Criminal Law Outline
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I. Criminal Law
A. Players
1.
Defendant – Wants a fair Trial. A person or a corporation, though for a corporation the
theories of punishment are more difficult.
2. Victim(S) – Wants retribution, but no direct role in trial
3. Police – Catch the culprit, gather evidence
4. Defendant’s Attorney – Advocate for D
5. Prosecutor – Advocate for the State, Society. Put away guilty parties. Controls the
direction of the case.
6. Judge – Interprets the laws for the Jury
7. Jury – Decides the facts and applies them to the Jury Instructions.
8. Appellate Courts – Typically will only look to the jury instructions, not the sufficiency of
the evidence.
B. Criminal Law v. Torts
1. In torts a party is suing a another party in civil court for their own interest. In criminal law
the stakes are much higher. Society has an interest in preventing some kind of conduct and
has passed laws against it. When a party breaks one of these laws Society has decided to
punish them for their breach.
2. Differences
a. There is a great social stigma from being a criminal
b. The typical punishments are more severe
c. Typically prison is a penalty whereas torts are usually money.
C. Malum
1. Malum in se – Bad in itself. Murder, assault, etc.
a. Felonies.
2. Malum Prohibitum – Regulatory Crimes. Parking, fines, etc.
a. Misdimeanors.
II. Purposes of Punishment
A. Retribution—Punishment because the defendant deserves to be punished for doing some action; eye
for an eye; one of the most powerful of purposes.
1. Reasons: 1) Society’s denunciation, 2) Send a message, 3) Revenge. Backward looking.
2. Criticisms:
a. Can’t really pay back, as taking an eye for an eye just leaves everyone blind.
Legitimizes vengeance.
b. Vengeance may not change anyone else’s behavior; intentionally inflicts pain even
when it cannot be shown that punishment will promote the greater good.
c. Who gets to decide morality? Is it fair?
B. Deterrence—Punishment for the utilitarian purpose of providing a disincentive for the defendant OR
others to commit future crimes.
1. Reasons: Utilitarian—Make the cost outweigh the benefit, economic pain v. pleasure
analysis.
2. Two types
a. General deterrence—towards society as a whole to deter others from committing a
crime.
b. Special deterrence—towards a specific individual from them committing a crime.
3. Criticisms
a. Emotionally based crimes would not be deterred as these sorts of crimes are not
based on rational thought
b. Kant’s Argument — General Deterrence is fundamentally wrong: Punishment should
never be administered to an individual merely as a means for promoting a larger
goal.
c. Because people generally refrain from crimes on a moral ground, threats of penalty
have little influence
d. How much is enough? To believe in general prevention is to accept brutal penalties.
e. Statistics suggest that punishment has doubtful deterrent effect as her forensic friend
has stated that we have decided on whether to commit murder or not by the age of 5.
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4.
Most effective for white-collar crimes are for deterrence.
a. I.e. insider trading, etc.
C. Rehabilitation—Punishment to correct criminal behavior
1. Reasons: Treat the cause of the crime, not the outcome. People commit crimes for specific
reasons, and if we treat those reasons instead of the crime, we can eventually rehabilitate
the people out of committing crimes.
2. Criticisms
a. Punishment may actually cause more crime than prevented as people learn crimes in
prisons.
b. Paternalistic since society assumes that people can be reconditioned instead of
changes coming from within.
c. Differs per person, so difficult to assess a general trend
d. Only works in theory; in actuality, we don’t rehabilitate
e. Wrongfully allocates resources to those who least deserve them
f. We are unwilling to spend the money
D. Incapacitation—Punishment to prevent defendant from causing future harm. Lock them up so
nobody can be harmed.
1. Reasons: Keep criminals out of society.
2. Criticisms
a. Prisoners can still commit crimes in jail and much does occur there.
b. Gives up hope on these people ever being part of society
c. Overcrowding and costs are ever present.
d. Sentence lengths can be overboard
E. Case examples:
1. Regina v. Dudley & Stephens, Queen’s Bench, 1884—Retribution: 2 seamen stood trial
for murder of fellow lifeboat passenger whom they killed and ate when it appeared they
would otherwise die before rescue. Convicted because it was necessary to send message
that D’s conduct was wrong. Court afraid of the Social Darwinism that was taking hold.
2. United States v. Bergman, 1976—Retribution: Rabbi/Philanthropist convicted of
Medicaid fraud. Two grounds justified sentence; General deterrence and retribution. Rabbi
doesn’t fall under Kant’s argument since he did do something wrong. Retribution
necessary to proclaim that the offenses were grave and white collar crime not okay.
3. Bowers v. Hardwick (what do we punish?), 1986—Deterrence: Respondent was charged
with violating the Georgia statute criminalizing sodomy by committing the act with another
adult male in his home. Respondent suggests that the law in Georgia is based upon an
inadequate rationality that it is immoral and unacceptable activity. However, since law is
constantly based upon notions of morality, disqualifying this law would invalidate all laws
representing moral choices. Law reflects morals.
F. Overcriminalization and Legality
1. Dangers of over criminalizing:
a. lack of consensus about what is moral, see Bowers;
b. lack of respect for law when not enforced;
c. dangers of discriminatory enforcement;
d. diversion of limited resources as only 2% of crime is prosecuted;
e. invasion of constitutional rights;
f. ineffectiveness of deterring
2. Legality: a person may not be punished unless that person’s conduct was defined as
criminal before defendant acted
3. Shaw v. Director of Public Prosecutions, 1962—Deterrence: Convicted of several crimes,
including “conspiracy to corrupt public morals.” Vague nature of charge allowed jury to
decide case by case basis.
III. Actus Reus
A. Positive Act
1. Voluntary acts - MPC 2.01(1)—brain is engaged. Voluntariness is defined as any act that is
the result of conscious and volitional movement. Includes everything that is not
involuntary:
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2.
3.
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Involuntary acts - MPC 2.01(2)
a. Reflex or convulsion
i.
People v. Newton,1970—D shot police officer after being shot himself.
Claims he was unconscious at the time his hand reflexively pulled trigger.
Allowed to argue to jury that there was no voluntary A.R.
b. Unconsciousness or asleep (somnambulism)
i.
People v. Cogdon—D killed her daughter while sleepwalking
c. Hypnosis (most jurisdictions have NOT adopted this as basis for involuntary act)
d. Not a product of defendant’s determination
i.
Martin v. State, 1944—If D is physically moved by another, there is no
A.R. D was convicted of being drunk on public hwy after police forcibly
moved him from his house and placed him there. Court held that he was
not volitionally there, thus he could not be punished.
ii.
Winzer v. Chief Constable of Kent—Winzer taken to hospital, but asked
to leave for being drunk; police were called when he was slumped outside
on a seat in the hospital corridor. He was not there of his own volition.
Stretch out time—to decide whether act was voluntary or involuntary
a. Epileptic reflexes—if D is aware he is susceptible to reflex or seizures, the court may
stretch the period of the AR to include time when D knowingly took the risk of an
attack.
i.
People v. Decina, 1956—D knew he was subject to epileptic attacks but
decided to drive anyway, he had an attack, kills another. D committed
VOLUNTARY act because the A.R. began when he decided to drive with
his condition.
B. Omission
1. General Rule: No legal duty to help. Failure to act is not a sufficient A.R.
a. Pope v. State, 1979—D witnessed beating of child, failed to come to child’s aid,
child died. D had no criminal liability because she had no specific duty to come to
the child’s aid. Would result in diminished freedom.
b. Jones v. United States, 1962—10 month old baby died while living in D’s house
(unrelated), from abuse and mistreatment, even though D had means to provide food
and necessities. D’s conviction overturned because jury was not instructed that he
must first have a legal duty to help before he can be found guilty.
c. Kitty Genovese case, 1964—woman stabbed to death while numerous witnesses
watched and failed to help. No legal duty to help.
d. New Bedford rape case, 1983—woman gang raped in tavern while patrons
watched. No legal duty to help.
2. Exceptions
a. Statute imposes a duty to care for another
b. Status relationship—where some freedom is given up with another. Husband-Wife,
Parent-Child, Master-Apprentice, ShipMasters-Passengers, Innkeeper-Inebriated
Customers.
c. Contractual agreement for a duty of care for another
d. Voluntarily assumed care and then isolated them:
i.
Regina v. Stone, 1977—part time care of co-occupant triggered duty of
care
ii.
People v. Oliver, 1989—inviting intoxicated person into home away from
others triggered duty of care
e. (Put in peril—makes it a positive act)
i.
Jones v. State, 1942—D’s rape of 12 year old girl triggered duty to save her
when she jumped into a creek to kill herself.
ii.
