Red= MPC, Green = CL, Purple = both
Statute Interpretation:
● If statute is clear, plain language given the greatest weight.
● If statute is ambiguous, courts look at:
○ Dictionary, intent of legislature, policy affects
○ Avoid absurd results
● If there are conflicting reasonable interpretations: rule of lenity requires that the
statute be interpreted in favor of the defendant.
○ However, SCOTUS has stated that this rule is merely for last resort.
● MPC: doesn’t recognize the lenity principle.
○ Statute should be interpreted to further the legislative policies behind the
law in question, not frustrate them.
● AMBIGUOUS TERM: Dangerous weapon: NY statute could be persuasive
authority which states: a dangerous weapon can be anything used to inflict
physical injury. Look at circumstances, frying pan isn’t a dangerous weapon but if
used to hit, can be.
○ SAY: need to do some research on the law and facts. Then end with: if it’s a
dangerous weapon, element satisfied, if not, not satisfied.
● Great Bodily Injury: if no definition on this, need to say that. And say that bloody
nose might constitute as such PLUS usually prove mens rea through
circumstances, go through facts.
● “Any felony”: likely a misleading term. Courts limit any felony to malum in se
offenses that are dangerous to human life. See Anderson.
● VAGUE: The Constitution requires that laws cannot be overly general or vague
because the ordinary person with average intelligence must be on notice of a law.
Gives law enforcement too much power/discretion to decide whats a crime.
○ See Papachristou
● Prima Materia: statutes of the same subject matter should be interpreted in light of
one another, note: cannons of construction are rule of thumb not automatically
enforced.
Burdens:
● Burden of proof: jury decides, subjective proof that it happened.
● Burden of production: judge decides it, objective, just must be reasonable and
must provide evidence for each element.
○ If P fails to do this, judge can issue an acquittal at the end of P case in chief.
○ D also has a burden of persuasion for an affirmative defense.
■ If D fails, judge will strike elements of affirmative defense in jury
instructions.
● Burden of persuasion: who has to convince the jury of which facts?
○ This party bares the risk of failing to convince the jury that the fact is true.
● § 7.04: P has the burden of production regarding each element of an offense.
○ For affirmative defenses, P is not required to disprove the defense unless
there is evidence supporting such defense, up to court’s discretion.
○ P has the burden of persuasion, including the need to disprove defenses.
I. ACTUS REUS
● Must prove a voluntary act or an omission to act which results in harm.
○ Not enough that D thought about committing the crime.
● Anything which an individual has physical control over is voluntary.
○ Blinking eyes, vocal cords vibrating to speak
● Involuntariness can be a defense, insanity is not a defense here, only mens rea.
● MPC § 2.01(2) lists the following as involuntary acts:
○ Reflex or convulsion
○ Unconsciousness or asleep
○ Conduct during hypnosis
○ A bodily movement not made by the actor
○ § 2.05 (1): violations don’t require an actus reus
● CL cases which have established the following as involuntary:
○ Addicted to a drug, not voluntary
● Possession: not an act necessarily, but if D knows/has control over drugs, satisfied.
● OMISSION:
○ Criminal statutes generally don’t require people to help those in trouble.
● UNLESS:
○ Statute imposes such a duty
○ Close status relationship, ex: parent-child
○ Contractual obligation (lifeguard)
○ Where a person takes the initiative and has an assumption of duty
○ Actor has created the initial harm himself, ex: running victim over with car
Exception: if person is unaware of duty to act or can’t physically act, they are exempt.
CASES:
● People v. Gastello: D in custody, brings drugs into jail. Not a voluntary act.
● Martin v. State: drunk man, police brought on sidewalk. Charged for public
drunkeness.
○ No actus reus, police made crime, also entrapment.
● People v. Low: brought drugs into jail. Voluntary act satisfied.
○ Bring is not a term of art, therefore can use dictionary definition.
○ Police warned D of harsher jail sentence for bringing contraband, D
ignored.
I. MENS REA
● Culpable mental state
● MPC § 2.02(1)
○ Purpose: knew/wanted act to happen, acted anyways. Intentional.
○ Knowledge: practically certain result will follow, acts anyways.
○ Recklessness: gross deviation from standard care, consciously disregards
substantial and unjustifiable risk.
○ Negligence: should be aware of substantial and unjustifiable risk
○ § 2.02(5): greater includes the lesser
● Intentionally: conscious desire, purposefully causes the harm, or acts with
knowledge.
