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Criminal Law Outline
Table of Contents
Actus Reus……………………..…..1
Mens Rea…………………..……….7
Mistake of Fact……………12
Mistake of Law……………15
Homicide……………………………20
Intentional Killing……….21
Unintentional Killings….26
Attempts…………………………….38
Mens Rea……………………38
Actus Reus………………….40
Complicity………………………….42
Natural & Probable…….46
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I. Actus Reus
A. Voluntary Act Requirement
1. The commission of some voluntary act that is prohibited by law
a) An action produced by one’s willful effort, either consciously or habitually
b) Fundamental policy consideration is not to punish for thoughts alone
(1) Cogitationis poenam nemo patitur - no one is punishable solely for his
thoughts
(a) System cannot enter mind/heart and can therefore only punish
what it can know
(b) All of mankind would be criminals
(c) administrability of thoughts- intent vs. wish
(d) Cannot be deterred by law
c) Always required by criminal liability
d) Even where the actions/circumstances of the statutory definition are met, no
criminal liability where no voluntary act
e) Voluntary is not = blameworthy
(1) Voluntary necessary, not sufficient to be held liable for crime
f) Voluntary Act must be some part of the basis of liability
(1) Entering a building = voluntary act in burglary
(2) Pointing a gun at someone (even with no intention to shoot) = voluntary
act for depraved heart murder
2. Common Law Rule
a) Only must include some voluntary act that is part of the basis of liability
3. Involuntary Act
a) An act done by the muscle without any control by the mind
(1) Not involuntary simply because the doer does not remember it, nor
because actor could not control impulse to do so
4. Voluntary vs. Involuntary Acts Examples
a) Habitual action done without thought = voluntary
b) Hypnosis = not voluntary (per the MPC) (usually not codified)
c) somnambulism/ sleepwalking = not voluntary
5. Cases:
a) Martin v. State (Voluntary Act)
(1) Voluntarily used profane language and drank, but was not voluntarily in
public when doing so. Cops took him outside, D was charged with public
intoxication.
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(2) Holding: Not guilty because he was unwillingly taken outside so the act
of being drunk in public was not a voluntary act committed by D.
b) Jones v. City of LA(Voluntary Act)
(1) Homeless man sleeps on the street.
(a) Striking down as a violation of the Eight Amendment's bar
against punishing status rather than conduct a city ordinance
that states that "no person shall sit, lie or sleep in or upon any
street, sidewalk or public way"
(2) A state may not criminalize “being”, or criminalizing a person for who
they are rather than what they have done
c) People v. Newton(Voluntary Act)
(1) Struggle with police, D stole officer’s gun and shot him. D claimed not
voluntary because had no gun, only when officer struck himremembered nothing until waking up in hospital (corroborated by
medical fact)
(2) Unconsciousness defense: complete defense to charge of criminal
homicide
(a) Can exist where subject physically acts, but no conscious of
acting
B. Omissions
1. Criminal law does not impose liability based on omission without duty
a) MPC 2.01: unless a penal statute specifically requires an action to be
performed, criminal liability only arises for omission when torts/other law
imposes a duty to act
b) Reason that it is only where other legal duties exist is because of common law
philosophy over action/inaction
(1) Impossible to set criteria
(2) Liberty
2. Policy
a) John Kleinig, Good Samaritanism
(1) “The law does not compel active benevolence between man and man. It
is left to one’s conscience whether he shall be the good Samaritan or
not.”
3. MPC §2.01(3)
a) Recognizing liability for an omission only when “a duty to perform the omitted
act is otherwise imposed by law”
4. Homicides
a) In omission cases, are usually involuntary manslaughter (no intent to kill)
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(1) Could be murder if knowingly risking death, or intentionally withholding
aid
b) Charge is brought if one knows that an omission will or is likely to cause the
death of another
(1) Commonwealth v. Pestinikas
5. Act vs. Omission
a) Generally, act/omission are defined by whether the subject/actor interfered
with the causal chain
(1) Similar to but not exactly like factual cause
b) Cause is a very philosophical term
(1) Under legal doctrines, the omission, even if we believe it is a “cause”
would not satisfy the requirements of omission doctrine
(2) Even if all elements of the crime are satisfied, still a requirement of
omission in language of statute in order to convict, unless there is an
independent duty
(a) Ex: homicide = causing death of another, thus if omission =
cause, omission = homicide, but this does not satisfy omission
rule requiring explicit enumeration of omission to convict
(unless legal duty exists, like parents to children)
6. Duty to Act
a) Where a statute imposes a duty to care for another
b) Where one stands in a certain status relationship to another
(a) Parents & minor children
(i) Includes mothers in relationship with abusive male
where kids are abused (incentivizes leaving relationship)
(b) Spouses
(2) Not imputed
(a) Siblings
(b) Parents & adult children
(c) Adult children & parents
c) Where one has assumed a contractual duty to care for another
d) Where one has voluntarily assumed the care of another and so secluded the
helpless person as to prevent others from rendering aid (similar to undertaking
doctrine from torts)
7. Special Duties
a) Family Members
(1) Parents have a duty to aid and protect their minor children
(2) Spouses have a duty to each other
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(3) Duties are not automatically imposed on siblings to aid one another, or
on parents to adult children, or on adult children to their parents (even if
the parents are unable to care for themselves)
(a) Some states require a duty to care for adult children who are
“wholly dependant”
b) De Facto Family Members
(1) People v. Beardsley(Duty to Family/Special Duties)
(a) Beardsley was having an affair with a woman. The woman took
too much morphine and OD’d. Beardsley did not call for help
and she died.
(b) Holding: He was not found liable.
(c) Main Point: Fucking somehow, a girlfriend (or affair) is not de
facto family and you can just let them die.
(i) If all relationships (sexual) were found to inspire duty,
why not all relationships that are not sexual? Thus, just
marriage.
(2) People v. Carroll(Duty to Family/Special Duties)
(a) Stepmother failed to protect step child and court ruled she had
a duty to do so
(b) Main Point: “A person who acts as the functional equivalent of
a parent in a familial or household setting is… legally
responsible for the child’s care.”
(3) State v. Miranda(Duty to Family/Special Duties)
(a) Some states expand the above rule to anyone who assumes a
parent-like role while residing with a child and has “substantial
responsibility for such necessities as food, shelter, and
protection.”
c) Source of Peril
(1) Creates a duty when:
(a) One’s actions endanger another (create the peril) then they
have a duty to prevent the peril from resulting in harm
8. Possession
a) Typically, one must be aware they are in possession of something to be held
liable (AKA omitted to dispose of it)
b) MPC §2.01(4)
(1) Possession can satisfy actus reus requirement of §2.01(1) only when the
accused “was aware of his control [of the thing possessed] for a
sufficient period to have been able to terminate his possession.”
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c) State v. Bradshaw (Possession)
(1) Possession charge upheld when no evidence truck driver was aware of
hidden drugs (possession is a strict liability statute)
(2) Fucked up bro
9. Misprision
a) Misprision- deliberate concealment of a criminal act witnessed
b) Mostly abolished
c) Exists primarily as misdemeanor in certain professions required to report
suspected child abuse
(1) Also applies to elder abuse, domestic violence, environmental crimes,
and certain financial crimes
10. Cases:
a) Jones v. United States (1962) pp. 234-35 (Parent-Like Assumption of Duty)
(1) Guy lets baby die that he was tasked with caring for (disputed?)
(2) Four situations in which failure to act may constitute breach of a legal
duty
(a) Where a statute imposes a duty to care for another
(b) Where one stands in a certain status relationship to another
(c) Where one has assumed a contractual duty to care for another
(d) Where one has voluntarily assumed the care of another and so
secluded the helpless person as to prevent others from
rendering aid
b) Barber v. Superior Court (Medical Duty/ Special Relationship)
(1) Physicians charged with murder for taking patient off life support (with
consent from family) because euthanasia not allowed in California
(2) Stopping life support counts as an omission (a failure to provide support)
(a) Omission of treatment
(3) Holding: no duty to continue treatment once it is futile to do so
(a) Cannot actively kill patient, only withhold future treatment
(4) Main Point: “A physician has no duty to continue treatment, once it has
proved to be ineffective. Although there may be a duty to provide
life-sustaining machinery in the immediate aftermath of a
cardio-respiratory arrest, there is no duty to continue its use once it has
become futile in the opinion of qualified medical personnel…”
c) Airedale NHS Trust v. Bland (Medical Duty/ Special Relationship)
(1) Same outcome as above but in England.
(2) Doctors may withhold treatment, but cannot actively kill a patient.
(3) An interloper who shuts off the machines is liable
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(a) Whereas a doctor is allowing a patient to die of the original
condition, the interloper is actively intervening in the efforts of
the doctor to prolong life.
d) Pope v. State (1979) pp. 236-38 (General Duty/Omission)
(1) Mom beats her kid and a woman watches. Kid dies. Woman is the
defendant
(2) Case of “Misprision” – The duty to report
(a) Mostly abolished
(3) A person may be convicted of the felony of child abuse created by §35A
as a principal in the first degree upon evidence legally sufficient to
establish that the person
(a) (1) Was (a) the parent of, or (b) the adoptive parent of, or (c) in
loco parentise to, or (d) responsible for the supervision of a
minor child under the age of 18 years, AND
(b) (2) caused, by being in some manner accountable for, by the
act of commission or omission, abuse to the child in the form of
(a) physical injury or injuries sustained by the child as a result of
(i) cruel or inhumane treatment, or (ii) malicious act or acts by
such person…
(4) The second part is satisfied by the omission of the woman to protect the
child, the question lies in whether she in under the class of people
covered by the statute. This relies on whether she is responsible for the
supervision of the child.
(a) This requires Pope to have essentially taken on the role of a
parent, even in the short time the child was present.
