defect of
reason, arising from a disease of the mind, that:
i. (1) ∆ did not know the nature and quality of the act that he
was doing, (cognitive) or
ii. (2) if he did know, he did not know that what he was doing
was wrong (moral)
1. i.e., ∆ did not know the difference between right
and wrong
2. Have to have disease of the mind so as not to understand
3. Elements: Did Δ know
a. What he/she was doing?
i. If “NO”🡪 acquittal
b. If “YES”🡪 did D know what he/she was doing was wrong?
i. If “NO”🡪 acquittal
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ii. If “YES”🡪 not insane
ii. Irresistible Impulse Test
1. If yes to both🡪 if D not able to control behavior, it might be a defense
2. Another inquiry besides M’Naghten
iii. Clark v. Arizona
1. First Issue: Whether Arizona may eliminate one of the prongs of the
M’Naghten test
a. (i.e. use only the moral incapacity prong test for insanity)
b. Yes, cognitive incapacity is a sufficient condition for
establishing a defense of insanity, but it is not necessary to
satisfy due process.
i. If reality testing is lacking, but moral reasoning remains
intact, you’re sane.
ii. If mental disease or defect hinders ability to recognize
the act as wrong, only then are you sane.
2. Second Issue: Whether Arizona violated due process by prohibiting
expert testimony about a ∆’s mental incapacity owing to a disease or
defect.
a. It is up to the states to restrict expert testimony on insanity, and
it is not a due process violation.
3. Taken cognitive out of the question from previous test
4. Now, just whether the Δ knew right from wrong
a. If you lack this, you necessarily lack the first part
5. Don’t hold criminally responsible if insane
a. Guilty as a result of mental disease or defect🡪 committed to
institution
b. Sometimes incarcerated for as long/longer than if they were
criminally responsible
6. Still a legal wrong
iv. US v. Freeman
1. Failure of M’Naghten rule is it does not permit the jury to identify
those who can distinguish between good and evil and who cannot
control their behavior
2. Durham Formula: Δ not responsible if act was response of mental
disease or defect
v. ALI/MPC Test🡪 used by TX for juveniles
Person not responsible for their criminal conduct if:
1. (1) At the time of the conduct in question
2. (2) As a result of mental disease or defect
3. (3) ∆ lacked substantial capacity to either:
a. Appreciate the wrongfulness of their conduct, or
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b. To conform their conduct to the requirements of the law.
vi. PROCEDURE
1. D has to notify in writing that they are going to use insanity defense🡪
initiates investigation
2. If D doesn’t claim it, they are not entitled to a jury instruction
3. Don’t have to plead it if they don’t want to🡪 D entitled to select defense
a. Some exceptions🡪 CANNOT SUPPORT PURGERY IF YOU
KNOW THEY AREN’T INSANE
vii. Abolition of Defense
1. D must be competent enough to assist in defense
a. Can’t go to trial if not competent🡪 goes to treatment facility
viii. Medication
1. Generally allowed to forego treatment
2. If not competent without meds, might still not be able to stand trial
a. If we sedate too much, could be just as bad
ix. Self-Representation
1. Can prevent this if they are not competent
x. Texas
1. Trial judge cannot be forced to plead insanity over Δ’s objection
2. Has not guilty by reason of insanity
3. Constitution allows court to forcibly administer psychotropic drugs
but only if side effects don’t effect ability to assist defense at trial
a. Must inform jury of condition
4. Applies M’Naghten rule to adults and ALI to juveniles
a. When apply M’Naghten → mention ‘legal wrong’
xi. Lay Witnesses
1. Opinion of lay witnesses sufficiently acquainted w/person involved
and has observed conduct is admissible as to the sanity of the
individual
xii. Acquittal by insanity = indefinite commitment to mental institution
xiii. Medical Treatment: Δ entitled to treatment, but not necessarily to release
xiv. Infancy
1. Def: lack of moral responsibility or capacity
2. Common law: rule of 7’s
a. 0-7: w/o criminal responsibility
b. 7-14: rebuttable criminal capacity
c. 14+: fully responsible
3. Sliding Scale of Diminished Capacity
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