● Recklessly: disregarded a substantial and unjustifiable risk of which he was aware
of.
● Negligently- gross deviation from the standard of care, should have been aware of
● NOTE: if statute says willful: act done with bad purpose, or evil motive, or
intentional violation of known legal duty (need to look at context)
○ Meaning: no mistake of law, D knew it was illegal, did it anyway
■ Defense for mistake of law
○ Malice: intentionally or recklessly causes social harm prohibited by offense
● Strict Liability: don’t require mens rea term
○ Statutory rape
○ Violations- speeding, noise violation, etc.
○ public welfare- pharmacists, Dr.’s
○ regulatory offenses- people should be on notice if their job often causes
offenses
○ DEBATE: look at severity of punishment
● MPC § 2.05: violations are strict liability
● Presumption against strict liability case, therefore prob include MR. Debate.
● General Intent: when the mens rea only requires the intent to do the act that causes
the harm, ex: punching someone in an assault. (intent to push the gas)
○ Only requires proof of lesser state: reckless, negligent, knowingly
● Specific Intent: must prove intent to do the act AND some additional crime. Ex:
assualt with intent to rape. (intent to kill, so that’s why you push the gas)
○ Requires proof that D acted with purpose
● Transferred Intent: if you kill B but you only intended to kill A, your intent
transfers. “Intent follows the bullet”
● Voluntary intoxication not a defense. Only a defense as far as mens rea goes, if D
can establish so so drunk, can’t possess mens rea requirement.
CASES:
● Thompson v. State: dancer doesn’t have license on her. NOT a strict liability crime
because the statute was silent, we read in mens rea. No public welfare/other
reason to make it a strict liability crime.
● US V. Freed: if a statute doesn’t have mens rea, and a reasonable person would
likely be on notice of such a regulation, impose strict liability, D owned grenade.
○ Ex: if you have a grenade, you need to get a license. Doesn’t matter if you
didn’t know you needed a license. Public welfare issue.
● US v. Balint: D argued didn’t know narcotics he was selling violated law. Mere act
of knowing you're selling drugs is enough. No MR for which drugs are illegal.
● Staples v. US: owning a gun is not inherently wrong or dangerous. Therefore, need
to have mens rea if you want to charge someone for owning an un-registered
machine gun when they believed their gun was completely innocent non machine
gun.
● Dean v. USA: D’s gun accidentally discharged while robbing a bank. No MR
required because it was in the commencement of the robbery.
○ D is responsible for all other crimes that come about as a result of his
robbery. D should have been more safe when robbing the bank. Deterrence
argument to establish strict liability.
○ Intending to commit the robbery is enough for MR.
○ Could have robbed with an unloaded gun, therefore responsible.
Mistake of Fact
● If D reasonably misunderstood some fact which destroys the whole purpose of the crime,
don’t have to prove mens rea.
● Specific Intent: requires purpose, so if you argue no intention, valid defense.
● General Intent: R, N, K, - guilty if his mistake was unreasonable.
○ Ex: charged for robbery, but believed they were taking their own car.
○ MPC § 2.04: mistake of fact is a defense
○ BUT if its a strict liability offense, mistake of fact is never a defense!
II.
●
●
●
CAUSATION- discuss once in the final, not every crime
Need both actual and proximate cause to convict D.
But-for-cause, actual cause: would the outcome have resulted when/as it did?
Proximate Cause: if above satisfied, is it fair, reasonable, just to hold D guilty?
○ Were his actions foreseeable?
CASES:
● State v. Rose: D hit the victim with the car, but failed to stop. P argued that his
failure to stop caused the death.
○ P should have tried to prove that the impact actually caused the death.
III. HOMICIDE
● First Degree Murder:
○ Caused the death of another AND
○ Acted with malice aforethought, either express or implied.
■ Express: intended to kill
■ Implied: intentionally committed an act, AND
● Act was dangerous to human life, AND
● Knew the act was dangerous to human life
● AND acted with conscious disregard of human life.
○ Malice aforethought doesn’t require hatred/ill will. Must happen BEFORE
the act is committed, doesn’t require deliberation or passage of time.