(b) The court believes that since the mother was also present, this
may be going too far.
(5) Holding: Pope had a moral obligation to help the child but not a legal
one under this statute. (The court believes the assembly has failed here
and the law is bad (should add either omission to statute or make a
duty).
(6) Main Point: Had the statute been different and not required classes of
actors, under omission doctrine alone, D would have been guilty.
(a) Statutes are the law.
II. Mens Rea
A. Common Law
1. Malicious, wicked, pretty undefined
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a) Culpable
b) Mens rea can only apply when intent to commit harm or reckless disregard of
possibility of committing harm
2. Scienter = Mens rea
3. Cases
a) Regina v. Cunningham (1956) pp. 260-62(what is “malicious”)
(1) D stole gas meter, unintentionally and unknowingly releasing gas that
escaped to Victim apartment, endangering her life: the statute
concerned defined the mens rea as “maliciously causing to be
administered..”
(2) Conviction quashed for bad jury instructions for bad definition of
“maliciously”
(a) Malicious not equal to wicked
(b) Meant a culpable/bad mental state
b) Regina v. Faulkner p. 262(Specific Mens Rea)
(1) Sailor stealing rum from a boat lit a match for light, caused the entire
boat to burn down
(2) Holding: No mens rea for arson, only for crime of theft
(3) Main Point: Must have mens rea satisfactory for the specific crime being
charged
c) State v. Hazelwood (1997) pp. 268-69 (Lower Standards of Mens Rea)
(1) D was captain of the Exxon Valdez oil tanker, negligently ran aground
boat causing 11 million gallons of oil to be spilled into the ocean,
prosecuted under statute making illegal causing discharge of oil into
ocean. D claimed statute required proof of criminal negligence (higher
standard)
(2) Holding: Simple negligence standard was allowed, because promotes
deterrence for oil tanker captains to assume higher care with ship
(3) Main Point: Where society benefits from a lower standard for criminal
prosecution (negligence vs. gross negligence), the mens rea can be lower
d) Santillanes v. New Mexico (1993) pp. 269-70 (Statutorily Undefined Mens Rea)
(1) D, when playing with 7 year old nephew, accidentally cut his nephew’s
neck with a knife. D convicted for child abuse. D was negligent but not
criminally negligent.
(2) Holding: Conviction for child abuse requires criminal negligence because
only want to punish conduct that is morally culpable
(3) Main Point: Typically, statutes satisfied by negligence mens rea require
criminal negligence not ordinary negligence
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e) Elonis v. United States (2015) pp. 270-72(Statutorily Undefined Mens Rea)
(1) D threatened to kill his ex-wife over the internet, but without recognition
of the threatening nature of the communication. Charged with criminal
threat transmitted through interstate commerce. Statute had no mens
rea requirement.
(2) Holding: Jury instruction premised on how threats would be understood
to a reasonable person is not proper, because mens rea focuses on what
the defendant thinks- still requires proof of mens rea even when statute
does not specify mens rea requirement
B. MPC Approach
1. MPC 2.02(1)- except as provided in 2.05, a person is not guilty of an offense unless
she acted purposely, knowingly, recklessly, or negligently, as the law may require, with
respect to each material element of the offense
2. MPC 2.02(2)- Kinds of Culpability Defined
a) Purposely
(1) If the element involves the nature of his conduct or a result thereof it is
his conscious object to engage in conduct of that nature or to cause such
a result;
(2) If the element involves the attendant circumstances, he is aware of the
existence of such circumstances or he believes or hopes that they exist
b) Knowingly
(1) 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;
(2) 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
c) Recklessly
(1) When he consciously disregards a substantial and unjustifiable risk that
the material element exists or will result from his conduct.
(2) 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
(3) (NOT MPC) Attendant circumstances: if you should know that they exist,
but don’t actively pursue your knowledge of them
d) Negligently
(1) When he should be aware of a substantial and unjustifiable risk that the
material element exists or will result from his conduct.
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(2) The risk must be of such a nature and degree that the actor’s failure to
perceive it, considering the nature and purpose of his conduct and the
circumstances known to him, involves a gross deviation from the
standard of care that a reasonable person would observe in the actor’s
situation
3. MPC 2.02(3)- Culpability Required Unless Otherwise Provided
a) When the culpability sufficient to establish a material element of an offense is
not prescribed by law, such element is established if a person acts purposely,
knowingly, or recklessly with respect thereto
4. MPC 2.02(4)- Prescribed Culpability Requirement Applies to All Material Elements
a) When the law defining an offense prescribes the kind of culpability that is
sufficient for the commission of an offense, without distinguishing among the
material elements thereof, such provision shall apply to all the material
elements of the offense, unless a contrary purpose plainly appears
5. MPC 2.02(5)- Substitutes for Negligence, Recklessness, and Knowledge
6.
7.
8.
9.
a) When the law provides that negligence suffices to establish an element of an
offense, such element also is established if a person acts purposely, knowingly
or recklessly. When recklessness suffices to establish an element, such element
also is established if a person acts purposely or knowingly. When acting
knowingly suffices to establish an element, such element also is established if a
person acts purposely.
MPC 2.02(6)- Requirement of Purpose Satisfied if Purpose is Conditional
a) When a particular purpose is an element of an offense, the element is
established although such purpose is conditional, unless the condition
negatives the harm or evil sought to be prevented by the law defining the
offense
MPC 2.02(7)- Requirement of Knowledge Satisfied by Knowledge of High Probability
a) When knowledge of the existence of a particular fact is an element of an
offense, such knowledge is established if a person is aware of a high probability
of its existence, unless he actually believes that it does not exist
MPC 2.02(8)- Requirement of Wilfulness Satisfied by Acting Knowingly
a) A requirement that an offense be committed wilfully is satisfied if a person acts
knowingly with respect to the material elements of the offense, unless a
purpose to impose further requirements appears
MPC 2.02(9)- Culpability as to Illegality of Conduct
a) Neither knowledge nor recklessness or negligence as to whether conduct
constitutes an offense or as to the existence, meaning or application of the law
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determining the elements of an offense is an element of such offense, unless
the definition of the offense or the Code so provides
10. MPC 2.02(10)- Culpability as Determinant of Grade of Offense
a) When the grade or degree of an offense depends on whether the offense is
committed purposely, knowingly, recklessly, or negligently, its grade or degree
shall be the lowest for which the determinative kind of culpability is established
with respect to any material element of the offense.
11. Cases
a) United States v. Jewell (1976) pp. 280-82 (put in by emma!)
Willful blindness can satisfy knowledge if:
1.
Majority approach: if lack of knowledge is solely because of a
conscious purpose to avoid the truth, this is sufficient for knowledge regardless
of probability (Jewell)
- D had knowledge when he willfully refused to ascertain for certain that
which he might have suspected
2.
Minority approach: actual subjective belief is required for knowledge,
regardless of probability (dissent Jewell)
In line with MPC 2.02(7)
C. Mistake of Fact
1. Common Law:
a) In a general intent crime, without any specific mens rea, any reasonable
mistake of fact is a defense. In specific intent crimes, any mistake is not a
defense
(1) Specific intent: some higher mens rea, not just intent, is required
(2) Similar to MPC’s discussion of mistake of fact
2. MPC
a) MPC 2.04(2): mistake of ignorance defense is unavailable where the D would
be guilty of another offense had the situation been as supposed. In such case,
however, the ignorance or mistake of D shall reduce the grade and degree of
the offense of which he may be convicted to those of which he would be guilty
had the situation been as he supposed
(1) No need to know that what you are doing is wrong- only need to know
that you are doing the act
(2) MPC approach does not include the lesser crime doctrine- only applies in
sentencing
3. Statutory Rape:
a) In most states, a mistake as to the victim’s age is not a defense for statutory
rape- CA is an exception
4. Lesser Crimes Doctrine
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a) If you have the mens rea for a crime, if you commit a more serious crime, the
mens rea for a lesser crime will suffice to prove the greater offense - common
law only
5. Cases
a) Regina v. Prince (1875) pp. 287-88 (Lesser Crime Doctrine)
(1) <an took unmarried girl who is under 16 from her parents; D says that he
didn't know the girl was 16; court still convicted, TWO approaches to the
conviction
(a) Statutory rape = strict liability w/r/t age; even a "reasonable"
mistake of fact does not provide a defense; rationale linked to
this "lesser wrong" approach
(b) (maj) "Lesser Wrong" doctrine - if D believed he was
committing a "lesser wrong", then mistake of fact still does not
serve as a defense for mens rea as general "badness"
(c) (diss) "Lesser Crime" doctrine - if D believed he was committing
a "lesser crime", then mistake of fact still does not serve as a
defense
(2) Main Point: if the defendant commits an act that is already a crime
(lesser offense), then they are liable for other acts they commit even
with mistake of fact, based on consequences/results of the action
b) People v. Olsen (1984) pp. 294-97(Mistake of Fact)
(1) Court determined the provision in the statute making an honest,
good-faith belief that the victim was of age = eligible for probation was
redundant with a mistake of fact defense
(2) Public Policy: argues not to take away a defense of mistake so that
people are more careful and do not make mistakes. Also so that people
are deterred from crime in general
c) B (a Minor) v. Director of Public Prosecutions Prosecutions (2000) pp. 298-300
(1) 15 years old B (D) was constantly pestering a 13 year old girl for oral sex.