Commonwealth v. Cali, 1923—D accidentally caused fire, then did not put
it out so that he could collect insurance money
3. Rationale for general rule
a. American tradition of individual freedom
b. Difficulty of knowing how much help one must provide others
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c. Fear of diverting attention from perpetrator of crime to the bystander
d. Possibility that Good Samaritans may face undue risk of harm
4. Criticisms
a. There is no moral difference between failing to help when one can do so with no
peril to oneself and actively causing the harm
b. Ingrains callousness and indifference into how members of society interact with each
other
c. Emboldens violators to commit more crimes because they know people are not
required to assist
5. Good Samaritan laws—a few jurisdictions have adopted Good Samaritan laws that impose
an obligation to rescue a person in emergency situations. Some have reporting laws.
European countries enforce a general duty to help. Vermont does.
6. Misprison of felony—at common law, one who fails to report a crime could be charged
with a separate crime of misprison of felon. The common law misprison is no longer a
crime in American jurisdictions. The statutes, though, require active concealment of the
felony.
7. Euthanasia – Really two categories. Don’t resuscitate and pulling the plug. The difference
is between passive and active. The prior is likely okay, but the later is more likely to result
in criminal conduct.
8. Status offenses—cannot be convicted merely for having a status or condition.
IV. Mens Rea—State of mind; culpability (M.R.)
A. Reason we require mens rea—No purpose would be served in punishing people who did not mean to
commit a crime. MPC 2.02(2). Motive is not the same thing as M.R.
B. Look to the language of the statute for the requisite M.R. Some laws have multiple requirements. The
material elements are those that the M.R. requirements attach to, others are jurisdictional.
C. Levels of Mens Rea:
1. Purposefully— D’s goal or aim is achieve a particular result, specific intent.
2. Knowingly— D is Virtually certain that conduct will lead to result
3. Recklessly— D is Aware. Common law maliciously; consciously disregards a substantial
and unjustifiable risk that conduct will lead to result. Default standard
4. Negligently— D is Unaware. Should have been aware as a Reasonably Prudent Person
would have been.
a. Mens Rea cases:
i.
Regina v. Cunningham, 1957: D almost asphyxiated a woman when he
tore a gas meter off a wall adjoining her bldg. Court found he need only
have acted recklessly. [Maliciously was the actual word used, but it is a very
bad word.]
ii.
Regina v. Faulkner, 1887: Sailor went into ship to steal some run, lit a
match to see, rum caught fire, ship destroyed. Court found he would have
to have acted recklessly to disregard the risk.
iii.
United States v. Jewell—Jewell doctrine, ostrich defense. Statute requires
knowingly {knowingly transporting marijuana in his car from Mexico to the
United States}; he says he didn’t know the drugs were there. Court finds
that he purposely avoided knowing, so we’ll call it knowing or estop them
from asserting their lack of knowledge.
iv.
Regina v. Prince, 1875—“Honestly” believed girl was 18, when she was,
in fact, 14. He did take her and she was underage, but says he was ignorant.
He didn’t know he was doing something wrong. Issue is does the D have
the mistake effect defense? Or, does he need to know her age was
underage? Court says you don’t need to know, so the mistake defense
won’t work.
v.
Santillanes v. New Mexico-- Uncle and nephew in a wrestling altercation,
uncle cut nephew’s neck with knife. There has to be a higher showing of
carelessness than mere negligence.
5. Strict Liability—no mens rea required, guilt regardless
a. Public welfare offenses—regulatory
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i.
b.
c.
d.
Highly regulated industry
1. United States v. Dotterwich, USSC 1943: Dotterwich
convicted as president of company for corp’s mislabeling of
medication. Is Pres guilty for violation without knowledge that
shipment was mislabled? SC says yes, regulation by way of
penalizing those who were not aware but could have been aware.
Policy interest of the larger good, puts the burden of acting at
hazard on a person standing in responsible relation to public
danger.
ii.
High Risk activity, Affecting public welfare
1. United States v. Balint, USSC 1922: D’s indicted for violation
of Narcotic Act of 1914. Are D’s guilty of violation if they did
not have knowledge that they were selling prohibited drugs? SC
says yes, proof of knowledge not required by statute, based on
legislative intent, social betterment.
iii.
No mens rea language in statute
1. Morisette v. United States, USSC 1952: Morisette indicted for
violating law that made it a crime to knowingly convert gov’t
property. Is he guilty based upon his intent to take the property
even if he did not have knowledge of facts that made the
conversion wrongful? SC says no, D must be proven to have
had knowledge of the fact (material) that the property had not
been abandoned by owner [NOT strict liability].
2. United States v. US District Court for Central District of CA
(Tracy Lords case)—Ds charged with knowingly using underage
actress in porn films showing her in compromising acts. Ds did
not know she was underage, and did all they could in good faith
to discover her age. Legislation was to be strict liability, but
overruled here because they truly did attempt to find her age,
and it impinges on 1st amendment free speech. As a result, the
defense will bear the burden of proving a good faith mistake.
Prosecutors don’t have to prove intent, but defendants have to
prove they really made a mistake. It is up to the jury to decide.
iv.
Large number of prosecutions
v.
Relatively light penalties
1. Staples v. United States, USSC 1994: D convicted of owning
semiautomatic firearm unregistered in violation of National
Firearms Act. Is D guilty of violation if he did not have
knowledge that he was violating it? SC says no, the penalty is
severe, and so it requires proof that D knew he possessed not just
a gun, but a machinegun.
Morality offenses
i.
Statutory rape
ii.
Bigamy
iii.
Adultery
Vicarious Liability—a defendant’s responsibility for criminal acts of another without
proof that the defendant had a culpable mens rea as to those acts.
i.
State v. Guminga, SC of MN 1986: D charged based on employee serving
liquor to a minor and allowing minor to pay. Does this statute requiring
vicarious liability for an employer violate due process clauses of
constitutions? SCMN says yes, criminal penalties based on vicarious
liability are violation of due process and that only civil penalities would be
constitutional. Intrusion on personal liberty not justified by the public
interest protected.
No defense of mistake or ignorance. Only can challenge whether there was a
voluntary actus reus.
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State v. Baker, KN Ct of App, 1977: D’s cruise control stuck in accelerate
position, drove at 77 in 55. Not a valid defense because he had control over
whether or not to use the CC. (Stretch out the A.R.) Some unexpected
failures preclude a defense, but not voluntary ones. Voluntary, so strict
liability (or per se)
e. MPC 2.05: When culpability requirements are inapplicable to violations and to
offenses defined by other statutes; effect of absolute liability in reducing grade of
offense to violation.
D. Minimum level of Mens Rea—Recklessly. The more serious, the higher the requirement.
E. Material v. Immaterial/Jurisdictional Elements (i.e. Prince & Feola)
1. Material if you need to know it
a. Language of statute
b. Legislative History
c. Public Policy—what is it that makes the conduct morally wrong?
i.
Public Welfare, Highly Regulated, High Volume, High Risk, Small Penalty.
2. Jurisdictional if you don’t need to know it
V. Mistake of Fact
A. General Rule—Ignorance or mistake of fact is a defense when it shows that the defendant did not have
the mens rea for a MATERIAL element of the crime. If defendant does not know something that she
must know to be guilty of a crime, her ignorance or mistake is a defense.
B. Honest mistake sufficient—generally, an honest mistake is sufficient to negate an element of a crime.
Some jurisdictions require an honest AND reasonable mistake.
C. MPC 2.04: Ignorance or mistake as to matter of fact or law is a defense if:
1. (a) the ignorance or mistake negatives the purpose, knowledge, belief, recklessness, or
negligence required to establish a material element of the offense; or
2. (b) the law provides that the state of mind established by such ignorance or mistake
constitutes a defense.
D. Cases:
1. Regina v. Prince, Court of Crown Cases Reserved, 1875: D took underage girl from her
father, claims he did not know she was underage. Is the mistake of fact regarding her age
sufficient to make him not guilty of “unlawfully taking any unmarried girl, being under the
age of 16, out of the possession and against the will of her father or mother”? No, her age
is immaterial, only to reduce the number of cases. The fact that he was already committing
a wrong by taking the girl from her father without consent makes it wrong regardless of her
age.
a. A.R. - Taking Girl
b. M.R. - Knowingly
c. Circumstances – Away from dad w/o permission, Unmarried, Under Age.
i.
Only first two are material facts, other is jurisdictional.
2. White v. State, Ohio, 1933: D leaves pregnant wife, did not know she was pregnant.
Immoral act, suffer the consequences even though actual knowledge may not foresee the
enormity of the consequences.
3. United States v. Feola, USSC 1975: Feola and others assaulted undercover federal agents
when a drug bust went bad. Does the fact that D did not know the buyers were federal
agents make him not guilty of violating statutes against assault on federal officers? SC says
no, that the crime was the assault. The federal officer part was purely jurisdictional.
a. Dissent: Without knowing that the men were feds, the assault was not aggravated,
and should have been tried solely under assault; before there can be a violation of
this statute, the assailant must know the person he assaults is an officer.