● Premeditated and Deliberate, MR: if attached to a 1st degree murder statute,
consider: (IF IT’S NOT AN ISSUE, DON’T TALK ABOUT IT)
○ Relationship between D and V
○ Plan, calculation, design, preparation
○ Reason or motive
○ Mental state at the time of the killing, to include provocation
○ Method or weapon used (may suggest a plan)
CASES:
● If it doesn’t say what Jx we are in, need to argue both:
● People v. Guthrie: premeditated = a time when D can change his mind. Must be
evidence that the D considered and weighed his decision before doing it.
● State v. Schrader: premeditated = doesn’t need to exist for any length of time,
sufficient to show that D intentionally and knowingly committed the crime.
FM - form of 1st degree murder
● FM applies to a death that occurs during the attempt, commission, or flight from a
felony.
● Stabbing someone = aggravated assault, predicate felony possible
● P must establish each element of predicate felony before moving on to FM
(including MR for lesser crime).
● Need a causal relationship between predicate felony and death.
○ Foreseeability not required, so talk about it and then disregard it.
● If statute states “any felony,” doesn’t mean it.
○ Only predicate felonies which are inherently dangerous to human life.
■ P argues for more abstract danger.
○ P will argue plain language. D will argue merger doctrine because if we
ignore merger doctrine, it will make a crime which was otherwise
manslaughter, turn into 2nd degree FM.
■ D argues for more fact danger. (burglary in the day w/no one home,
not dangerous to human life).
Merger Doctrine: applies to dangerous felonies
● Predicate felony must be separate conduct, need an independent felonious purpose.
○ Ex: mere assault does NOT merge if someone dies while punching them, no
independent felonious purpose. Manslaughter also not FM.
○ Assault with intent to commit robbery = FM, separate conduct.
○ Robbery is an assault crime, you need to incentivize the robber to be
careful.
○ Assault with a deadly weapon = a debate.
● Inherently Dangerous Felony Doctrine: have an independent felonious purpose,
but not dangerous enough for predicate felony.
○ So risky and dangerous that anyone who does it should know that it could
lead to death.
■ Ex: letting bombs go off without a permit
■ Need to do an analysis of the elements or facts. Minnesota requires
both. Felony must be dangerous on elements and facts of the case.
● Usually makes something more or less dangerous.
○ Ex: hyenas don’t make the assault more dangerous
○ Medical malpractice doesn’t make driving more
dangerous.
○ Forgery and owning the animal are not the same as killing someone. Not a
natural step to homicide. If the crime differs from homicide, then it needs to
be inherently dangerous to constitute.
■ Needs to easily lead to homicide! Practicing surgery without a
degree is not homicide, but could lead to death. So satisfies.
● Temporary place of safety breaks the chain.
● Continuing offense satisfies the predicate for FM, ex: escaping from prison
RESPONSIBILITY OF D:
● Agency Theory: holds D responsible for himself and his agents, not 3rd party
(like police).
○ Liable for any deaths caused by the D/agents in the commission or an
attempted commission of a felony.
○ D is only responsible for the actions of himself and accomplice.
■ Not police (Dekens)
● Proximate Cause Theory for FM: D is held responsible for ANY acts that
happen as a result of their felony, including 3rd party. Should have foreseen.
● If accomplice dies in process of felony, felon can be held responsible for FM.
○ BUT generally not responsible for 3rd party actions.
○ HOWEVER, if 3rd person kills the accomplice, felon can be charged with
FM because he took the risk.
● NO FM statute under MPC, but there is 210.2(B), which is NOT FM, but
channels certain crimes which would be depraved heart murder in other Jx. If
D is committing one of the enumerated felonies, there is a presumption that the
actions are manifesting extreme indifference to human life as required by
homicide.
○ MPC only allows the following to serve as predicate felonies:
○ robbery, rape or deviate sexual intpreercourse by force or threat of force,
arson, burglary, kidnapping or felonious escape.
○ If above not satisfied, need to show P, K, or reckless disregard for human
life.
■ BUT non-enumerated felonies can be used to show intent/mens rea.
● Drunk driving shows reckless indifference to human life
● If someone is driving to commit tax evasion, might cause
them to be more reckless.
CASES:
● State v. Anderson: D shot V in an altercation, assault with deadly weapon FM
charge. D was convicted.
○ Statute enumerated assault with deadly weapon as predicate felony.
○ D argument: this changes the MR requirement for murder from intent to kill
to just intent to assualt, inherently wrong.
● State v. Armstrong: D was holding V’s stolen gun, went off and killed V.