He was charged to court for inciting a child under the age of 14 to
commit gross indecency after the girl refused his demands. An intention
to commit the act with a child under the age of 14 as an element of
crime was not expressly provided for in the statute under which he was
prosecuted
(2) Holding: Objective standard of Regina v. Prince did not apply where
Parliament failed to specify a mens rea req. Instead, court created
“honest belief” mens rea req. in which, if facts were as D believed them
to be, that is the relevant standard for determining liability
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(3) Main Point: “Honest Belief” standard: where D holds honest belief, if
belief true, would negate mens rea, mens rea standard not met
d) Garnett v. State (1993) pp. 300-301
(1) Mentally disabled D had sex with a 13 year old; the law on the books in
Maryland did not require mens rea; was a strict liability standard
(2) Main Point: Legislative intent is paramount! If the legislature does not
include mens rea in the law, the courts should not impute mens rea into
the statute unless there is clear evidence of intent
D. Strict Liability
1. Types of Crimes
a) Malum in se
(1) An act that is wrongful in itself, not just because the law says it is wrong
(moral judgment)
(a) Ex. theft, murder, etc.
(2) Old, carry stiff penalties, severe stigma attached
(3) Typically requires mens rea in common law
b) Malum prohibitum
(1) Only wrong because illegal by statute, not inherently wrongful
(a) Ex. tax evasion, littering, etc.
(2) Relatively recently enacted, statutory, small penalties, relatively lower
stigma, impact public welfare/health/safety/government interest
(3) Most strict liability crimes are malum prohibitum
2. Cases
a) United States v. Balint (1922) pp. 303-304
(1) Ds convicted of selling derivatives of opium and coca leaves (not
inherently illegal) because they did not follow the correct procedure in
selling it (no order form)
(2) Court upheld convictions because found the purpose of the statute was
general/social welfare in the proper handling of narcotics, which not
require mens rea- the law exists so that those handling drugs become
aware of regulations
(a) Weighed possible injustice of innocent perpetrators against
value of the protection to potential victims
(b) Court seems to think that the seller has a better opportunity to
know the facts/investigate than potential victims
(i) Analogous to how product liability operates where seller
is better able to investigate the product than is consumer
b) United States v. Dotterweich (1943) pp. 304-305
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(1) D CEO of drug distributor convicted for company’s sale of products
mislabelled by manufacturer
(2) Court says that mens rea is not required for reasons similar to Balint
(a) The public policy of regulation of drugs is greater than the
possibility of an innocent perpetrator
(b) Analysis of strict liability as a product of the industrial
revolution and modernity
c) Morissette v. United States (1952) pp. 305-309
(1) D was convicted of knowingly converting government property when he
stole old, abandoned bomb casings into the scrap metal market: D
claimed he did not know it was property of the Air Force because he did
not think the Air Force was still exerting property right over it
(a) Conversion in Torts does not require knowledge that it was
anyone else’s property- only not your own property
(b) Issue is not whether he knowingly converted, arg. Is that he did
not know it was property of US (lang. In statute requires
knowledge)
(2) Holding: Court determined the required mens rea was: intent to take
property of the US, which was not met
(3) Distinguishes Balint and Dotterweich because the crime is not a public
welfare offense, since penalty was very high (10 years) and because
nature of the crime was just theft not about protecting
consumers/public
(a) Basically is a malum in se crime, which requires mens rea to
convict
d) Staples v. United States (1994) pp. 309-311
(1) A man was indicted for unlawful possession of an unregistered
machinegun in violation of the National Firearms Act (Act), 26 U.S.C.S. §
5861(d) following the recovery of a weapon from his home. At trial,
petitioner testified that the weapon had never fired automatically when
it was in his possession, and that he was ignorant of the weapon's
automatic firing capability. The district court convicted and sentenced for
the offense, rejecting his contention that § 5861(d) contained a mens rea
requirement
(2) Holding: Silence as to mens rea does not indicate there was legislative
intent not to have a mens rea req. Also severe penalties for violation of
crime suggested mens rea was required. Court held that mens rea would
be satisfied with proof D knew his weapon contained such capability
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(3) Main Point: Offenses that require no mens rea are generally disfavored.
Some indication of legislative intent, express or implied, is required to
dispense with mens rea requirement
E. Mistake of Law
1. Issue of “ignorance of the law is no excuse”
a) A person is aware of the law but misinterprets it or a person does not know
about the law
b) Awareness of the law may be part of a defense
c) Can the defendant claim a defense when his misinterpretation is based on an
official document or official advice that turns out to be incorrect?
(1) Answer: It depends. See below.
2. Mistakes
a) Can be factual or legal
b) Collateral mistake of law
(1) When a misunderstanding as to a particular part of the statute causes a
misunderstanding of the law
(2) Misunderstanding of the definition of income would lead to committing
tax evasion if pay taxes based on that definition
c) Is mens rea required for conduct to be a crime?
(1) Don’t need mens rea as to the existence of a crime, just for the elements
d) Alternatives
(1) One possibility is to allow exceptions where the mistake is reasonable
(a) Oliver Wendell Holmes argument: (incentivizes ignorance)
wouldn’t apply because only if reasonable mistake
3. Scope of Ignorantia Legis Doctrine
a) Damage to Property
(1) Regina v. Smith
(a) A belief that one has the right to do something that they did is
not an excuse where the law does not purport such a right
(b) However, no offense is committed (under this section) if a
person destroys or causes damage to property belonging to
another if he does so in the honest though mistaken belief that
the property is his own.
(i)
Provided that the belief is honestly held it is irrelevant to
consider whether or not it is a justifiable belief.
b) Theft
(1) State v. Varzegi
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(a) A person commits larceny when, with intent to deprive
another of property…, he wrongfully takes, obtains or
withholds such property from an owner… A defendant who
acts under the subjective belief that he has a lawful claim on
property lacks the required felonious intent to steal.
(b) Such a defendant need not show his mistaken claim of right
was reasonable,… so long as he can establish his claim was
made in good faith.
c) Awareness of the Law as an Offense Element
(1) MPC §2.04(1)
(a) “Ignorance or mistake as to a matter of fact or law is a defense
if [it] negatives the purpose, belief, recklessness or negligence
to establish a material element of the offense.”
(2) Yet §2.09 provides
(a) “Neither knowledge nor recklessness or negligence as to
whether conduct constitutes an offense or as to the existence,
meaning or application of the law determining the elements of
an offense is an element of such offense, unless the definition
of the offense or the Code so provides.”
(b) Essentially
(i) If you don’t know the law exists, you are still guilty
d) Wilfully and Knowingly
(1) In general
(a) Sometimes courts hold that “knowledge” or “willfulness”
requires either
(i) awareness of the specific statute at issue, or
(ii) just a more general awareness that the acts committed
are unlawful, or
(iii) even less- merely awareness of what acts were
committed (awareness of the facts)
(2) Cases
(a) U.S. v. International Minerals & Chemical Corp.
(i) A statute made it a crime for a person to “knowingly
violate” a regulation of the Interstate Commerce
Commission.
(ii) The Court held that the actions the defendant knowingly
committed violated the statute and that was sufficient.
(b) Liparota v. U.S.
17
(i)
“Whoever knowingly uses, transfers, acquires…,
coupons or authorization cards in any manner not
authorized by [the statute]” is subject to fine and
imprisonment.
(ii) The Court held that the prosecution must prove the
defendant knew of the existence and meaning of the
relevant regulation
(a) The court was concerned that “to interpret the
statute otherwise would be to criminalize a broad
range of apparently innocent conduct.”
(i) An example is it the statute made it such
that a person could only purchase the
lowest possible priced foods and if they
bought a same product at a different store
that cost more, it would be illegal
(c) U.S. v. Ansaldi
(i) The court held that “Knowledge of, or intent to violate,
the law is simply not an element of” the offense in
question.
(ii) Drug case and distinguished from Cheek
e) Official Reliance
(1) Traditional View
(a) Courts traditionally refuse to consider the defense of mistake of
law when the mistake was based on the assurances of a public
official or the decision of a court
(i) This is because the reasonableness of a defendant’s
mistake is ordinarily irrelevant
(ii) Hopkins v. State
(a) The court held that if an accused could be exempted
by reason of the advice of counsel, then such advice
would become paramount to the law.
(b) Often this case is considered unfair
(2) MPC Approach
(a) There is a limited defense
(b) It advocates for lesser punishment in the face of this defense
(c) Widely Accepted
18
(d) MPC 2.04: the mistake of law defense is allowed when the D
acts in reasonable reliance upon an official statement of the
law, afterward determined to be erroneous; contained in a
statute or other enactment
(i) Could be found erroneous by: struck down as
unconstitutional, overruled by higher court, etc.
(e) MPC 2.04(1): No mens rea because of mistake of law would
mean not guilty
(f) MPC 2.02(9): mistake about the same law (the statute D is
violating) is not a defense
(g) In general: no need to have knowledge of the statute, but still
have mens rea with regard to the act
(3) Due Process Limitations
(a) ​The Supreme Court has sometimes held that it violates due
process to convict for conduct that governmental
representatives, in official capacity, had earlier stated was
lawful.
(i) Raley v. Ohio
(a) A commission said the defendant had a privilege not
to self-incriminate however they did not have such
privilege and got convicted for contempt.
(b) Reversed as a result.
(4) Reasonableness Requirement
(a) The reliance defense is available only when the defendant “acts
in reasonable reliance upon an official statement of the law,
afterward determined to be invalid or erroneous.”
(b) Abertini
(i) Lower court gave permission for action, so defendant did
it again, but the Supreme Court said no. He was
convicted on the first case, but not the second because
he committed the act after the lower court said it was
chill.