VI. Mistake of Law
A. General Rule—Mistake or ignorance of law is not a defense.
1. If it was a defense then it would encourage ignorance of the law.
2. If we let everyone determine their own culture there would be legal chaos.
B. MPC 2.04
1. Negates an element (W/o authority of the law)
2. Estoppel/Reliance
i.
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a.
b.
Erroneous Statute. (Following the law at the time.)
Official interpretation. (Attorney General.)
C. Exceptions
1. Because of mistake of law, defendant lacks M.R. for crime (like mistake of fact)
a. Cheek v. United States, SCt, 1991—D did not pay taxes or file returns after
attending seminars and receiving information from a group that opposes taxation.
He believed that it was unconstitutional and did not apply to him. Convicted of
willfully failing to file under tax law that provides that any person is guilty of a
felony “who willfully attempts in any manner to evade or defeat any tax imposed by
this title or the payment thereof.” Could have paid, then sued to get money back.
b. Regina v. Smith—D charged with damaging property belonging to another when he
damages an apartment he rented. He believed mistakenly that the property was his
under the law. D must know the property belonged to another, so his mistake as to
the legal status of the property was allowed.
c. Liparota v. United States, SCt, 1985—statute governing food stamps “whoever
knowingly uses, transfers, acquired, alters, or possesses coupons or authorization
cards in any manner not authorized by Dept…” could make criminal the use of any
of such products. Thus, not guilty based on the lack of knowledge of the manners
not authorized, lack of M.R..
2. Lack of reasonable notice of the law (due process 5th or 14th Amendment argument)
Regulatory Crime Omission.
a. Lambert v. California—Convict did not know of statute to register within 5 days of
being in Los Angeles. Due process places limitations on the exercise of police
power in that there is an ingrained concept of Notice. Notice is required so that a
citizen has the chance to defend the charges (or alter the behavior).
b. Limited to situations where:
i.
D’s conduct is wholly passive
ii.
No actual notice of the law
iii.
Violation involves a regulatory offense
3. Defendant has been officially misled as to the law by. Estoppel Theory, MPC 2.04(3)(b)(i)(iv)
a. Reliance on invalid statute. Interpretation correct, but law not valid.
i.
Gardner v. People—Ds misread a statute and mistakenly believed that
their conduct was legal. Court insisted that mistake of law is no defense.
ii.
People v. Weiss—Ds convicted of kidnapping a person suspected of the
murder of the Lindbergh baby. D’s believed they had authority of the law.
If they had authority of the law, there would be crime, and so mistake of
law in this case is a defense.
b. Reliance on judicial decision
c. Reliance on administrative order
d. Reliance on official interpretation—highest authority
e. Individual’s Own interpretation is not sufficient, unless Liaparota.
i.
People v. Marrero—NY Ct of Ap., 1987: Marrero was arrested in
Manhattan club with loaded pistol, it was against the penal code for any
weapons to be carried unless by a peace officer. Marrero’s defense was that
he falls under the exception for federal correction officers. Does the
defendant’s personal misreading or misunderstanding of a statute excuse
criminal conduct in the circumstances of this case? No, mistake of law is
no defense (from common law)
4. Cultural Defense: no defense, but may mitigate a D’s punishment, i.e. the case of the
Japanese mother who drowned her child.
5. Magic Words: *Look for language that has “authority of law”
VII. Homicide—The unlawful killing of another human being [A.R.= Killing; M.R.= Depends on degree;
Circumstances = Another human being; Result = Death]
A. Intentional Homicide: Murder—The unlawful killing of another with Malice Aforethought
1. Murder 1
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a.
2.
Common Law—did not divide murder into degrees; all murders were capital
offenses (Death penalty cases). Eventually, recognized the difference between
murder and manslaughter
i.
Carroll—Premeditation: D acted deliberate or with purposeful conduct; No
time is too short
1. Commonwealth v. Carroll—D killed wife who had been
abusing their kids and was upset he would be leaving for work.
After a protracted argument, they went to bed. After 5 minutes
of thought, he reached for a gun that his wife had put at the head
of their bed, shot his wife twice in the back of her head, then
wrapped up her body and dumped it in a desolate place. M1
because cool, deliberate thought.
ii.
Guthrie/Anderson—Premeditation + Preconceived Design; Demonstrated
by these:
1. Planning
2. Motive
3. Manner of killing
1. State v. Guthrie – D with severe emotional issues
regarding his looks stabbed his coworker. They had
gotten along previously, but victim snapped him with a
dishtowel several times, then flipped D on the nose,
which enraged him and he stabbed. No evidence that he
considered or weighed the consequences, no planning, no
motive.
2. People v. Anderson—D stabbed 10 year old girl to death.
She was found nude with over 60 wounds. D had been
living in her home as a boarder; he had been drinking and
lied to family members as they tried to learn her
whereabouts. First M1 conviction, but reversed due to
lack of planning. Seemed so out of control, no clear
evidence of premeditation
b. MPC 210.2: Criminal homicide constitutes murder when (a) it is committed
purposely or knowingly
c. Defenses to premeditation: Diminished capacity and intoxication
Murder 2
a. Common Law--“Malice”; Really a Catch All.
i.
Intent to kill
ii.
Intent to cause great bodily harm
iii.
Gross recklessness (depraved heart)
1. Magnitude of harm v.
Social utility
1. Degree of harm
Benefit to Society
2. Likelihood
Cost of alternatives
iv.
Cases
1. Commonwealth v. Malone—D shoots and kills friend during a
game of Russian Poker; guilty of murder even if he never
intended to kill or seriously injure the victim. Sufficient that he
knows of the risk and disregards it. This was a Gross risk.
2. United States v. Fleming—D drove car recklessly through DC
during rush hour, swerving over the lines into oncoming traffic,
speeding, driving under the influence, lost control and killed
victim. Facts show a deviation from reasonable standard,
without regard for safety of others. CT says they should have
known.
3. People v. Berry—Pit bull mauled a child who wandered into his
area. Implied malice because he was aware of the dog’s
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potential danger, bred and trained to kill, open access to dog’s
area. Conscious disregard w/ no social utility=M2.
4. Commonwealth v. Feinberg—D sold Sterna cans knowing skid
row residents consumed them for alcohol. Not designed for
human consumption, 31 persons died. He knew and
disregarded, so gross recklessness=M2.
b. MPC 210.2: …constitutes murder when (b) it is committed recklessly under
circumstances manifesting extreme indifference to the value of human life.
B. Unintentional Homicide: Manslaughter—Unlawful killing without malice aforethought. Common
Law created and exception or partial defense for the frailty of the human condition. Incomplete
Defense.
1. Voluntary Manslaughter—Provocation/Heat of Passion
a. Actually in Heat of Passion (Subjective)
b. Legally Adequate Provocation (Objection)
i.
Categorical = assault, adultery.
1. Girouard v. State—D killed wife after she berated him, insulted
him, told him she would insult him to his superiors, disparaging
remarks about sexual prowess, so he stabbed her; then called
police in remorse. Judge would not allow provocation defense
because words are not enough; not assault or adultery, so no
defense.
2. Maher v. People—D attempts to kill victim after he first sees
victim entering woods with his wife, and then also hears of their
adultery from a friend. Convicted of assault, reversed when
judges consider it provocation enough to have been lesser
offense if killed. Dissent requires presence to witness the
adultery; else people will kill on mere suspicion.
ii.
Reasonable Person Standard w/ objective physical characteristics taken into
account as they can not be made up. Majority Approach. Almost NEVER
Words. Not Mental Characteristics.
1. Director of Public Prosecutions v. Camplin—D, 15 year old,
kills person who abuses and sodomizes him. Court finds that
age and sex should be taken into consideration.
iii.
EED (Extreme Emotional Distress) MPC, sticks to M.R
1. No specific act required
2. Subjective
3. No cooling time limitation
4. Words alone MAY be sufficient
5. Diminished capacity may be considered
6. Victim need not be the person who provoked the D
7. People v. Casassa—D becomes obsessed with social friend, she
is not interested, so he listens in on her, he breaks into her
apartment, and finally, he tries to win her over one last time,
when she refuses, he stabs her repeatedly. Defense based on
emotional distress considered, but distress was not reasonable,
thus no defense.
c. Insufficient Cooling Time
i.
Expanded in some jurisdictions by:
1. Long smoldering
2. Rekindling
ii.
United States v. Bordeaux—D learned at a party that the victim had raped
his mother 20 years earlier. He later verifies info with his mother, then goes
and attacks and kills victim. Court refused voluntary manslaughter
instruction due to cooling time being sufficient.
2. Involuntary Manslaughter
a. Gross Negligence
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i.
Learned Hand Analysis for Gross:
1. Magnitude of harm
v. Social utility
1. Degree of harm
Benefit to Society
2. Forseeability
Cost of alternatives
ii.
Commonwealth v. Welansky—D owner of New Cocoanut Grove
nightclub. Inadequate emergency exits and generally crowded and unsafe.