○ Court said no FM because owning/holding a gun is not inherently
dangerous to human life, Staples.
○ P arguments: may not be dangerous to hold a gun, but this was a stolen gun,
D was already dangerous.
Second Degree Murder:
● CL: all other forms of murder: unintentional, servere bodily harm, depraved heart.
○ Depraved heart: acting so recklessly, that is basically malice.
■ Ex: firing a gun into a crowded room
■ But universal malice is outmoded. Depraved heart can be established
if it endangers a single life.
○ Lacking in premeditation/deliberation, but still an intent to kill.
○ No provocation, if provocation, it would be manslaughter.
● No 1st/2nd degree, just murder.
○ §210.2: Criminal homicide constitutes murder when:
■ Committed purposely or knowingly, OR
■ Committed recklessly under circumstances manifesting extreme
indifference to the value of human life.
Voluntary Manslaughter:
● Requires:
○ heat of passion at the time of killing
○ In response to adequate provocation
○ D can’t have a “cool off” period
○ Causal connection between provocation, the passion, and the killing.
○ IF RECKLESS: consciously disregarded substantial risk
■ Knew there was a risk, ignored it.
● § 210.3: committed recklessly OR under the influence of extreme
mental/emotional disturbance for which there is a reasonable excuse.
○ EED = jury question
○ Can have a cooling off period in MPC
○ Need both a subjective and objective approach.
■ Real emotional distress AND a reasonable person in the same
situation would agree.
Involuntary Manslaughter
● If jury doesn’t buy VM, they will buy the argument that he should have known the
risk.
● Unintentional, reckless, unlawful act, criminal negligence- gross deviation from
standard of care.
○ Ex: drunk driving
● Under CL, manslaughter can be found if D had criminal negligence!
● MPC: manslaughter requires more than criminal negligence.
Negligent Homicide
● Only in MPC.
● Equivalent of CL involuntary manslaughter, criminal negligence.
IV.
DEFENSES
● Failure of Proof: attacks the elements of an offense, D shows that one or more
elements can’t be proved.
○ § 1.12: need proof beyond a reasonable doubt for each element
○ §1.12 (B): if D has to prove an element, by a preponderance of the evidence
● Justification Defense: bad act, but justified. Killing in self defense.
● Excuse Defense: bad act, but okay given circumstances. Ex: insanity
● True Defense: acknowledges that the elements have been satisfied, but the
defendant should be not guilty.
○ Makes D bear the burden of production AND adds another element to
which P must disprove.
○ Ex: self defense, insanity, necessity, and mistake of law.
● Mistake of Fact: whether mistake of fact rids of MR requirement, or whether
statute allows for this mistake.
○ Ex: if someone has intent to commit a different crime, they are responsible
for their intended crime, not the one they committed.
■ Attempting to smuggle diamonds = same as doing it
○ Legal Wrong Doctrine: if you meant to commit a different crime, doesn’t
matter, took your chances.
■ BUT if you thought you were doing something legal, given the
benefit of the doubt. (ex: buying a teddy bear with cocaine in it)
■ For general intent: driving about to hit racoon, hit a toddler instead.
● Mistake of Law: ignorance of the law is not generally a defense, EXCEPT:
● Generally, ignorance of the law is not a defense, some exceptions, not valid here.
○ The law isn’t a real law because it hasn’t been published.
○ DURESS: An official government entity/publication misleads the D, and D
reasonably relied on such misinformation (called entrapment by estoppel).
○ Could also be established if statute requires knowledge of the law, not
likely.
○ NOTE: if statute states “willful” means willingly. Must prove D knew they
were violating the law. Ex: willingly not paying taxes requires intent.
● Entrapment: D cannot claim entrapment if the government takes advantage of
someone’s predisposition to commit a crime.
○ Ex: asking someone to buy illegal drugs, or posting something illegal
online, = not entrapment.
○ Valid: forcing/pushing someone to buy illegal drugs.
■ Duress is not a valid defense if D recklessly placed themselves in a
situation where duress was probable.
● Entrapment by Estoppel: government tells you its legal, then arrests you for it.
● Mitigation Defense: reduces a crime to a lesser offense. D bears the burden of
production and persuasion.
○ Ex: murder to manslaughter
● Year and A Day: if death happens after this timeline, need to research whether rule
exists in Jx and prepare argument that it should or shouldn’t be discarded by
courts.