4. Cases
a) People v. Marrero (1987) pp. 326-331
(1) D was a federal corrections officer, statute of NY exempted state peace
officers from law banning possession of firearms
(2) Holding: D was not a peace officer within the meaning of the statute
19
(3) Court also rejected D’s argument to include jury instructions that if D
reasonably believed he was a peace officer under the statue he should
be acquitted
(4) Main Point: Mistake of law is not defense traditionally, but the court
holds that where there is a mistake in the law itself, not a
mistake/ignorance as to how it applies to the D- thus, because D was just
mistake that it applied to him, it is no defense
(5) Dissent: if we allowed an exception every time a D thought the law did
not apply to them (exception), there would be a major problem
(a) Anytime a reasonable interpretation of a statute (after the fact)
could lead to guilty criminals going free
b) Cheek v. United States (1991) pp. 336-38
(1) D did not pay income tax because he thought A) that his wages didn’t
count as income for moron sovcit reasons and B) the law was
unconstitutional for similar reasons
(2) Holding: A is a defense, B is not
(3) Note: Court does not include reasonableness in analysis of honest belief
defense because it figures that mens rea requires knowledge regardless
of reasonableness of such belief, only matters if he actually did so
believe
(a) Still says reasonableness of the belief is evidence of whether D
believed it
c) Lambert v. California (Supreme Court) (1957) pp. 344-46
(1) Case where a woman was required to register with the police that she
was a felon upon entering the city of Los Angeles. She was not aware of
the law and did not do so. She was not given an opportunity to comply
and was instead arrested and convicted. This went to the SC which
considered Due Process.
(a) Law in which willfulness was not included
(b) The Defendant was not aware of the statute and was not
permitted to offer evidence of such in the lower court.
(2) The Court looked at this as “wholly passive” conduct in which there was
neither an act nor “failure to act under circumstances that should alert
the doer to the consequences of the deed.”
(3) “Due Process is the requirement of notice.”
(a) This is “required before property interests are disturbed, before
assessments are made, before penalties are assessed.”
20
(b) This is “appropriate where a person, wholly passive and
unaware of any wrongdoing, is brought to the bar of justice for
condemnation in a criminal case.”
(4) Dissent shreds passive active distinction as load bearing analysis–later
cases have also not followed, so what mattered
(5) Main Point: “Where a person did not know of the duty to register and
where there was no proof of the probability of such knowledge, he may
not be convicted consistently with Due Process.”
(a) Essentially, if there is no way one could be aware of a crime and
has no opportunity to learn of it or comply, then this is not
consistent with Due Process
d) Bryant
(1) Public safety regulation is exempt from the above
III. Homicide
A. What is it?
1. The killing of a person by another person
2. Homicide has grades
a) Murder
(1) 1st Degree
(a) 1st degree = murder + aggravating factors
(b) Aggravating factors (vary)
(i) Premeditated & deliberate
(ii) Poison
(iii) Lying in wait
(iv) Enumerated factors
(2) 2nd Degree
b) Manslaughter
3. “Malice aforethought”
a) The distinguishing characteristic of murder
b) It need neither be malicious nor genuinely aforethought
c) Accepted Propositions
(1) ​It is murder if one person kills another with intent to do so, without
provocation or on slight provocation, although there is no premeditation
in the ordinary sense of the word
(2) It is murder if one person is killed by an act intended to kill another
21
(3) It is murder if a person is killed by an act intended to kill, although not
intended to kill any particular individual
(4) It is murder if death results from an act which is intended to do no more
than cause grievous bodily harm
(5) It is murder if one person kills another by an intentional act which he
knows to be likely to kill or to cause grievous bodily harm, although he
may not intend to kill or to cause grievous bodily harm and may either
be recklessly indifferent as to the results of his act or may even desire no
harm should be caused by it.
4. Example Statute (California)
a) §187. Murder Defined
(1) Murder is the unlawful killing of a human being, or a fetus, with malice
aforethought…
b) §188. Malice Defined
(1) Page 446
c) §189. Degrees of Murder
(1) Page 446
(2) Defines first and second degree
(3) “To prove the killing was ‘deliberate and premeditated’ it shall not be
necessary to prove the defendant maturely and meaningfully reflected
upon the gravity of his or her act.”
d) §192. Manslaughter
Manslaughter is the unlawful killing of a human being without malice. It
is of three kinds:
(1) Voluntary – Upon a sudden quarrel or heat of passion.
(2) Involuntary – In the commission of an unlawful act, not amounting to
felony; or in the commission of a lawful act which might produce death,
in an unlawful manner, or without due caution and circumspection. This
subdivision shall not apply to acts committed in the driving of a vehicle.
(3) Vehicular
(4) Page 447
(5) This section shall not be construed as making any homicide in the driving
of a vehicle punishable that is not a proximate result of the commission
of an unlawful act, not amounting to felony, or og the commission of a
lawful act which might produce death, in an unlawful manner.
(6) “Gross negligence,” as used in this section, does not prohibit or preclude
a charge of murder under Section 188 upon facts exhibiting wantonness
and a conscious disregard for life to support a finding of implied malice,
22
or upon facts showing malice, consistent with the holding of the
California Supreme Court in People v. Watson.
B. Intentional Killing
1. Premeditation (1st Degree Murder)
a) Why is premeditation required for intentional killing?
(1) Bullock v. United States: This is meant to reflect a belief that one who
meditates an intent to kill and then deliberately executes it is more
dangerous, more culpable or less capable of reformation than one who
kills on sudden impulse or that the prospect of the death penalty is more
likely to deter men from deliberate than from impulsive murder.
b) Statutory Interpretation
(1) 29 states and D.C. and the federal government currently use the criterion
of “premediation” to identify most serious murders.
(a) 16 jurisdictions hold that it can be satisfied either an instant
before or simultaneously with the act of homicide.
(2) There must be a line preserved before first and second degree murder
c) Proof of Premeditation
(1) Facts regarding the defendant’s behavior prior to the killing that might
indicate a design to take life (“planning” activity)
(2) Facts about the defendant’s prior relationship with the victim that might
indicate a reason to kill (“motive”)
(3) Evidence that “the manner of killing was so particular and exacting that
the defendant must have intentionally killed according to “preconceived
design”
d) Cases
(1) Commonwealth v. Carroll (1963) pp. 452-56
(a) D and his wife had a rocky marriage and argued about a
teaching job that would take D away from the family for
extended times. When she said she would leave him, he took
the gun they kept near the bed and shot her in the head twice.
(b) Rule: There is no specific length of time necessary to manifest
intent to kill.
(i) The defendant was provoked over time and deliberately
shot his wife when he remembered the gun.
(ii) NOTE BY EMMA: equates premeditation with any intent
to kill (professor)
23
(c) Neither a judge nor jury has to believe all or any part of the
testimony of the defendant or of any witness.
(d) Psychiatrists
(i) The opinion of the psychiatrists was based to a large
extent upon statements made to them by the defendant,
which need not be believed and which are in some
instances opposed by the facts themselves.
(ii) A psychiatrist's opinion of a defendant’s impulse or lack
of intent or state of mind is, in this case, entitled to very
little weight, and this is especially so when defendant’s
own actions, or his testimony or confession, or the facts
themselves, belie the opinion
(iii) Policy
(a) “Just as Courts cannot abdicate to the psychiatrists
the task of determining criminal responsibility in
law, so also they cannot remit to psychiatrists the
right to determine the intent or the state of mind of
an accused at the time of the commission of a
homicide…”
(iv) Defendant was found not to be insane.
(2) State v. Guthrie (1995) pp. 456-58
(a) At kitchen D worked at, there was a joking interaction that
escalated. When the victim hit D in the nose with a towel, D
abruptly took out a knife and stabbed him in the neck. He took
time to take off his gloves.
(b) Main Point: Guthrie standard- some period of time to reflect
on intent to kill and commit killing
(i) The Defendant took off his gloves and thus had time to
think about the killing
(ii) “Although premeditation and deliberation are not
measured by any particular period of time, there must
be some period between the formation of the intent to
kill and the actual killing, which indicates… an
opportunity for some reflection on the intention to kill
after it is formed. The accused must kill purposefully
after contemplating the intent to kill.”
2. Provocation
a) Two main approaches
24
(1) Traditional Categories (common law) of provocation:
(a) Adultery (in the act, sudden discovery)
(b) Assault
(c) Assault on family member
(d) Mutual combat
(e) Illegal arrest
(2) Provocation is such that a reasonable person would be compelled to act
on impulse without reflection
(a) Focuses on the passion rather than the reasonableness because
a reasonable person would never kill based on provocation
(b) Evidence of malice aforethought is defense to that element
b) MPC
(1) Replacement of Provocation and the Reasonableness Requirement
(2) Two Approaches
(a) The particular defendant must have “acted under the influence
of extreme emotional disturbance”
(i) Subjective
(a) ​internal situation in which the defendant found
himself and the external circumstances as he
perceived them at the time
(b) And, there must have been a “reasonable explanation or
excuse” for such extreme emotional disturbance.
(i) Objective (primarily)
(a) assessing from that standpoint whether the
explanation or excuse for his emotional disturbance
was reasonable, so as to entitle him to a reduction
of the crime charged… to manslaughter
(3) Elements:
(a) Reasonable provocation
(i) Gravity of provocation vs. self-control
(ii) Understandable human response vs. malevolence
(b) Heat of passion
(i) Acted under “extreme emotional disturbance”
(c) No cooling-off period
(4) MPC: affirmative defense
(a) of provocation exists where the defendant acted under the
influence of extreme emotional disturbance for which there
was a reasonable explanation or excuse
25
(5) MPC has completely done away with malice aforethought, so the right
way to think about provocation is not that it makes malice aforethought
untrue
(a) Homicide that would otherwise be murder, when committed
under extreme emotional disturbance, is not murder
(6) Distinguishing Features of MPC Approach
(a) State v. White
(i) Emotional disturbance need not be at the moment of
the killing (or in this case attempted killing) but can also
be “a significant mental trauma [that] has affected the
defendant’s mind for a substantial period of time,
simmering in the unknowing subconscious and then
inexplicably coming to the fore.”
(b) State v. Elliot
(i) Homicide does not always have a cooling off or “hot
blood” state but can instead be mental trauma for a long
period of time that broods and leads to a violent
reaction.