D was ill and in the hospital when one particularly busy night, a bar boy
accidentally lit the decorations on fire when fixing a light. Fire spread
quickly, killing hundreds. Even though D was unaware of the risk and was
not even present, he was grossly negligent in its operation. Gross
negligence = inv. man.
iii.
State v. Williams—Native American parents found guilty of manslaughter
when they negligently fail to care for their child who dies from an abscessed
tooth. They didn’t realize how serious it was and they were afraid the
authorities would take their child from them. A reasonable person in their
position would have taken the child to the doctor. This case highlights the
problems in identifying the reasonable person standard.
1. D’s received a very minor sentence.
b. Mere Recklessness
c. An inherently dangerous (item or instrument) stacks the decks against the D.
d. Contributory Negligence not included.
3. MPC—Killing reduced to manslaughter if it is committed under the influence of extreme
mental or emotional disturbance for which there is a reasonable explanation or excuse;
Also, manslaughter if committed recklessly. A separate lesser offense of “negligent
homicide” applies if D acts with failure to appreciate a risk of death of which the actor
should be aware.
C. Felony-Murder—If a D causes a death during the commission of a felony, the prosecution need not
prove that the D acted with an intent to kill; constructive murder doctrine applies because the intent to
commit the felony substitutes for the intent to kill or ‘malice’. A Legal Fiction.
1. Rationales
a. Already up to no good
b. Historically all felonies were capital crimes
c. Retribution
d. Deter dangerous felonies (how do you deter from accidental act?)
e. Ease the burden on Prosecution; probably malice anyway
2. Criticisms
a. Disproportionate to crime; not linked to M.R.
b. Arbitrary, doesn’t always have to be related
c. Can’t deter from accidental act
d. Historical bases are gone; holdover from when all felonies were punishable by death
e. Everything would end up being murder
3. MPC—Compromises—the presumption of malice is rebuttable. Generally not adopted.
4. Requirements to Prove Felony-Murder
a. D committed a felony (some states, the type of felony determines whether this
doctrine applies; BARKRAM trigger M1; all others trigger M2)
b. During the course of the felony, the D or an accomplice caused a death
c. Causation—must prove D caused the death, but includes thin skull rule.
i.
People v. Stamp—D robbed victim at gunpoint. Victim forced to lie on the
floor during the robbery; shortly after D fled, victim had a heart attack and
died. D did not intent to cause the death, but D was still responsible under
the felony-murder doctrine.
ii.
Regina v. Serné—D, who was broke, bought insurance on his house and
items and his imbecile son; then set fire to house, leaving his son to die as
the rest of the family escaped. Instruction that the D was guilty of murder if
he acted with either knowledge that his actions would kill (malice) or an
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intent to commit a felony (felony-murder). Judgment not guilty after judge
expressed doubts as to the f/m doctrine.
5.
Limitations
a. Inherently Dangerous—already caused a substantial risk to human life in the
underlying felony
i.
Abstract (CA views crime in Abstract); Look at the statute and determine if
there is a way to do the crime in the abstract w/o causing harm.
1. People v. Phillips—D chiropractor faced murder charges after
he defrauded a child’s parents into paying him for her treatment
instead of opting for life-saving surgery. Because grand theft,
the underlying felony, is not inherently dangerous, the court
reversed the M2 conviction.
2. People v. Satchel—Ex-felon in possession of sawed off shotgun
is not inherently dangerous because a felon can possess a
weapon without posing danger to human life.
ii.
As Committed; look at crime.
1. People v. Stewart—D had baby less than 2 months of age, went
on a crack binge for 2-3 days, did not feed or care for baby,
which died from dehydration. Not considered inherently
dangerous because it can be violated in the abstract without
endangering human life; but this court decides it is proper to
look at as committed, and it the jury found it to be inherently
dangerous as committed.
2. People v. Hansen—drive by shooting, underlying felony was
discharging of a firearm into inhabited bldg. They said they
don’t think this felony was intended to merge. So they didn’t
use it, and held his conviction.
iii.
Drug Distribution as Dangerous Felony
1. Heacock v. Commonwealth—Cocaine is inherently dangerous
because of its high potential for abuse, so meets inherently
dangerous requirement.
2. State v. Randolph—Death is neither the inevitable nor probably
result of the injection of a controlled substance; however, this
court believes malice can be found due to the warning.
3. State v. Amaro—marijuana dealers surprised by police, one
officer shot by a co-felon after arrest had begun. Chose felony
murder, did not address inherently dangerous limitation.
b. Independent/Merger Doctrine—blocks the most serious felonies from applying; if
the underlying felony is merely a step toward causing death, it merges with the
resulting homicide; In most jurisdictions, the felonies of robbery, burglary,
kidnapping, rape, arson and lewd conduct with a minor are considered
independent—purpose is independent of the homicide
i.
People v. Smith—D was charged with felony-murder based on child abuse
charge. She and mate beat 2 year old for not sitting on sofa, and she died
from respiratory arrest. Court found felony murder did not apply because
they had to determine whether the D acted under circumstances or
conditions likely to produce great bodily harm or death. Proof of deadly
assault was required for underlying felony, so no independent felony.
ii.
People v. Ireland—D faced felony murder charges for drawing a gun and
shooting his wife. The underlying felony was ADW; because it was
integral to the murder, it could not be used as independent
iii.
HYPOS
c. During the course of and In Furtherance of
i.
Duration of felony = Preparation to Apprehension or complete escape
ii.
Who did the killing?
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1.
Agency theory—one of the felons has to pull the trigger
(exception in Shield cases)
1. State v. Canola—Jewelry store heist, store owner and cofelon get into shoot-out, both are killed. Court held under
agency that D was NOT responsible for the death of cofelon because it did not occur by his hand or that of his
agents.
2. Tison v. Arizona--Father in jail and cellmate Randy,
break out of jail by sons bringing arsenal of guns to
escape. Leave the jail, abandon car, proceed to another
car, car gets flat, flag over motorist to steal another car.
Ordered the family into the back seat, drove them further
into desert, ordered them out, exchanged car items,
ordered family to stand in front of headlights. Victim’s
father asked for water and begged not to kill. Raymond
and Ricky go to get water, they heard gunshots. Father in
cold blood wipes out family. Father died in desert of
exposure, Randy and Donald killed in shootout, so
Raymond and Ricky are the only ones left. They weren’t
there and did not pull the trigger. If you had to prove
malice the old fashioned way, would it be tough to prove
it? Yes, so felony murder will get them to M1 and capital
punishment. Was there a reckless disregard? You don’t
have certain malice. That’s why they want to use F/M.
They had a chance to avoid the death penalty, cut a deal,
then reneged on the deal, so AZ reneged and put them
back up on death penalty. Were the killings in
furtherance of the felony? YES, agency theory at the
hands of felons. Ultimately, these guys did get the death
penalty.
2. Proximate Cause theory—responsible for killing related enough
to D’s activity
3. Vicarious Liability/Provocative Act—create atmosphere of
malice (infuses proximate cause into agency—only applies in
agency jurisdiction where they really want proximate cause)
1. Taylor v. Superior Court—D charged with murder of
John Smith, co-felon, ADW against Linda and Jack West.
Attempting to rob liquor store, Wests open fire on felons,
Smith is killed, D is driver outside. Found guilty on
vicarious liability. Dissent—this should be used only
where Ds initiate the gun battle; words not enough.
iii.
Who was killed?
1. Felon dies, who cares? Justifiable homicide; felon’s lives valued
less; death of a co-felon would not be in furtherance of the
felony; and felons assume the risk when they participate.
D. Misdemeanor-Manslaughter (Unlawful Act Doctrine)
1. Limitations
a. Proximate Cause—applies only when a crime committed is the proximate cause of
the death
b. Regulatory Offenses—Restricts malum in se as opposed to malum in prohibitum
i.
State v. Powell—D charged with M/M when 2 Rottweilers killed a passing
jogger; violated a safety ordinance that required leashes. Enacted to protect
the health and safety of community members, so triggered unlawful act
doctrine.
ii.
Commonwealth v. Williams—D was in auto accident, other driver died.
D charged with manslaughter because he was driving with expired driver’s
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license. Court refused to apply the doctrine because the violation did not
lead directly to the death of the careless driver
c. Dangerousness—limited to misdemeanors that rise to the level of criminal
negligence; related strategy to limit to misdemeanors designed to protect human
safety
E. Causation—for crimes that require a result
1. Common Law—most state codes have no explicit rules for determining causation, so it is
still based on common law.
2. Standard Causation Issues
a. But For (Actual Cause)—link in the chain
i.
People v. Acosta—Helicopters collide when following in pursuit of stolen
car on car chase with police officers. Three occupants died. But for the D’s
fleeing from the police, this would not have happened, thus actual cause.
b. Proximate Cause (Legal Cause) (Sufficiently Direct Cause)
i.