○ If it should be discarded, say modern medical science can show causation
even after one year and a day.
● Irrational Statute: statute on its face is irrational. Doesn’t make sense that the
statute is arguing attempt
● Racist/Discriminatory Statutes
● If a defense doesn’t exist, but it should.
○ Teacher finds a gun in a park, gives it to police, she shouldn’t be guilty of
possession of a gun without a license.
CASES
● Lambert v. CA: Charged D for violating an LA county residence law they knew
nothing about.
○ D failed to register, violated the statute.
○ D: mistake of law defense. Had no idea the law existed.
○ Holding: not guilty, passive act, no reason to know of the ordinance,
conduct is just being in LA, innocent.
● US v. PICCO: gov misled agricultural company into believing they were within
the regulations, turns out, they weren’t.
○ Holding: entrapment by estoppel. Misled, and reasonably relied.
SELF- DEFENSE
● Killing is justified if at the time of use of deadly force, there is honest and
reasonable belief that such force is necessary to prevent unlawful and imminent
deadly force against a person or others.
● Past actions of the decedent are relevant to show what decedent was capable of or
what they may have been doing in the incident.
○ Reasonable Belief (doesn’t have to be correct, just reasonable):
■ Subjectively person did use reasonable force, AND
■ Objective person would use reasonable force
○ Proportionality: can’t use deadly force against a non-deadly threat.
■ Must be combating an unlawful act (can’t use against police).
○ Imminent: responded to the threat in that instant
○ Necessity: there are no alternative actions such that deadly force is the only
option
■ Retreat: never have to retreat to use non-deadly force, most states
don’t require you to retreat before using deadly force either
■ Castle Doctrine: never have to retreat in your own home
○ CAN’T be Initial Aggressor: if you’re the provoker, forfeit self-defense
■ UNLESS: you stop the fight and show that you are no longer a threat
but then have to defend yourself because they attack you.
● § 3.04: Self- Defense
○ Honest belief (not necessarily reasonable)
○ Immediately necessary: broader time frame than imminent
○ Unreasonable belief may constitute an imperfect defense
○ Duty to retreat imposed! UNLESS: at home or in the work place
● Imperfect Self-Defense: mitigates murder to manslaughter (only in some Jx)
○ D honestly but unreasonably believed deadly force was necessary, OR
○ D used deadly force against non-deadly force, OR
○ D was a non-deadly aggressor and used deadly force against deadly force
■ Threatening to punch someone, but they try to stab you, and then
you stab them.
○ IF D is non-deadly aggressor, V responds with deadly force. D kills V in
self- defense. Under CL:
■ Could be manslaughter, D only partially at fault.
■ Murder: D provoked, even non-deadly, so no SD. But need MR.
■ No homicide crime, only assault. V not D, made the situation deadly.
● Provocation Defense- eliminates self-defense
○ If you're provoker, technically have to let yourself be killed, so no self
defense.
○ Can mitigate murder to manslaughter.
○ Kicks into gear if you lose self-defense right because you provoked V.
○ Unlawful force, unlawful threats, returning to a scene of violent conflict.
■ Returning to the scene of the conflict makes other person think
you’re going to harm them.
○ § 3.04(2)(b)(1): the actor, with purpose of causing death or serious bodily
harm, provoked the use of deadly force against himself, cannot claim
self-defense if he ends up killing the other.
■ Can regain self-defense if withdraw and communicate withdrawal.
■ Mere words can be sufficient, not enough for CL
■ No cooling off period
■ Case by case analysis
● Heat of Passion Defense- eliminates self- defense
○ Something to obscure the reason of an ordinary man where provocation
would cause a reasonably person similarly situated to react.
○ When a victim provokes D.
CASES:
● State v. Harden: D killed her husband after a night of terror. He was sleeping while
she killed him.
○ Subjective and objective belief of harm.
○ Castle doctrine, so no duty to retreat.
○ BUT not in imminent danger as he is asleep, therefore cooling off period.
○ Holding: conduct prior to the killing shows reason for self defense.
● Thompson v. US: D was in conflict with V, returned to conflict site because only
route home. Court denied his self-defense claim.
○ Holding: Should be allow to argue provocation defense.
○ If you know you can avoid use of force with complete safety, have a duty to
avoid using such force.
○ Past evidence of a quarrel or previous threats demonstrate premeditation
and deliberation.