(7) Reasonable Person Requirement
(a) MPC Solution
(i) The determination of the reasonableness of the
explanation or excuse shall be made “from the viewpoint
of a person in the actor’s situation under the
circumstances as he believes them to be.” §210.3 (I
think)
(a) The word “situation” is meant to be ambiguous and
give flexibility
(ii) Idiosyncratic moral values are not part of the equation
(b) Culture
(i) There are differing views as to whether a different
culture that sees situations differently can be held to a
different reasonability standard
(c) Mental Disorder
(i)
Courts have held that testimony by psychiatrists
regarding mental states that are not insanity is
inadmissible
(d) Individualization
(i)
Age can be a factor
26
c) Cases
(1) Girouard v. State (1991) pp. 462-64
(a) Holding: words do not justify provocation in this case because
of the relative size of D vs. victim, the psychological evidence
was irrelevant (objectively test so eggshell D)
(i) Facts:
(a) No physical danger
(b) Objective test & reasonableness
(c) Words not adequate
(2) Maher v. People (1862) pp. 464-67
(a) D believed his wife and the victim were having an affair.
(b) Main Point: Manslaughter = intentional killing in heat of
passion before sufficient time to cool down has elapsed.
(3) People v. Casassa (1980) pp. 479-483
(a) Main Point: MPC has two principal components to
manslaughter:
(i) Extreme emotional disturbance
(ii) Reasonable explanation or excuse for actions (subj and
obj analysis)
C. Voluntary vs. Involuntary Manslaughter
1. Basic Doctrine - VM
a) When someone kills in the heat of passion, voluntary manslaughter
b) If provocation defense is established, murder is reduced to VM
c) Provocation Defense is not a complete defense to murder, it is a partial
defense; it mitigates the crime to VM and less punishment is received.
2. Elements of Voluntary Manslaughter:
a) Killer acted in the heat of passion (subjective)
b) As a result of a legally adequate provocation (Key Issue, objective)
c) Before sufficient cooling time had elapsed AND (objective)
d) The D had not actually cooled (subjective)
3. Basic Doctrine- IM
a) Actus Reus: IM is an unintentional homicide based on risk created by the
actions of D
b) Required mens rea for Common law jurisdictions:
(1) CL majority: recklessness
(2) CL minority: criminal negligence
c) Required mens rea for MPC jurisdictions
(1) Manslaughter: recklessness
27
D. Unintentional Killing
1. Murder vs. Nonmurder
a) Malice aforethought draws the line between murder and nonmurder
b) Premeditation draws the line between first degree and second degree
(1) Willful, deliberate, and premeditated
c) MPC Approach
(1) MPC 210.2- Unintended killing is murder when committed recklessly (as
defined in 2.02(2)(c)) and “under circumstances manifesting extreme
indifference to the value of human life”
(a) Whether the actor’s conscious disregard of the risk, given the
circumstances of the case, so far departs from acceptable
behavior that it constitutes a “gross deviation from the
standard of conduct that a law-abiding person would observe in
the actor’s situation”
(b) Ordinary recklessness in this sense is made sufficient for a
conviction of manslaughter under Section 210.3(1)(a)
2. General Unintentional Killings
a) Possibilities for Justice:
(1) No liability
(2) Tort liability only
(3) Manslaughter
(4) Murder
b) Reasons:
(1) Depends on circumstances
(2) Awareness of high danger
(3) How gross is the derivation from from the reasonableness standard
(4) Depends on individualized reasonableness
(5) Justifications
c) Purposes of imposing criminal liability
(1) Deterrence
(2) Retributive justice
d) Reasons Against
(1) Over deterrence
(2) Innocent actors
(3) Fairness
e) Gross (criminal) negligence elements:
(1) Grave danger/ high probability of harm
(2) Substantial risk
28
3.
4.
5.
6.
7.
(3) Unjustified
(4) Gross departure from ordinary care
(5) Consciously disregarded risk
Traditional tests
a) Recklessness requires more than gross negligence
(1) Depends on defendant’s specific knowledge or what a reasonable
persons should have known in the circumstances
b) Rex v. Bateman
(1) The jury must find that “the negligence of the accused went beyond a
mere matter of compensation between subjects and showed such
disregard for the life and safety of others as to amount to a crime against
the State and conduct deserving punishment.”
Contributory Negligence
a) NEVER A DEFENSE in criminal cases
MPC Alternative
a) MPC creates two crimes: manslaughter and negligent homicide
(1) This is distinguished by whether the defendant was aware of the
unwarranted risk he was creating.
MPC on individualization
a) “The care that would be exercised by a reasonable person in [the actor’s]
situation.
Policy
a) Pillsbury
(1) Individuals deserve punishment for all acts displaying serious disregard
for the moral worth of other human beings.
b) Holmes
(1) ​The questions… are whether an actual good intent and the expectation
of good results are an absolute justification of acts, however foolhardy
they may be if judged by the external standard supposed…
(2) If this is the rule adopted [in civil Torts] … there would seem to be at
least equal reason for adopting it in the criminal law, which needs to
establish such a standard.
c) Criticism: Williams
(1) The threat of punishment is not very effective because a person would
likely not realize it applies to them.
8. Involuntary Manslaughter
a) Cases
29
(1) Commonwealth v. Welansky (1944) pp. 490-93
(a) Nightclub emergency exit case; D had emergency exits in
obscure places and people died in a fire where the exits
couldn’t be found. He was aware and unbothered by the unsafe
nightclub exit system.
(b) “Grave danger to others must have been apparent and the
defendant must have chosen to run the risk rather than alter
his conduct so as to avoid the act or omission which caused the
harm.” Not an ordinary person standard; D can see things that
ordinary person may not have.
(c) Main Point: The conduct must be intentional; even if D did not
intend the resulting harm, a reasonable person would foresee
risk. In this case, D’s willful, wanton and reckless conduct
amounted to involuntary manslaughter.
(2) People v. Hall (2000) pp. 496-98
(a) Skiing incident in Vail caused a death
(b) Main Point: Reckless manslaughter = a person consciously
disregarded a substantial and unjustifiable risk that death could
result from his actions
(3) State v. Williams (1971) pp. 499-502
(a) Indigenous couple’s 1.5yo son dies after a prolonged struggle
with abscessed, infected tooth and pneumonia. Deals with
objectivity and individualization in criminal negligence.
(b) Main Point: Involuntary manslaughter can be applied where
failure to exercise ordinary caution is the proximate cause of a
death.
9. Depraved Heart Murder
a) Elements:
(1) Malice aforethought
(a) Knowledge that conduct will cause death/likely to cause death
(b) Recklessness manifesting indifference to the value of human
life
(c) Mens rea to commit a felony
(2) Recklessness manifesting indifference to the value of human life
b) Are all three factors necessary?
(1) High Probability of Harm
(2) Justification
30
(3) Awareness
10.
Manslaughter vs. Murder
a) Factors bearing on murder vs. Manslaughter
(1) Magnitude of risk
(a) Probability and severity of harm
(2) Lack of justification
(3) Awareness of risk
b) Same 3 factors are used to distinguish criminal manslaughter/gross negligence
from ordinary/tort negligence
c) Cases
(1) Commonwealth v. Malone (1946) pp. 509-510
(a) D was found guilty of murder2nd degree for the death of his
friend while playing the game of Russian roulette. Malone
declared that he had no intention of harming his friend. D
alleged that the facts did not justify a conviction of any form of
homicide due to lack of motive.
(b) Holding: The court held that the fact that there was no motive
for the homicide did not exculpate D. The killing was murder
with malice because of the reckless disregard for the
consequences of a game of Russian roulette. Malice in the
sense of a wicked disposition was evidenced by the intentional
doing of an uncalled-for act in callous disregard of its likely
harmful effects on others.
(c) Main Point: Reckless disregard for life is sufficient mens rea to
convict for murder
(2) United States v. Fleming (1984) pp. 513-14
(a) D was tried and convicted of second-degree murder. for driving
at an excessive rate of speed, at some points 100 miles per
hour and at times going southbound in the northbound lanes.
A woman driving northbound was killed when her car collided
with D's
(b) Holding: malice aforethought could be and was in this case
shown by conduct which was reckless and wanton and a gross
deviation from a reasonable standard of care and which
warranted the jury's inference that the defendant was aware of
a serious risk of death or serious bodily harm
(c) Main Point: reckless and wanton conduct = murder
31
11. Felony Murder
a) Basic Doctrine, Rationale, and Reforms
(1) Classic Felony Murder Doctrine
(a) Felony + Killing = Murder
(i) Wide scope of felonies and the proximity between felony
and killing
(ii) Long history of restrictions
(iii) Causation requirement
(a) Must be direct causal link between the felony
committed and death of victim
(b) Essentially strict liability for felons committing those crimes
(c) Malice aforethought is satisfied with the intent to commit a
felony
(i) Under traditional meaning of malice aforethought
encompasses the general mens rea created by
commission of a felony
(ii) Under most statutory definitions
(2) Regina v. Serne (1887) pp. 517-520
(a) D set fire to his house trying to get insurance money; D’s wife
and daughters escaped but his sons died in the fire
(b) Main Point: If a felony is committed that is dangerous and likely
to end life, and death results from the act, it is murder
(3) Historically
(a) In the past, all felonies were punishable by death, so only real
practical difference was with attempted felonies that were
unsuccessful and someone died
(i) Intent to commit felony = sufficient mens rea
(b) Felony murder was incepted when all felonies were punishable
by death, but today where some are not as bad as others, is
discordant with rational and enlightened views of criminal
culpability and liability.
b) Different Statutory Definitions
(1) NY: specific list of felonies included under felony murder
(2) CA: inherently dangerous felonies = 1st degree, less defined but other
felonies = 2nd degree
(3) PA: felony murder typically = 2nd degree and everything else is 3rd
c) Problems with Felony Murder Doctrine
(1) 𝜫 can convict in a case in which there is no actual awareness of risk
32
(2) Can convict in a case in which them is actual awareness of risk but 𝜫
would have hard time providing it beyond reasonable doubt
(3) Can convict in cases in which 𝜫 could prove recklessness but in which
the circumstances don’t manifest the kind of disregard for the value of
human life necessary for depraved heart murder
(4) Some statutory enumerations of felonies can raise what would
otherwise be 2nd degree murder to 1st degree murder
d) Inherently Dangerous Limitation
(1) Inherent Danger in the Abstract
(a) Abstract Approach
(i) People v. Hederson
(a) Cal SC did not permit felony murder conviction
where the act in question, false imprisonment, did
not include inherent danger in all of its elements
(violence, menace, fraud, or deceit)
(b) How dangerous?