Foreseeable harm
1. People v. Arzon—D set fire to 5th floor, a separate fire broke
out on 2nd, trapped the firefighters; one died. Actual cause was
that D was a link in the chain; proximate cause was that it was
foreseeable that firefighters would respond, and that there was
possibility of harm.
2. People v. Kibbe—D’s robbed intoxicated victim, leave him
pantsed on the side of the road on a subfreezing night. A
passing truck struck and killed the victim. Actual cause, but for
their acts, he would not have been in that position Proximate
cause—easily foreseeable that he would die by the side of the
road, not necessary to determine exact manner. Foresee ultimate
harm, not exact harm.
3. People v. Warner-Lambert—When a D’s otherwise socially
useful conduct leads to a harmful result, the court may require
that the actual manner of the harm be foreseeable. D corporation
indicted for manslaughter when a massive explosion killed an
employee. Insurance carrier had warned them of the dangers of
chemicals they used, the court found insufficient evidence that
an act by Ds or their machinery triggered the deadly explosion.
No proof of how the explosion occurred.
ii.
Intervening Act—did any intervening acts break the chain of causation?
Superceding or independent intervening act. If it does not break, it is
dependent or concurrent intervening act
1. Foreseeability of intervening act — if foreseeable, then not
superceding
2. Type of intervening act
1. Acts of nature—ordinary does not break, extraordinary
does break
2. Medical maltreatment—unless intentional, does not break
3. Intervening disease—contracted during medical treatment
do not break unless extremely rare
4. Victim’s acts—only voluntary acts can break the chain
a. People v. Campbell—Victim had affair with
D’s wife; D suggests victim kill himself, gives
him a gun, but leaves the room. Victim kills
himself. D not guilty because he did not kill
another. Voluntary victim’s act broke the chain.
b. Stephenson v. State—Victim kidnapped, raped,
sexually assaulted and wounded, took poison to
escape from the pain. D responsible because she
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took poison under duress, and thus not a
voluntary act.
c. People v. Kern—Howard Beach incident; racist
kids chase 2 blacks across a highway to escape
their attack; one hit by car and killed. D’s
responsible for acts of victim’s because not
voluntary.
d. Commonwealth v. Atencio—D played Russian
Roulette with victim. D’s mutual
encouragement in a joint enterprise was
sufficient to prove proximate cause.
e. Lewis v. State—Russian roulette taught to
victim, but D not in room when victim decided
to play by himself. Victim is killed, D not
responsible for voluntary act of victim.
5. Additional Perpetrators
a. If D’s act would have been sufficient to cause
death, acts by another will not break chain
b. OR, the 1st perpetrator is responsible for an
attempt, and the 2nd us responsible for completed
crime.
6. Failure to act—does not break
7. Concurrent causes
a. Only D who most directly caused is responsible
b. OR, all Ds who jointly participate in the
enterprise are responsible
c. Commonwealth v. Root—Drag race, victim is
killed, D not responsible because the victim
voluntarily created the risk of his own injury.
d. State v. McFadden—Drag race, victim is killed
and kills another. D responsible because of
direct participation in a series of acts that led to
deaths.
iii.
Vulnerability of the victim—thin skull doctrine
1. People v. Brackett—D beat 85 year old woman; she became
depressed and died when she needed to be tube fed. D held
responsible.
2. Regina v. Blaue—Victim refuses medical treatment (blood
transfusion) because of religious beliefs, D still bears
responsibility for ultimate harm
iv.
Transferred Intent applies, both as to person and to crime
v.
Control and policy
MPC 2.03: The conduct is the cause of the result when (a) it is an antecedent but for which
the result in question would not have occurred; AND (b) the relationship between the
conduct and result satisfied any additional causal requirements imposed by the Code or by
the law defining the offense.
Anticipatory Offenses
VIII. Attempt
A. Actus Reus—How much has to be done?
1. 1st step
2. Last step
3. Dangerous Proximity
a. People v. Rizzo, NY, 1927—Rizzo and others want to rob payroll from transporter,
drove around looking for him. He was nowhere near them when arrested. How
close do you have to be to be guilty of attempt? Court calls this mere preparation.
4. Unequivocality test – Dangerous Standard, Res Ipsa Loquitor
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a.
McQuirter v. State, Alabama, 1953—Black man in Alabama in 1950s, charged
with attempt to commit assault with intent to rape; court decides from his acts that
we know the mens rea. Problem here is that there is no actus reus!! But, the bias of
the court decides he had done enough. They say they know the mens rea, so they
don’t really need to have the actus reus. Equivocality test.
5. MPC 5.01 (1), (2): Substantial step strongly corroborative of intent; Combines Substantial
of Dangerous Proximity w/ strongly corroborative of intent of unequivocality
a. United States v. Jackson, 1977—D charged with armed robbery; planning to rob a
bank, he and co-conspirators drove to location, removed license plates, possessed
guns, masks, tools. Apprehended before act; court held that they had taken a
substantial step toward committing the crime strongly corroborative of their criminal
intent.
b. United States v. Mandujano—D convicted of attempting to distribute narcotics
because he agreed to locate a source for an undercover agent and informant to buy
heroin. Even though he never found his source, he had still taken substantial steps…
6. Other common law tests:
a. Indispensable element test—does any indispensable element of the crime remain to
be completed? If one does exist, not guilty of attempt. If all indispensable elements
have been completed, the D is guilty of attempt.
b. Probable desistence test—If D goes beyond the point where someone who wanted to
stop would have stopped, the D meets the AR standard.
B. Mens Rea — Purposefully
1. Smallwood v. State, MD 1996—HIV positive D rapes 3 women. Guilty of rape, but is he
guilty of attempted murder? Attempt must have a purpose, and his purpose was to have
sex, not to murder. Not guilty of attempted murder.
2. MPC 5.01(1)(b)-Knowingly
C. Defenses to Attempt
1. Abandonment: Common law didn’t have a common law doctrine because they had the last
step as the actus reus involved, so it would not be possible to change mind. Now there is
less stringent standard for AR, so there is more chance for abandonment. MPC 5.01(4):
a. Full and voluntary
b. Complete renunciation
i.
People v. Johnston—D entered gas station, pulled a gun and demanded
money; when it turned out to be only $50, he departed, saying just killing.
Court denied renunciation.
ii.
People v. McNeal—D abandons intent to rape victim because she talks him
out of it. Renunciation not voluntary because depended on victim’s
resistance
iii.
Ross v. State—Abandonment allowed when talked out of raping victim;
found to have abandoned of his own free will.
D. MPC 5.05 Criminal Attempt
(1) Definition of Attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of
culpability otherwise required for commission of the crime, he:
(a) Purposely engages in conduct which would constitute a crime if the attendant circumstances
were as he believes them to be, or
(b) when causing particular result is an element of the crime, does or omits to do anything with the
purpose of causing or with the belief that it will cause such result without further conduct on his
part, or
(c) Purposely does or omits to do anything which, under the circumstances as he believes them to
be, is an act or omission constituting a substantial step in a course of conduct planned to culminate
in his commission of the crime.
(2) Conduct which may be held substantial step under subsection 1c. Conduct shall not be held to
constitute a substantial step under subsection 1c of this section unless it is strongly corroborative of the
actor’s criminal purpose. Without negativing the sufficiency of other conduct, the following, if strongly
corroborative of the actor’s criminal purpose, shall not be held insufficient as a matter of law:
(a) lying in wait, searching for or following the contemplated victim of the crime;
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(b) enticing or seeking to entice the contemplated victim of the crime to go to the pace
contemplated for its commission;
(c) reconnoitering the place contemplated for the commission of the crime;
(d) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime
will be committed;
(e) possession of materials to be employed in the commission of the crime, which are specially
designed for such unlawful use or which can serve no lawful purpose of the actor under the
circumstances;
(f) possession, collection or fabrication of materials to be employed in the commission of the
crime, at or near the place contemplated for its commission, where such possession, collection or
fabrication serves no lawful purpose of the actor under the circumstances;
(g) soliciting an innocent agent to engage in conduct constituting an element of the crime.
(4) Renunciation of Criminal Purpose. When the actor’s conduct would otherwise constitute an attempt
under subsection 1b or 1c it is an affirmative defense that he abandoned his effort to commit the crime or
otherwise prevented its commission, under circumstance manifesting a complete and voluntary
renunciation of his criminal purpose. The establishment of such defense does not, however, affect the
liability of an accomplice who did not join in such abandonment or prevention.
Within the meaning of this article, renunciation of criminal purpose is not voluntary if it is motivated, in
whole or in part, by circumstances not present or apparent at the inception of the actor’s course of conduct,
which increase the probability of detection or apprehension or which make more difficult the
accomplishment of the criminal purpose. Renunciation is not complete if it is motivated by a decision to
postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another
but similar objective or victim.