● Gibbs v. Florida: D confronted V, V said racial slur. D responds back and ends up
killing V.
○ Words are insufficient to constitute provocation. Must be force or threat of
force which can induce provocation defense.
● Girouard v. State: D killed wife after taunting and insulting him.
○ Words alone can’t count as provocation under common law. No threat to
cause bodily harm. Reasonable person would respond violently.
ATTEMPT
● Merger Question: attempted murder and murder don’t merge, too closely related.
○ Under CL, can be convicted of both solicitaiton and murder and conspiracy.
■ Ex: if you hire a hit man, can be charged for solicitation and murder.
■ Trying to punish both ends, not just trying to punish the murder, also
hiring the hit man.
■ Cant be charged with conspiracy and attempted conspiracy.
CL/MPC Need intent to commit the full crime.
○ Even if the complete crime only requires murder with malice aforethought,
for attempted murder, need specific intent to kill.
● CL Requirements:
○ Intent to commit a specific offense
○ Performance of substantial step towards the commission of the offense
○ Failure to complete the crime
● § 5.01: incomplete attempts
○ Substantial step towards completing the crime
■ Ex: on the way to delivering the bomb, get ran over by a car.
■ 5.05(2): If the particular conduct charged to constitute an attempt is
so inherently unlikely to result in a commission of a crime... court
should impose a sentence for a crime of lower degree
○ Complete attempt:
■ Takes every step necessary to complete the crime
● Puts the bomb in place, tries to ignite it, doesn’t go off.
Actus Reus:
○ Varies by jurisdiction, but conduct must occur before completion of the
crime.
○ MPC= weights the intent a lot more, therefore more lenient.
■ Ex: purchasing a glass cutter is probably enough for a substantial
step.
CL= more strict, want to see the plan actually in action.
■ Mere preparation is not attempt. Not enough to just buy glass cutter,
but if you take other steps and show that its being used for robbery,
could be enough.
○ Proximity Tests for CL:
○ Proximity steps: how close the person came to completing the offense
○ Last Act Test: only punishes complete attempts, not incomplete.
■ When the P proves that D committed the very last act before the
offense.
■ Physical Proximity Test: accused must have neared completion of
intended crime,
■ D has the power to immediately complete the crime.
○ Dangerous Proximity: how close the person is to physically complete the
crime and how dangerous the crime is
■ Courts consider the gravity of the crime, the more serious the crime,
the less physically/temporally close the D has to be in committing
the crime.
○ Res Ipsa Test, Unequivocality: taking a step back, could the conduct
unequivocally be characterized as perpetration of a crime?
■ If MPC is persuasive, talk about substantial step.
● MPC § 5.01:
○ (1) Purpose to commit the target offense or belief result will occur, and
○ Substantial step towards completing crime which corroborates intent.
○ Substantial Step, § 5.01(2):
■ Does NOT need to be in physical proximity or unequivocal
■ Sufficient to be: lying in wait, search for victim, returning to the
intended scene of the crime, unlawful entry into a structure where
crime will be committed, and possession of materials for purpose of
committing crime, specifically designed for the crime, serve no
other lawful purpose.
● ATTEMPT DEFENSES
○ Impossibility as a Defense (both MPC/CL):
■ Factual impossibility not a defense if D attempted to commit crime
but circumstances made it impossible for him to do so.
■ KEY: D’s intent. Wanted to commit the crime, so guilty of the crime.
■ Ex: if D wanted to kill V by burning down her house, doesn’t get off
the hook for attempted murder because she isn’t home.
○ Legal Impossibility: valid defense!
■ If D thought they were committing an illegal crime, but not illegal,
can’t be charged for attempt.
○ § 5.01(4): Renunciation as a Defense
○ May not have been adopted by CL Jx, but D could argue that they should
adopt it formally. MPC has been persuasive in many Jx, however.
■ Must be a moral withdrawal from commission of the attempt, not
practical.
■ Must be successful in preventing the crime and reporting it before
the attempt was completed.
Unintentional Attempted Crimes
● Cannot be an attempt for accidental or unintentional crimes.
● Ex: no attempted felony murder or manslaughter,
○ Attempt requires a form of intent which the above don’t have.
SOLICITATION
● When a person invites, requests, hires, or encourages another to engage in
unlawful conduct.
○ Hiring a hitman or encouraging your friend to rob a bank
● Need specific intent: intentionally invites, hires, or encourages someone else to
engage in the commission of a crime.