(i) Usually must be very dangerous, but can include things
including arson and manufacture of meth
(c) Scope
(i) Question regarding case (Howard) where CA legislature
made a rule that three traffic violations would have to be
made when fleeing police to be inherently dangerous.
Dissent argued this is retarded because even one
violation is inherently dangerous.
(2) Cases
(a) People v. Phillips (1966) pp. 530-31
(i) D, a chiropractor, instructed parents of cancer patient to
choose his services instead of life-saving surgery. The
child died and he was convicted of felony murder
(ii) Main Point: Only felonies that are inherently dangerous
to human life are able to underlie the felony murder rule.
(a) This was not felony murder because medical fraud is
not inherently dangerous to the lives of patients.
(b) Hines v. State (2003) pp. 533-35
(i) D was turkey hunting when he shot and killed his friend.
On appeal, D contended that the jury's verdict was
invalid because the jury could not acquit him of killing
the victim by misusing a firearm, yet convict him of
33
(ii)
(iii)
killing the victim by possession of the same firearm,
without having made inconsistent factual findings.
Holding: D's violation of the prohibition against convicted
felons possessing firearms was an inherently dangerous
felony that could support a felony murder conviction.
Main Point: Felony murder requires only proof of the
underlying felony
e) Merger Doctrine
The majority of jurisdictions acknowledge the need for some “merger”
doctrine, in order to ensure that the felony-murder rule does not
obliterate grading distinctions the legislature desired
(a) Why? Because if another felony is an essential part of a
homicide, then the homicide would inevitably be graded as first
degree, whereas it may be second degree (or third) otherwise
(2) Enumerated Felonies and first-degree murder
(a) Two tests commonly determine merger
(i)
Whether the felony is “included in fact” in the homicide
and
(ii) Whether the felony is “independent” of the homicide
(b) Burton indicates the first test would require merger in all
robbery cases
(i) Thus, the “independent purpose” test avoids this result
(3) Non-assaultive and non-independent purposes
(a) Someone who commits a break in to steal a tv and kills
someone would be guilty of first-degree murder, but if they
broke in with the intent of killing, they may only be guilty of
second-degree
(b) People v. Farley
(i) Stalker enters victims place of work and kills seven
people, wounds four others (including victim), but does
not kill victim
(ii) Had Farley only intended to harm the victim, he would
be guilty of seven first degree murder charges, although
if he intended to harm all 11, he would have been able to
use mitigating mens rea defenses
(iii) The CA SC overruled Wilson and held that burglary and
other enumerated felonies would never merge
(1)
34
(iv)
“There is no room for interpretation when the
Legislature has defined first degree felony muder to
include any killing ‘committed in the perpetration of, or
attempt to perpetrate, … burglary.’ [T]he power to
define crimes lies exclusively with the Legislature.”
(c) People v. Burton (1971)
(i) Defendant killed a person in the course of committing an
armed robbery
(ii) In Ireland and Wilson the purpose was to inflict bodily
injury, thus the desired outcome was not satisfied short
of death. Thus, there was a single course of conduct with
a single purpose.
(a) However, in the case of armed robbery (and other
felonies), there is an independent felonious
purpose.
(iii) Wilson does not eliminate the rule, but merely excludes
it in one small area of conduct (unusual nature of
burglary)
(a) Burglary is usually independent, but in Wilson the
entry was coupled with the intent to commit assault
with a deadly weapon, thus it was similar to Ireland
(iv) The instruction on felony murder was correct in this case
because the venture of armed robbery was within the
rule.
(d) People v. Chun (CA Supreme Court)
(i) Second degree felony murder charge for shooting at an
occupied vehicle.
(ii) Defendant was not the shooter but did fire a gun
elsewhere and was in the vehicle that did the shooting in
the driveby
(a) The defendant wanted to scare the other car and
not harm them, the court believes this distinction is
worth considering due to the punishment in
consideration
(i) The court believes that to merge, it must
look to the elements of the crime and not
the facts
35
(ii)
(iii)
The court found the crime to be of the
“assaultive variety” as well as
non-assaultive, thus both varieties merge.
(iii) This is necessary to avoid consulting facts
that might be disputed and extends
protection of the merger doctrine to the
potentially less culpable defendant whose
conduct is not assaultive
The court believes shooting at an occupied vehicle is
assaultive in nature and cannot serve as the underlying
felony.
f) Further Restrictions → the Agency and Proximate Cause Doctrines
(1) Killings Not in Furtherance of the Felony
(a) Felony murder only applies when the killing is done in
furtherance of the felony
(b) Lethal acts after the felony
(i) A kill during a getaway is in furtherance
(a) People v. Gillis
(b) The defendant abandoned his burglary and in
fleeing, hit and killed someone with his car. The
Michigan court found that this was part of the
burglary and applied a first-degree murder charge
(c) Lethal acts unrelated to the felony
(i) If a felon commits a separate felony during the main
felony and kills someone, any accomplices who did not
participate in the separate felony are not liable
(ii) Taylor: A person could not be held liable for homicide
unless the act is either actually or constructively
committed by him, but the court indicated it was
inapplicable to a case where defendants forced the
deceased to occupy a place of danger in order that they
might carry out the crime.
(iii) Keaton: Court said defendant would be responsible for
the “reasonable, natural, and probable result of his act”
of placing deceased in danger of his life.
(a) The conduct in the above cases is said to reflect
“express malice,” justifying a murder conviction.
(2) Lethal Acts by Persons Resisting the Felony
36
(a) State v. Canola (1977) pp. 346-48
(i) A jewelry heist gone wrong where the owner of the store
and one of the felons were killed. Lower court found the
other robbers guilty on two counts of murder for both
the dead men.
(a) This creates liability for murder even when the
death is of a co-felon
(ii) The court believes that Tort principles of foreseeability
and proximate cause have shallow relevance for murder
in the first degree.
(iii) The court believes that the gradation of liability should
be in accordance with the degree of moral culpability for
the actor’s conduct.
(a) Thus, the court reversed the murder charge for the
death of the co-felon.
(iv) Concurrence
(a) Mostly focused on how the co-felon was not
innocent and thus the homicide was justified.
(v) Main Point:
(3) Why expand proximate cause approach
(a) Why expand the proximate cause approach?
(i) Prof. Leonard Birdsong argues that this broader approach
“would better serve to deter felons who might kill while
also reaffirming the sanctity of human life, even the life
of co-felons who may have been killed.”
(a) Advocates of the agency theory suggest that no
culpable party has the requisite mens rea when a
nonparticipant is the shooter.
(b) Birdsong believes the requisite mens rea is present if
the causal act is part of the felonious conduct.
(c) Birdsong believes the NY rule provides adequate
defense to co-felons while simultaneously only
applying where felons are a sufficiently direct cause
of the death.
(i) NY says a person is guilty of murder if, “in
the course of and in furtherance of
[designated felonies,] he, or another
37
participant… causes the death of a person
other than one of the participants.”
(4) Implied Malice
(a) Where a killing is done by a non-felon during a highly
dangerous felony, then the felons may be liable under an
“implied malice” or “depraved heart” theory without resort to
the felony-murder doctrine, on the ground that the felonious
actions were taken with a conscious disregard for life.
(i) The MPC supports this view.
(a) §2.03 provides: “If one of the participants in a
robbery shoots at a policeman with intent to kill and
provokes a return of fire by that officer that kills a
bystander… the robber who initiates the gunfire
could be charged with purposeful murder.”
(b) People v. Gilbert (SC CA)
(i) Court states that surviving felons can sometimes be held
for murder (of a co-felon) without relying on the
felony-murder rule.
(a) If a victim or police officer kills a co-felon, it cannot
be considered as an independent intervening cause
for which the defendant is not liable, for it is the
reasonable response to the dilemma thrust upon
the victim or policeman by the intentional acts of
the defendant or his accomplice.
(c) People v. Johnson (Cal)
(i) Defendant was not present when co-felons broke into a
stash house to steal weed. One of the victims opened
fire and killed a co-felon.
(ii) The court upheld the defendant’s conviction for
first-degree murder, finding murder on an implied-malice
or “provocative act” theory and raising the offense to
first-degree because the murder occurred in the
perpetration of a robbery.
(iii) The court did not want to allow the “mastermind” to
escape liability where his accomplice suffers a
first-degree charge (as it would be unfair).
(5) Who is killed?
(a) United States v. Martinez (7th Cir.)
38
(i)
Even though only a felon is killed, the court did not want
to say that “the lives of criminals are completely
worthless, so their deaths should not be considered
non-events for sentencing purposes.”
(a) The court believes that holding felons liable for the
deaths of their co-felons is a severe punishment
meant to deter inherently dangerous felonies.
(6) Two Theories Used to Hold Co-conspirators Liable
(a) Agency- provided agency for the felony to take place
(b) Proximate cause- D, in committing felony, was proximate cause
of death
IV. Attempts
A. Introduction and Mens Rea
1. Implied Malice
a) Intent to inflict serious bodily injury
b) Depraved heart (extreme recklessness)
2. ​Most jurisdictions require a purpose for an attempt, even if recklessness would satisfy
had the crime been completed
a) Why require specific intent?