IX. Impossibility – AR + MR, but no result. All purposes of punishment apply. D has done the last act, but for some
reason no result. Difference between these two is really insignificant. Can be manipulated either way. Exact
opposite of Mistake of Fact or Mistake of Law.
A. Factual Impossibility—no defense
1. People v. Dlugash—D charged with attempted murder when he shot a victim who was
probably already dead. Cannot kill a dead person, legally impossible to commit homicide if
person is dead. However, the court found it to be factually impossible because of the fact
that he was dead, he could not kill him. Therefore, attempt.
B. Legal Impossibility—defense; Ticket Scalping example.
1. People v. Jaffe—D purchases rugs he believes to be stolen. In fact, they had been returned
to rightful owners and were no longer stolen. Impossible to receive stolen property that was
not stolen; legally impossible. Could also be characterized as factual impossibility since it
was the fact that it was not stolen that made it impossible.
2. United States v. Berrigan—Imprisoned Vietnam War protestor convicted of attempting to
send letters contrary to prison regulations. These regulations required that such letters be
sent only with the knowledge and consent of the warden. Unbeknownst to the D, the
warden did know. Legally impossible, attempting to do that which is not a crime is not a
crime. Or, could it be factual impossibility because if the facts had been as D believed
them to be, it would have been a crime?
C. MPC 5.01(1)(a) – If the facts were as D believed them to be. It focuses on the D’s MR.
D. MPC 5.05(2)— If no Danger then it is a defense. Mitigation. If the particular conduct charged to
constitute a criminal attempt, solicitation or conspiracy is so inherently unlikely to result or culminate
in the commission of a crime that neither such conduct nor the actor presents a public danger
warranting the grading of such offense under this Section, the Court shall exercise its power under
Section 6.12 to enter judgment and impose sentence for a crime of lower grade or degree, or, in
extreme cases, may dismiss the prosecution.
X. Accomplice Liability
A. Aider and Abetter—not a separate crime, but a theory of guilt to substantive offense
1. Historical—Common law had distinct categories and labels for participants in a crime:
Principal in the 1st degree, Principal in the 2nd degree, accessory before the fact, and
accessory after the fact.
2. Modern—Eliminates the categories, and all persons are considered accomplices or aiders
and abettors except accessories after the fact.
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3.
4.
5.
6.
7.
8.
9.
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Instrument to a crime—If a person unknowingly or unwittingly participates in a crime,
that person is not an accomplice, but is considered a mere instrument by which the actual
perpetrator committed the offense.
A.R.—helping. The slightest act of encouragement may suffice. Mere presence is
sufficient if there is a prior understanding that he is there as a form of encouragement. No
need to contribute—guilty even if help was not needed and criminal result would have
occurred without the assistance. Principle need not be aware. Attempted complicity is
recognized under MPC as accomplice liability. Failure to protect victim—could be based
on omission if there was a legal duty to intervene and D purposely did not do so.
a. Wilcox v. Jeffrey—D knew that Coleman Hawkins was coming to England, met
him at the airport, went to his concert, which was in violation of the Alien Order Act.
By acting in encouragement of the violation by Hawkins D was found to be an
accomplice. (Weak case)
b. State v. Tally—Judge Tally’s sister in law was raped by victim. Her 4 brothers rode
off in search of the victim. Someone found out and sent a telegram, which Tally
found out about, and then sent his own telegram to the operator at the receiving
station, telling him not to deliver the warning. Victim was killed. D aider and
abetter because he helped with purpose for the crime to succeed.
c. Roy v. United States—Informant Peppi Miller approaches Roy to ask about an
undercover buy of a hand gun. Roy told him to return with money; later he returns,
Roy lets him in to see Ross, who pretends to make the sale, but then robs Peppi of all
his money. Roy was convicted as an accomplice; invoke natural and probable
consequence doctrine. Court reversed, stating that without showing evidence of
intent to participate in robbery, the punishment is too extreme as compared to the
crime in which he knew to be involved.
M.R. — 1. Knowingly act; 2. Intent or Purpose for the crime to succeed. Knowledge alone
not enough, must have purpose for the crime to succeed. Mere presence is insufficient
unless there specifically to provide support. Determining purpose — the greater the D’s
stake, the more likely the D has purpose (goes to motive).
a. Hicks v. United States—Hicks charged with aiding and abetting Rowe in the
murder of a white man, considered to have encouraged (“Take off your hat and die
like a man!”); reversed because the instructions misstated the law—to be guilty of
aiding and abetting a murder, the D must speak or act with the purpose to encourage
or assist another in the commission of a crime. The focus must be on the purpose,
not on the effect.
b. State v. Gladstone—Informant went to Gladstone for marijuana; he had none, but
suggested he go to Kent, gave address and drew a map. Court reversed conviction
because knowledge is not enough; evidence insufficient to show purpose for the
crime to succeed. No “Nexus” to show connection between principal and Gladstone.
c. People v. Luparello—D asked friends to help him locate his former lover at any
cost. The friends wind up killing a person in an effort to obtain the information. D
was convicted of murder because the killing was reasonably foreseeable given the
request. Concurrence: Use of the foreseeable consequence doctrine is not based on
mens rea of the D, but on whether the shooter intended to kill. Comparable to felony
murder, inconsistent with purpose of justice system.
Feigned Accomplice—feigning to apprehend a principal not guilty
Excused Principal—Does not depend on conviction of principal. Even if they are acquitted
you can be convicted. i.e. diplomatic immunity or entrapment. If insufficient evidence for
D, AA gets off too.
Defenses
a. Abandonment/Withdrawal
i.
Common law—no defense
ii.
Modern—defense if complete, voluntary withdrawal, with attempt to
prevent crime.
Derivative v. Vicarious—Does not involve imposing liability on one party for the wrongs
of another solely based on the relationship. Aiding and abetting requires culpability and
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conduct by the secondary actor, intentional conduct designed to persuade or help such that
it is appropriate to blame him for what the primary actor does. Cannot be convicted in the
absence of a crime, so derivative means his liability is dependent on the principal’s
violating the law.
B. Conspiracy - Agreement by 2 or more people to commit a crime; Similar to AA as you can be
responsible for the crimes of others, yet this requires communication between both parties. Similar to
Attempt in that the crime need not succeed, yet no step need be taken.
1. Separate crime; can be guilty of both conspiracy and substantive offense
2. Duration—From the time of agreement until abandoned or its objectives have been
achieved. When everyone is in custody or in jail.
3. A.R.--Agreement; may be expressed or implied, proven by concerted action. Mere
presence not enough. Need not know all members.
a. United States v. Alvarez—Ds arranged for the importation of marijuana,
undercover DEA agent acted as part of the conspiracy. He asked Alvarez if he
would be there to unload, who nodded and smiled. His willingness to help off-load
the shipment was sufficient proof that he agreed to take part in the scheme.
Dissent—a nod and a smile should not be enough. Not enough evidence to say that
he had any knowledge of the conspiracy, could have been agreeing to return and
unload appliances.
4. Ongoing conspiracy—Responsible for prior acts of co-conspirators, can be used as
evidence on the conspiracy charge, but no co-conspirator liability for those offenses
5. M.R.--1. knowingly agree AND 2. purpose for the plan/crime to succeed; Purpose may be
inferred when:
a. Direct evidence of participation (i.e. the pimp)
b. Circumstantial Evidence
i.
D has a stake in the venture
ii.
No legitimate use
iii.
Disproportionate volume of business
c. People v. Lauria—D ran a telephone answering service that happened to be used by
prostitutes. D knew that prostitutes used the service because he engaged in their
services. The court held that knowledge alone was insufficient, and could not prove
a stake in the venture or other purpose.
6. Attendant circumstances—If knowledge is not required for attendant circumstances for
the substantive offense, then such knowledge is also not required for conspiracy to commit
that offense.
7. Overt Act (some jurisdictions)—something to show the conspiracy has gotten off the
ground. At common law, no overt act requirement. Modern=required for less serious
offenses.
a. Only one conspirator needs to commit an overt act
b. May itself be innocuous, innocent
8. MPC 5.03(1) Definition of Conspiracy: A person is guilty of conspiracy with another
person or persons to commit a crime if with the purpose of promoting or facilitating its
commission, he: (a) agrees with such other persons that they or one or more of them will
engage in conduct which constitutes such crime or an attempt or solicitation to commit such
crime; or (b) agrees to aid such other person or persons in the planning or commission of
such crime or of an attempt or solicitation to commit such crime.
9. Pinkerton Liability—A conspirator is responsible for all acts of co-conspirators during the
course of and in furtherance of the conspiracy, regardless of whether she knew of or
participated in those crimes. (MPC rejects Pinkerton liability—requires proof of accomplice
liability)
a. Pinkerton v. United States—Daniel Pinkerton was charged with conspiring with his
brother, Walter, to commit tax violations (on production of moonshine). Charged
with substantive offenses committed by Walter, even though Daniel was in prison
and could not have committed the crimes. Because they were in the course of and in
furtherance of the conspiracy, Daniel was liable for the criminal acts even without
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being an aider and abetter. Dissent—need to show aiding and abetting to tack on the
substantive crimes
10. Scope
a. Wheel—Same middleman, must be tied together by common interests in a single
venture (rim). If not, then multiple conspiracies instead of one big conspiracy,
i.