● Actus Reus: disclosure of criminal scheme to another person.
● MPC § 5.02:
○ Purpose to facilitate commission of a crime
○ With such purpose, command, encourages, or requests to engage in conduct
that would constitute the crime or an attempt to commit the crime.
○ NOTE: renunciation is also a defense if D solicits someone to complete the
crime, but then persuades them not to do so. § 5.02(4).
CONSPIRACY
● Group of 2 or more people who agree to commit an unlawful act or a lawful act
with unlawful means.
● Proven through circumstantial evidence, don’t need anything in writing.
○ Causation not necessary to prove.
● MR: specific intent required for ALL conspirators to commit the crime.
○ As soon as they agree to commit the offense, conspiracy has formed.
● Actus Reus: minimal required, Jx are split:
○ Some states require an overt act, lower than substantial step
○ Others require only an agreement, not an act.
■ Agreement exists even if not all parties have knowledge of every
detail, just need to be aware of the essential nature of conspiracy
■ Don’t need to agree on each and every part of crime, it can be
inferred from mutual, implied, understanding.
● Bilateral vs. Unilateral Conspiracy
○ Bilateral: A Jx which requires that each member of a conspiracy have
proper MR to commit the offense.
■ Both must sincerely and honestly agree to commit the conspiracy.
● If 1 person no MR, let off the hook. Other MR person may
then be charged with solicitation or attempted conspiracy.
○ Unilateral: a single conspirator having proper MR is sufficient to hold all
conspirators liable.
■ A/B is guilty regardless of B’s intentions. Even if B thinks it's legal.
○ Pinkerton Liability (rare): a co-conspirator is not only liable for the crime
he encouraged, but ALSO any and all offenses that were the natural and
probable consequences committed in furtherance of that crime. (rejected by
MPC)
■ Elements: in the course of, in furtherance of, foreseeable
● “Could be reasonably foreseen as a necessary or natural
consequence of the unlawful agreement”
■ Policy debate: D now can be charged with crime that requires intent,
even though he was only negligent.
● Heavily criticized, can be convicted of someone’s actions
with whom you’ve never meant.
■ Difference between accomplice and co-conspirator.
● Pinkerton must be IN FURTHERANCE of the crime, if
co-conspirator tries to stop the crime, not applicable.
● But applicable as an accomplice, natural and probable
consequences.
● Wharton’s Rule: there can be no conspiracy if the crime requires 2 people to
commit the crime
○ Ex: A must sell drugs to B for a crime to occur, not conspiracy.
■ BUT if A and B conspire to sell drugs to C, = conspiracy.
● § 5.03: Conspiracy
○ Similar to CL.
○ Unilateral Rule
○ No Wharton’s limitation
○ Rejects Pinkerton
● § 5.03 (3): solicitation merges into conspiracy when a person accepts (all inchoate
crimes merge with substantive offenses under MPC)
○ But conspiracy and solicitation merge together so can’t charge D for both
ACCOMPLICE LIABILITY (vicarious liability)
○ Need actus reus and mens rea for each accomplice or a substitute like
pinkerton in a conspiracy or natural/probable consequences doctrine.
■ Sometimes both pinkerton/natural apply to same party!
○ Aiding and abetting a criminal
■ Accomplice: a person with the purpose of promoting an act, they aid,
agree or attempt to aid in planning/committing a crime.
● “I’m available to help!” - sufficient for accomplice
● Knowledge or purpose may enough under CL
● MPC only requires purpose.
○ Without reason to know that the car was being used for
robbery, no Jx would find the lender an accomplice.
● Can be an accomplice to a crime that only requires a reckless
mens rea.
■ Note: mailing drugs doesn’t make UPS driver an accomplice, but the
man who mailed the drugs could be, also paying ransom not guilty.
○ A person who is an accomplice after the fact is not guilty of the whole
crime but if they neglect to call police, can be charged for lesser sentence.
○ ACTUS REUS: physical act, encouragement, omission (where there is a
duty to prevent a crime)
○ Natural/Probable Consequences Doctrine: applies to aiders and abettors,
responsible for all natural/probable consequences the accomplice
encouraged or aided.
○ MPC 2.06: requires purpose to commit crime, knowledge is not enough.