(1) Linguistic
(a) To attempt something is to try to accomplish it, and one cannot
be said to try if one does not intend to succeed
(2) Moral
(a) One who intends to commit a criminal harm does a greater
moral wrong than one who does so recklessly or negligently.
(3) Utilitarian
(a) Holmes: “The importance of the intent is not to show that the
act was wicked but that it was likely to be followed by hurtful
consequences.”
3. Arguments for Less punishment for attempt
a) Incentive to stop crime before committing fully
b) Less culpability = less punishment
4. Elements of attempt
a) With intent to commit a crime
(1) Specific intent
(a) Very similar to purpose
(b) Tricky when paired with requirement of actus reus
39
5.
6.
7.
8.
b) Engages in conduct which constitutes a substantial step towards committing
that offense
Probability of Risk
a) Only relevant insofar as it shows a specific intent to kill
(1) Brandishing gun @ someone’s face = intent
Notes on Mens Rea in Attempt
a) The best explanation for why we have higher mens rea than the underlying
offense is to avoid the bizarre result: felony murder is strict laibility (diminishes
mens rea)- so if combined with attempt law (which diminishes actus reus req.)
then you have no mens rea or actus reus
b) Alternative
(1) Parity- making mens rea equivalent to underlying offense
(a) Not good solution because every time someone engages in
reckless behavior, liable for attempted voluntary manslaughter
(b) Parity specific to mens rea but obviously cannot require the
same actus reus as underlying crime- wasn’t committed
c) Result crimes (much higher punishment where a certain result occurs, ex.
homicide) create problems with attempt law
(1) Attempt law does away with result doctrine
(2) Same rule for circumstances as results- specific intent
(3) Treat circumstances same as underlying crime
Policy Concerns:
a) Need evidence of firm intention
b) D might have changed mind and repented
(1) Fairness
(2) Deterrence
c) Need for police to be able to intervene sufficiently early to prevent crime
Cases
a) Smallwood v. State (1996) pp. 644-46 (Attempt)
(1) Guy rapes a woman and gives her HIV.
(a) Is giving HIV, which will cause death, sufficient to find
attempted homicide?
(2) Court looks to State v. Raines
(a) An intent to kill may be proved by circumstantial evidence
(b) In Raines, the defendant’s “actions in directing the gun at the
window, and therefore at the driver’s head on the other side of
the window, permitted an inference that Raines shot the gun
with the intent to kill.”
40
(c) Two elements:
(i) (1) Raines knew that his weapon was deadly;
(ii) (2) Raines knew that he was firing it at someone’s head
(3) Similar to Raines, Smallwood knew that HIV ultimately leads to death
and that he would be exposing his victims be engaging in unprotected
sex with them
(a) The court believes this requires additional factors
(i) The magnitude of the risk
(4) Main Point: The court believes the State needed to offer evidence that
the risk of death from infection was a probable result of Smallwood’s
actions, like how firing a gun led to certain death
(a) Without the above, there is not enough evidence of intent to
kill
(5) Distinguishing Cases:
(a) In State v. Hinkhouse, the defendant stated to a victim that he
wanted to spread the HIV virus if he had it (which he did but
concealed it) thus the court found an intent to kill
(b) In State v. Caine, the defendant stabbed someone with a used
syringe and shouted “I’ll give you AIDS…” thus forming an
intent to kill
9. Stalking
a) Cal. Penal Code §646.9 (2016)
(1) Any person who willfully, maliciously, and repeatedly follows or willfully
and maliciously harasses another person and who makes a credible
threat with the intent to place that person in reasonable fear for his or
her safety, or the safety of his or her immediate family…
(2) This is done in such a way to not make it too ambiguous or affect
constitutionally protected speech
b) Usually is subjected to an objective test as to what is harassing
c) Cyberstalking is held to the same standards and is often easy to prove where
threats are specific to the person
(1) Some states don’t require threats
B. Actus Reus
1. Preparation vs. Attempt
a) R v. Eagleton
(1) In order to constitute a criminal attempt, as opposed to mere
preparation, the accused must have taken the last step which he was
able to take along the road of his criminal intent.
41
b)
c)
d)
e)
(a) Before this, he can still change his mind.
(b) Until the gun fires, there is no attempt.
The above is not always true, for instance the first poisoning in a long drawn
out poisoning counts as attempt (R. v. White)
General consensus: The first step is not always sufficient and the last step is
not always required
Dangerous Proximity Approach
(1) How close is the preparation to actually attempting the crime
(Modern Approach) Substantial step approach (US v. Jackson)
(1) A substantial step must be conduct strongly corroborative of the
firmness of the defendant’s criminal intent
(2) A remaining substantial step does not preclude a finding that previous
steps were substantial.
(a) Shifts from what remains to be done, to what has been done.
(3) No finding required as to whether actor would have desisted prior to
completion
(4) Proving a substantial step generally will prove less of a hurdle for the
prosecution than the res ipsa loquitur approach, which requires that the
actor’s conduct must itself manifest the criminal purpose…
(5) THIS IS THE MPC APPROACH
C.
1. Cases
a) People v. Rizzo (1927) pp. 652-54
(1) Guys try to find someone to rob, can’t find him, and are arrested during
their search.
(2) “The line has been drawn between those acts which are remote and
those which are proximate and near to the consummation.”
(a) The law only considers those acts which are so near to its
accomplishment that in all reasonable probability, the crime
itself would have been committed, but for timely interference.
(3) Because the defendants never found their target to rob, they are not
guilty of an attempt
(4) The dangerous proximity approach
(a) How close is the person in their preparation to actually
committing the crime
(b) Substantial step approach in United States v. Jackson
b) McQuirter v. State (1953) pp. 657-58
(1) We are not allowed to talk about this case because we are white.
42
(2) Black man convicted of attempted rape after he was caught following a
white woman, and police alleged he confessed in custody that he
intended to sexually assault her.
(3) Main Point: Intent is a question for the jury and is subject to social
conditions and custom.
c) United States v. Jackson (1977) pp. 666-69
(1) Preparation case involving an attempted burglary of a bank. The
conditions were not quite right so the defendants rescheduled and were
arrested before the new date.
(2) The lower court used a two tiered inquiry:
(a) First, the defendant must have been acting with the kind of
culpability otherwise required for the commission of the crime
which he is charged with attempting
(b) Second, the defendant must have engaged in conduct which
constitutes a substantial step toward commission of the crime.
(i) Must emphasize criminal intent
(3) The court found this satisfied and emphasized the substantial step focus,
shifting from what remained to be done to what has been done.
(a) Remaining steps do not preclude findings of previous ones
(b) See above section
(4) The court here found substantial steps and that the crime would have
occurred if not for coincidental outside factors
(5) Main Point: See above section.
V. Complicity
A. Basic Doctrine
1. Theory
a) Human actions are controlled by choice
b) The doctrine of complicity
(1) Imposing liability on the actor who is to blame for the conduct of
another, but which does so upon principles that comport with our
perception of human actions.
2. Common Law to Modern Statutes
a) At common law there were distinct categories
(1) First degree – the actor or perpetrator of the crime
(2) Second – He who is present, aiding, and abetting
(a) Presence may not always be required
43
(b) Constructive presence – keeping watch at a distance for
instance
b) Modern statutes have largely eliminated this distinction
(1) Punishment is the same for principals and accessories
(2) After the fact accessory is usually lesser
(3) Accessories can be convicted before the principal is
(4) Accessory can be charged with same crime as principal
c) MPC influenced statutes
(1) Accomplices are accountable for conduct if they solicit that person to
commit an offense or aid that person in planning or committing it.
(2) An accomplice is charged with the same crime
(a) Accessory after the fact is likely different
3. Conspiracy
a) Agreement by two or more persons to commit a crime
b) Separate offense and a means by which persons may be held responsible for
crimes committed by others
(1) Some may be liable even if they did not intend to commit the crime and
might not be responsible under the principles of accomplice liability
4. Issue: Punishment
a) Where the principal is not actually the main force behind the crime (i.e.,
separate mastermind), discretionary sentencing comes into play
(1) There is no room to differentiate when both parties play a minor role
(2) Judges have discretion in issuing sentences
(3) Holmes – The need to differentiate between principals and accomplices
diminishes with increased sentencing discretion
b) Dressler – The law should distinguish between types of offenders because he
believes it is unfair otherwise
B. Mens Rea with Respect to the Principal’s Conduct
1. MPC
a) Requires that the actor “have purpose of promoting or facilitating” the
commission of the crime
b) Glanville Williams addresses the difficulty with the above:
(1) It is good in that it protects people who unknowingly aid a crime
innocently
(2) But it feels underinclusive for those who intentionally aid one crim with,
say, a commodity sold, but then that thing is used for other crimes too
2. General Rules
a) Accomplices can only be guilty of the crime committed by the principal actor
44
b) Traditional/Common Law Approach:
(1) Elements of Complicity:
(a) Intention to aid
(b) Mens rea for underlying offense
(c) Actual aid/encouragement
(i) Under MPC, attempt to aid is sufficient
3. The seriousness of the substantive offense
a) Some courts believe the seriousness of the offense should be considered in
determining the required mens rea for complicity
(1) U.S. v. Fountain
(a) Defendant was convicted of aiding and abetting the murder of
a guard
(b) The defendant provided the knife
(c) The court held that it was not required to find that the
defendant’s purpose was that the other inmate kill the guard,
and it was enough that he helped the other inmate obtain the
knife while knowing it would be used to attack guards
b) Consider selling a gun to a person who tells you they will commit murder
versus selling a dress to someone you know will use it for prostitution
4. Bottom Line
a) “There is no aiding and abetting unless one ‘in some sort associate himself with
the venture, that he participate in it as in something that he wishes to bring
about, that he seek by his action to make it succeed.” (quoted in State v.