Kotteakos v. United States—32 Ds used same loan broker, Brown, to
obtain false loans. Had no other connection with each other. Gov’t sought
to try all as one conspiracy and charge with all substantive crimes. Court
held that without a rim or a common interest there were only smaller
individual conspiracies.
ii.
Anderson v. Superior Court—D was one of many paid to refer pregnant
women to illegal abortionist. The court found one conspiracy with the
abortionist at the hub because they all shared a common interest in keeping
the abortionist in business.
b. Chain—Conspirators participate in a single conspiracy by performing different roles
along a single distribution line, each responsible for others and their success.
i.
Blumenthal v. United States—Chain of illegal whiskey distribution, each
member of the chain has an interest in the others succeeding, thus one large
conspiracy.
ii.
United States v. Bruno—Chain of drug trafficking, court found one
conspiracy because each knew he was working along a chain of individuals
engaged in a scheme to distribute drugs.
iii.
United States v. Borelli-- Elaborate heroin importing and distributing
operation. A sale or purchase scarcely constitutes a sufficient basis for
inferring agreement to cooperate with the opposite parties for whatever
period they continue to deal in this type of contraband, unless some such
understanding is evidenced by other conduct.
c. Braverman rule — If a conspiracy has as its goal to commit several crimes, it is still
ordinarily viewed as one conspiracy.
11. Parties
a. Gebardi—Victims/protected persons cannot be part of it
i.
Gebardi v. United States—a person that a particular law is intended to
protect cannot be a party to a conspiracy to violate that law. A man and
woman conspire to violate the Mann Act because they agreed to cross state
lines to have sex. The Mann Act was designed to protect women, so she
could not have been a conspirator; without her, there is no conspiracy for
the man.
b. Wharton Rule--if it is impossible to commit the substantive crime without
cooperative action, an agreement to commit that offense is not an indictable
conspiracy (no doubling up)
i.
Exception: If legislative intent clearly intends to allow both
1. Ianelli v. United States—Conspiracy and substantive charge
proper for crime of 5 persons participating in gambling.
c. Bilateral—2 guilty minds; thus if one cannot be prosecuted, no conspiracy.
i.
Feigned conspirator
1. Garcia v. State-- D wanted husband killed. Young went to the
police, offered to call and set up the conspiracy. She was
arrested after giving an undercover cop whom she believed was
going to do the job the first installment of money plus a photo
and a schedule for her husband. Young only feigned
acquiescence. The absence of criminal culpability of Young due
to his feigning agreement has nothing to do with the state of
mind of the D. D intended to conspire, and this unilateral
concept for conspiracy has recently been adopted such that the
culpability of other co-conspirators does not matter to the
culpability of the defendant.
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ii.
Acquittal of all co-conspirators
iii.
Special defenses for one conspirator
d. Unilateral—MPCAs long as F believes she is conspiring with another person to
commit a crime; she is guilty regardless of whether the other person can be
convicted.
12. Abandoning the Conspiracy
a. All together – Must thwart the crime
i.
MPC 5.03(6) – Thwart the crime.
b. To avoid Pinkerton liability – Notify the group or the police.
i.
MPC 5.03(7)(c) – Affirmative act to abandon
13. Statute of Limitations – Tolls from the last act of the conspiracy.
XI. Defenses
A. Justifications - AR + MR, but not culpable because society says you made the right choice.
1. Self Defense
a. Honest and Reasonable Fear
i.
Reasonable person in D’s situation
1. Physical attributes
2. Prior experience
3. Relevant knowledge (Facts before hand)
ii.
An honest but unreasonable fear mitigates the crime granting a partial
defense, i.e. M1 to VM
iii.
People v. Goetz—Goetz shoots 4 black youths with concealed weapon
merely for asking him for $5. Jury acquitted him of assault charges, based
on self defense, honest and reasonable fear; took into account his experience
of being mugged, physical attributes (i.e. clothing, race)
iv.
HYPO: Korean Grocer has a young black girl come into her store. She
appears to be shoplifting. The Korean lady wants to see what is in the
backpack, the girl swings the backpack away. The Korean, fearing because
there had been a lot of grocer killings lately, shoots her. This may be an
honest fear, but is there a reasonable fear? If you look at the prior
experiences (Latasha Harlins, prior to riots. Judge gave Sun Young Do
probation), there is question of how reasonable it was.
v.
Battered Wife Syndrome – want to argue as to get expert testimony. Get
in front of jury so as to define what a RP in that situation would have done.
Courts overwhelming support admission of this evidence as a scientifically
verifiable evidence.
vi.
Other Syndromes – Battered Child, Parent, Holocaust Survivor,
Policeman’s, etc. RP in those situations, all an effort to get the jury to
evaluate D in a more subjective way.
b. Imminent/Immediate use of force (Death or SBH)
i.
Objective requirement; Want to allow for alternatives and this makes it
harder.
ii.
No preemptive strikes
iii.
MPC – Allows for more subjectivity.
iv.
HYPO: Bum outside house looking through trash, looking through yard,
approaching house, scared because of crime in neighborhood, shoots him.
Argument for self defense. She doesn’t have any personal experience,
questionable if it is reasonable. Not even imminent danger.
v.
State v. Kelly—Wife killed her husband with a pair of scissors as he came
at her with his arms raised; claimed self defense based on battered spouse
syndrome. Evidence should be admitted, could have helped decide if
honest and reasonable fear. Upon retrial, the court allowed evidence, but
she was still convicted of murder.
vi.
State v. Schroeder—19 year old inmate stabbed older cellmate because he
threatened to make a punk out of him by morning. No evidence of
imminent threat and therefore not entitled to self-defense.
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vii.
2.
3.
4.
State v. Norman—Battered spouse kills husband while he sleeps; no selfdefense because no imminency. Victim was sleeping at the time of death.
Also, question of whether battering was ever to the level of GBH such that a
self-defense of deadly force would be recognized. Dissent—At no time
was she able to get help. She tried to get help, and he always found her.
She took the opportunity she was afforded to protect herself because the
next attack could be the final one.
c. Not excessive force
i.
Non lethal instigation can not use lethal.
ii.
Proportional escalation.
d. Duty to Retreat—No other choice
i.
Common Law = no duty to retreat; many jurisdictions have added this
requirement
ii.
Duty arises only when D uses deadly force
iii.
Only has duty if D knows he can reach complete safety by retreating
iv.
Castle Exception — No duty to retreat in own home (What is home?)
v.
State v. Abbott—D assaulted victim(s) with hatchet from the start of a fist
fight. No self defense because of duty to retreat.
e. Initial Aggressor /= must not be
i.
An initial aggressor loses the right to use deadly force, but retains the right
to use non-deadly force
ii.
May reclaim right by communicating to adversary intent to withdraw and
attempting to do so in good faith
iii.
United States v. Peterson—D spotted victim stealing wipers off his car,
protested, went back in to get gun. Keitt was leaving when D returned
(Initial Confrontation passed), but then provoked Keitt into returning. Keitt
walked towards him with a lug wrench, and D shot him in the face. Court
held no self-defense because he provoked the confrontation.
iv.
Allen v. State—D chased down roommate and shot her when threatened
with a rake. M1, no self defense because could have been prevented if she
had not followed her.
f. MPC—More flexible, “actor believes that such force is immediately necessary for
the purpose of protecting D against the use of unlawful force.”
i.
Subjective standard, limited by being responsible for reckless or negligent
crimes
ii.
Flexible concept of immediacy
iii.
Protection from: Death, SBH, Kidnapping, forcible sexual intercourse
iv.
Can assert self defense if hit a bystander if not negligent or reckless
Defense of others —A D may use force to protect another person if the D reasonably
believes the use of force is justified; Minority=stand in the shoes of the person being
defended, only if the person defended had same right of self defense.
a. NY – No, MPC - Yes
Defense of property
a. Common law—deadly force was permissible to prevent any felony
b. Modern—may not be used solely to protect property
c. Spring guns—mechanical devices may not be used to defend property if they
constitute the use of deadly force
i.
People v. Ceballos—D set up spring gun to prevent theft of his property
from a garage. Spring gun hits 16 year old who may or may not have
stolen. No self defense because mechanical devices cannot use deadly
force; also, he would not have been allowed self defense if using deadly
force had he been there; not proportional.
Law enforcement Defense
a. Evidence that the Felon is armed
b. Evidence that the Felon just committed a crime involving violence.