■ Wouldn’t be fair to charge a store clerk who believed they were
selling sugar instead of cocaine
■ ACTUS REUS:
● Solicits another to commit the offense, aids or agrees to aid
the offense, has a legal duty to prevent commission of the
fence but fails to prevent the crime from happening.
■ MENS REA:
● With the purpose of promoting/facilitating the commission.
● CASES
○ State v. Carson: D is responsible for all natural and probable consequences
that came about as a result of the crime he committed even if D didn’t
intend such crimes.
○ State v. Sharma: natural and probable consequences not fair here. To
convict D guilty of attempted murder, need to show that he had intent to
kill.
■ Not enough that other people had intent to kill.
○ Commonwealth v. Roebuck: aiding and abbetting someone’s recklessness is
valid under MPC. Don’t need to have intent to commit something reckless
or negligent.
■ Can be an accomplice of manslaughter if you participate in reckless
behavior.
DOUBLE JEOPARDY
● Prohibits multiple trials or punishments for the “same offense.”
○ Use Blockburger to determine what offenses are different.
● Blockburger Test for Same Offense: every crime in every state can use this test,
facts don’t matter.
○ Offenses are different as long as each offense requires proof of an
additional element.
■ Attempting doesn’t count because its not an additional element of
attempt that the property not be taken. Can’t be charged for both.
○ If a D has already been in jeopardy for the same offense, D can’t be put on
trial or punished for the same offense.
■ Look out for a prior punishment/conviction in the facts of the case
● Exceptions: same sovereign rule
○ Different sovereigns might punish/prosecute someone for the same offense,
but the same sovereign can’t do that.
○ If D waives jeopardy, ex: appeal
○ If the gov appeals for a legal issue, not factual, no double jeopardy.
■ If factual, called collateral estoppel = can’t run the same evidence
against you.
● Double Jeopardy is permissible (not common) when:
○ State to federal
○ State A to State B
○ Indian nation or tribe
● IMPERMISSIBLE:
○ DC (or other territory that’s not a state) to federal
○ Military to federal civilian
○ Municipality to state
CASES
● Ashe v. Swenson: D is acquitted for selling drugs, can’t be tried for perjury later.
○ If you were found not to have sold drugs, can’t be charged for repudiation
of that statement after the fact, same set of facts.
○ Michigan v. Evans: D accused of burning a vacant house in Detroit. Trial
court required P to prove that building wasn’t a dwelling, this wasn’t an
element of the crime.
■ Due to extra element which P didn’t prove, court granted D’s motion
for acquittal.
■ Holding: double jeopardy bars retrial! The acquittal was based on
facts, and not merely procedural. Therefore, D can’t be tried again.
● P is responsible for the jury instructions. If they mess up, no
sympathy.
■ Ex: new witness wants to testify after acquittal, DJ prevents.
EX POST FACTO
● Applies to all state and federal CRIMINAL law, not judicial opinions.
○ Anything that retroactively:
■ Makes criminal now what wasn’t criminal when crime was
committed
■ Aggravates a crime
■ Increases punishment of the crime
■ Reduces evidentiary elements or requirements: (allows for less or a
different kind of testimony) than what was required at time of
offense.
CASES:
● Carmell v. Texas: before 1993, a victim under the age of 18 could give testimony
and that testimony could not alone convict D. Now, that testimony alone can
convict D.
○ Holding: no ex post facto here, merely procedural. Didn’t alter the
punishment or elements needed to convict.
● Hopt v. Utah: witness competency rules were not ex post facto.
○ At the time of the offense, people with felony convictions couldn’t testify,
now they can.
■ Holding: merely procedural, not ex post facto. Doesn’ change the
burden.
DEFENSE CHECKLIST:
● Self defense
● Bilateral Jx- can’t convict unless both.
● Vague - statute is vague because “x” could mean a lot of things in this context.
● Entrapment
● Year and A Day: mostly gone. Doesn’t exit in MPC, but could say that you need to
research it, because every state has the power to adopt the MPC and then add this
rule.
● JX: state has no power to punish people for committing a crime on federal
property.
● Double Jeopardy: threaten AND fear are practically the same meaning. But go
through arguments. Maybe one is wholly included in the other with respect to that
element.
● Accomplice vs. co-conspirator:
○ Crime must happen to be guilty as an accomplice.
■ But if it does happen, can be charged with conspiracy and robbery.
○ If crime doen’t happen, co-conspirator can still be guilty.