Gladstone) (Peoni via Learned Hand)
5. Cases
a) Hicks v. United States (1983) pp. 695-98
(1) Hicks rode off with the man who shot the victim dead. Hicks allegedly
told the victim to take off his hat and die like a man during the
altercation.
(2) Simply intending words does not imply the intention of the words
themselves was a certain outcome; the issue is not whether the words
encouraged the shooter, but if the words were intended to encourage
the shooter
(3) If a previous conspiracy to commit a crime exists, then an accomplice
present at the crime who does not take part is likely guilty anyway. That
was not the case here.
b) State v. Gladstone (1970) pp. 698-700
45
(1) Conspiracy regarding evidence of a conversation between defendant and
another man regarding the possible purchase of marijuana
(2) Gladstone is being charged because he told a police informant where he
could buy drugs
(a) There is no evidence of communication between Gladstone and
the dealer
(3) The Court finds that this is not evidence of any commission of the crime
by Gladstone
(a) Gladstone did not counsel, encourage, hire, command, induce,
or precure the dealer to sell marijuana to the informant
(4) “There is no aiding and abetting unless one ‘in some sort associate
himself with the venture, that he participate in it as in something that he
wishes to bring about, that he seek by his action to make it succeed.”
(Peoni via Learned Hand)
(5) HYPOS:
(a) Aiding and Abetting the purchase?
(i) Gladstone could not be convicted because the informant,
as an informant, committed no crime
(a) MPC provides for liability where someone aids and
abets or attempts to do so when another does not
actually commit the crime.
(ii) Perhaps if the informant was simply another student,
Gladstone could have been convicted
(b) Aiding and Abetting the sale?
(i) ​Had Gladstone done anything to encourage the sale, like
qualifying the quality of the products, this may have
been enough
(ii) State v. McKeown – liability imposed where the person in
Gladstone’s position was actually at the sale (and likely
influenced it)
c) Rosemond v. United States (2014) pp. 704-708
(1) Sale of weed gone bad with shots fired. Defendant accompanied the
buyer who fired (and his friend who may have fired)
(2) Federal statute states that
(a) A person who furthers – more specifically “aids, abets,
counsels, commands, induces, or procures” – the commission
of a federal offense “is punishable as a principal.”
46
(b) At common law, Rosemond need only facilitate one component
of the crime (the purchasing of drugs or the firearm offense)
(i) This does also require mens rea
(3) “A person who actively participates in a criminal scheme knowing its
extent and character intends that scheme’s commission.”
(4) Rosemond needed to know a gun was being carried (as this would
become an armed drug deal).
(a) Needs to be advanced knowledge so that Rosemond could
make the relevant choice as to carry it out and go forward with
the plan
(i) There must be an opportunity to quit the crime
(5) Note: The court does not believe quitting is required if it would increase
the risk of the crime (in some cases) and does not provide mens rea if
the defendant has not quit
C. Mens rea with respect to results and attendant circumstances, the
"natural and probable consequences" doctrine, and the actus reus for
complicity
1. This section addresses complicity without being an intentional accomplice to the
primary crime in question. It also considers importing mens rea for accomplices.
2. MPC Approach
a) MPC 2.06
(1) (3) A person is an accomplice of another person in the commission of an
offense if… with the purpose of promoting or facilitating the
commission of the offense, he… aids or agrees or attempts to aid such
other person in planning or committing it.
(2) (4) 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.
(a) The MPC commentary says: One who solicits an end, or aids or
agrees to aid in its achievement, is an accomplice in whatever
means may be employed, insofar as they constitute or commit
an offense fairly envisaged in the purposes of the association.
(3) However, when a crime is committed with conduct not within the
conscious objectives of the accomplice, he is not liable unless the case
falls within subsection (4) above.
47
3.
4.
5.
6.
b) MPC 5.01(3)
(1) A person who engages in conduct designed to aid another to commit a
crime which would establish his complicity under MPC 2.06, if the crime
were committed by such other person, is guilty of an attempt to commit
the crime, although the crime is not committed or attempted by such
other person
Accomplice liability based on the same mental state as the substantive offense
a) McVay and Roebuck make clear that there is a distinction between conduct
elements and result elements.
b) The cases recognize that for accomplice liability, the accomplice must have
specific intent to further the underlying conduct committed by the principal,
but for the result, he need only have the mens rea required for the result
element of the substantive offense.
(1) What does this really mean???
c) The mpc is in accord with McVay and Roebuck
MPC on the mens rea required for attendant circumstances
a) Purpose is required as to “the commission of the offense,” but the MPC is silent
on whether the requirement applies to attendant-circumstances of the offense.
(1) Attendant circumstances are elements other than actus reus, mens rea,
and the result that define a crime (i.e., a victims age in a statutory rape
case)
(2) No idea what this is really saying
(a) Something like the circumstances must be resolved by the
court and action must be with respect to the proscribed
conduct
Attempts
a) The doctrine for attempts requires the purpose to produce the result or belief
that actions will cause the result
(1) Accomplice theory however requires not purpose, but a mens rea
required for a commission of the charged offense.
(a) This seems like it lowers the standard for an accomplice
Attendant circumstances
a) If a person tries but fails in an attempt to complete a strict liability crime,
regardless of knowledge of attendant circumstances (i.e., statutory rape) then
they are guilty
(1) This is consistent with accomplice theory where the result is not the
focus, only the required mens rea.
48
7. Cases
a) State v. McVay (1926) pp. 714-15
(1) Manslaughter brought against the captain and engineer of the steamer
as principals and Kelley as an accessory.
(2) Kelley was charged with feloniously and maliciously aiding, assisting,
abetting, hiring, commanding, and procuring the captain and engineer.
(a) Kelley contends that because manslaughter is without malice
and involuntary, he cannot be charged as being an accessory
before the fact as manslaughter is inherently sudden and
unpremeditated
(i) The court agrees somewhat but says that manslaughter
may be premeditated
(3) Consider: violating a motor vehicle law or giving drugs to someone who
ODs
(4) The court believes it is possible that Kelley may have given direction to
commit the gross negligence which led to death.
(a) The court believes that his action was akin to this and he
procured the other defendants to act negligently.
(5) Main Point: One must have had an intention and provide the means for
an underlying crime to be committed.
b) Commonwealth v. Roebuck (2011) pp. 715-16
(1) Appellant assisted in a scheme in which a victim was lured into a trap to
be shot by someone else. This case regards third degree murder.
(2) The appellant argues that it is not possible to be an accomplice to third
degree murder since third degree murder is unintentional killing with
malice.
(3) Statute:
(a) “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.”
(4) The state argues that one is an accomplice in third degree murder due to
the shared criminal intent motivating the underlying conduct which here
was designing to stage a very dangerous altercation. This establishes
criminal culpability.
49
(a) The court believes it makes sense to hold malicious conduct to
account to the same degree as the principal for foreseeable
consequences of the wrongful actions
(5) Main Point: The result of the crime is not considered, it is only
considered whether there is a requisite mens rea that establishes
culpability for underlying conduct which leads to the result.
(6) Concurrence
(a) Imagine a scenario where an accomplice hands a gun to
another saying “shoot the victim, I don’t care if he lives or dies,
but shoot him.” The shooter shoots the victim in the leg not
intending to kill him, but the victim dies. This is third degree
murder where the accomplice acts with such conduct and
culpability that led to the result sufficient for the commission of
third degree murder.
(7)
c) People v. Russell (1998) pp. 719-721
​Accomplice liability for enemy: D engaged in shootout. Held intentionally
aided and encouraged each other to create the crossfire because you need an
enemy to have such combat (Russell p. 719)
●
Prosecution argued the D can be an accomplice against whom the D was
fighting
d) People v. Luparello (1987) pp. 721-24
-
Extended natural and probable consequences:
●
A D is on the hook for not only the offense he intended to facilitate or
encourage, but also of any reasonably foreseeable offense committed by the
person he aids and abets. Luaprello asked his friends to elicit information from
Martin. Does not want death to occur, but they ended up killing him instead,
resulting in a murder conviction for Luparello. Extends natural and probable
consequence to make first degree murder where negligence is sufficient or
murder. (Luparello)
§ Extends to someone to have a purpose to get someone to engage in a
crime for which he was only negligent for.
e) Wilcox v. Jeffery (1951) pp. 727-28
- No but for cause needed and actus reus found when D charged with aiding and
abetting with the immigration law when he went to performance while jazz player
50
was there without a visa. D was publisher of Jazz magazine ad was there when the
jazz player arrived; paid for concert, and wrote positive view of the concert in the
magazine. (Wilcox p. 727)
f) Croy
Luparello analogizes to People v. Croy: CA Supreme Court stated that aider and abettor’s
liability is vicarious: “he is guilty not only of the offense he intended to facilitate or
encourage, but also of any reasonably foreseeable offense committed by the person he
aids and abets.
Concurrence in Luparello: Problem with “foreseeable consequence” doctrine in Croy is
that it places the mental state of the perpetrator and/ or circumstances of the crime
upon the actor not directly involved
In Luparello: D liability is not based on his own mental state, btu on the mental
state of the shooter who intentionally killed V while “lying in wait”
g) California v. Roy (Supreme Court)
- Roy: Miller—police informant, went to buy a handgun. Roy ended up selling the
police informant to someone else. The other person robbed the police informant
to someone else. The other person robbed the police informant. Question if Roy,
who helped facilitate the handgun purchase, was guilty of robbery as an
accessory. Held armed robbery not a natural and probable consequence of
purchasing the handgun. – typically applied when unexpected result is homicide
– hasn’t seen this applied outside of homicide (professor)