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Tennessee v. Garner – Police officer shot a suspect fleeing from a burglarized
home. The man fled even after the officer demanded he stop. Court held that the
suspect was unarmed and so murder not justified. Dissent – Argued household
burglaries inherently pose a risk of serious harm
5. Necessity (Choice of Evils) – You break the law because of no alternative. Self Defense is
similar. Most Jxs don’t allow this in murder cases. Economic Necessity never a defense.
a. Elements:
i.
Choice of evils
1. Must honestly believe they are faced with this decision
ii.
No apparent legal alternatives
iii.
Harm threat must be immediate/imminent
1. (common law is here and now, MPC uses it as a factor in
deciding if you made the right choice, 3.02)
2. Schoon - The more distant your action from the harm the less
likely you will receive a necessity defense. No necessity for
Indirect.
iv.
Choose the lesser harm (objective) – Society determines.
1. Dudley it wasn’t 3 living versus 1, it was 1 versus 1 living times
three.
2. Property always less valuable then life
3. D wants to argue no use of Hindsight while Ps want to argue
this.
v.
Did not bring upon self
vi.
No contrary legislation or legislative intent
b. People v. Unger—Inmate threatened, transferred to minimum security; there
assaulted and threatened; phone call threatening his life for reporting it to authorities.
He escapes in order to save his life, asks for defense of necessity. Court allows
instruction. Dissent worries about the use of this defense if not limited.
c. Borough of Southwark v. Williams—Group of homeless families become squatters
on property of Borough; Borough wants to oust them; they claim defense of
necessity. Court rejects, not in interests of law and order.
d. Commonwealth v. Leno—Ds charged with possession and distribution of
instruments to administer controlled substances. Claim necessity to prevent spread
of AIDS. Court rejects because it is not an imminent or clear threat, and it is up to
the legislature to make changes like this.
e. Commonwealth v. Hutchins—D charged with possession and cultivation of
marijuana. D has a progressive systemic sclerosis which the marijuana puts into
remission, so he claims necessity. Court rejects because it does not outweigh the
potential harm to public. Dissent argues that it DOES outweigh the concerns of the
harm to the public.
f. United States v. Schoon—Ds convicted for obstructing activities of IRS and
disobeying federal officer when they protest gov’t involvement in El Salvador by
wreaking havoc on Tucson IRS office. Court rejects their necessity claim because
by definition, civil disobedience always has political alternatives w/ LB, and thus
does not fit the necessity elements. The more distant your action from the harm the
less likely you will receive a necessity defense.
B. Excuse – Society excuses your conduct for some reason.
1. Duress – Necessity is a justification, Duress is an excuse. Right choice under the
circumstances v. understandable decision under the circumstances. Sliding scale as the
greater the threat the more likely to absolve for a greater crime.
a. Common Law Duress:
i.
Elements
1. Threat of imminent harm
2. To D or close family relative
1. Many jx allow for strangers now.
3. Threat of death or SBH
c.
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1.
2.
Helps ensure against abuse. i.e. I thought Cookie monster
was going to kill me to take my cookies. Wont work.
4. Ordinary person would yield (RP standard)
ii.
Limitations
1. Cannot bring upon self – Knowingly
1. Sends a message, but really open to argument
2. Not for Homicide.
b. MPC Duress:
i.
Elements
1. No imminent requirement (Sliding scale)
2. To D or anyone
1. (not limited to relatives)
3. Unlawful force
4. Reasonable person in D’s situation
1. (person of reasonable firmness in his situation would have
been unable to resist)
ii.
Limitations
1. MPC 2.09(2)(5) Recklessly into situation.
2. No limit on Homicide, move to VM.
c. State v. Toscano— Chiropractor had gambling debt, threatened in order to get him
to help defraud insurance companies. Vague threats, not imminent. Court allowed
duress by adopting MPC, also because the crime was not too serious.
d. United States v. Fleming— D in Pow camp was forced to do things against the
UCMJ i.e. collaboration or face long march north which likely meant his death. CT
(Military) military man not given duress because other military men would not have
reacted the same. An example of where a RP standard cuts against the D instead of
helps since the RP soldier was dying instead of cooperating.
e. United States v. Cotento-Pachon— D forced to swallow balloons of cocaine and
smuggle to US or else his family was going to be killed. Given duress because it
appeared he had no choice and no reasonable avenue of escape. Most people would
do the same.
f. Regina v. Ruzic—Eastern European girl not given duress because the man who
threatened her was not present when she followed through; threat was not imminent.
Insanity – At time of crime. Competency is at the time of crime and punishment (Death
Sentence). Offends Humanity. Legal definition and not medical. The D had the MR and
AR for the crime.
a. Competency – Dusky – Understand proceedings, Participate in defense.
b. M’Naghten rule, plus (common law)
i.
Elements
1. D is Presumed Sane
2. At the time the crime was committed
3. Disease or Defect of the mind
4. Did not know either,
1. Nature or quality of act; OR
2. That the act was wrong (Legally or Morally)
5.
ii.
Irresistible Impulse
1. Unable to control conduct even if a policeman were at the
D’s “elbow”. D lost ability to choose right from wrong.
2. Thin line between unable to control conduct and
unwilling.
6. Deific Command (or put under b)
1. Theory is that if god is telling you to do something then it
supercedes traditional morals.
M’Naghten Case – D shot and killed a man while trying to kill the Prime
Minister. D argued, w/ assistance of best psychiatrists of the day that he
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4.
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was insane and asked for jury instruction authorizing acquittal if he did not
know he was doing a wicked act. Queen pleaded with the House of Lords
for more definitive statement. They gave the above standard.
c. MPC – Old standard based on theory that all insane people are psychotic. Even
schizophrenic people were excluded from it. This standard tries to rectify that as it is
more liberal. Focuses on capacity and not Knowing.
i.
Elements
1. Presumed Sane
2. At the time the crime was committed
3. Disease or Defect of the mind
4. Lacks substantial capacity
1. To appreciate the wrongfulness of his conduct; OR
2. Conform his conduct to the requirements of law.
d. Mental Disease or Defect
i.
Factors ala Green
1. Clear Symptoms
2. Medical evidence
3. Extensive history, or easily faked
4. Didn’t bring onto self.
5. # of potential cases
6. Stigma
e. State v. Blake – D was in and out of mental institutions. Robbed a bank D argued
that they were insane. Court adopts MPC standard.
f. United States v. Lyons – Court cut back on defenses accessibility. Based on
Henkly’s shooting of President Reagan. Irrestible impulse really cut back. Court
worried about excessive use of the defense. Yet it is very unsuccessful in its use.
g. State v. Green – Gives symptoms of a disease or defect. Clear Symptoms, medical
evidence, extensive history, didn’t bring upon self.
h. State v. Crenshaw – D was on a honeymoon with his wife. D killed her and cleaned
up the mess then went to have a beer. D argued insanity. His basis for what was
wrong was his religion. Court does not allow defense because it is not their personal
morals but society’s for what determines a wrong.
i. State v. Guido - ?
Diminished Capacity – Similar to Insanity as it is concerned with a Disease or defect,
except here you don’t have the MR whereas in Insanity you do. Often used when Insanity
fails. If there is a liberal rule for Insanity then DC is harsher and vice versa.
a. Three approaches
i.
Allow for SI to GI crimes
ii.
Don’t allow
iii.
MPC’s approach = apply to all crimes.
b. United States v. Brawner—Medical evidence admissible to show lack of MR for
the degree of crime; can reduce specific intent to general intent if there is a general
intent crime.
c. State v. Wilcox—Diminished capacity not recognized because insanity defense is
not as strict. If the Insanity defense were stricter then this might be possible, but this
jurisdiction won’t allow it due to the need to protect society. Reaction to the twinkie
case in which the guy got manslaughter instead of murder based on diminished
capacity.
d. MPC—full defense, relevant to prove mens rea. Can apply to specific intent and
general intent; this is not often adopted because it allows the D to get off completely.
Intoxication – In old days drinking was a crime so it could not have been a defense. Now
it is. Must overcome intent, not simply liquid courage. Really drunk, as in complete
prostration of the faculties. Negates MR of D.
a. Involuntary—full defense if negates mens rea
i.
Not know you are being drugged
ii.
Pathological effect (MPC 2.08(5)(c))
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iii.
iv.
5.
Duress/Force Effect (Aspirin works like LSD)
Regina v. Kingston—D dropped a mickey in coffee, did not mean to be
intoxicated, proceeded to molest a 15 year old boy, which was
photographed. Court decides that taking away inhibition is not what this is
about; a drugged intent is still intent. It must overcome their intent.
b. Voluntary (specific v. general)—Full defense only when brain damage has occurred,
can reduce specific intent to general; no defense for general intent crimes
i.
Roberts v. People-- one must look at the nature and circumstances of the
assault and his declarations, especially to consider the nature of the intent.
Cannot allow the defense to general because that would allow all barroom
brawls… If he did entertain the thought, though but for the intoxication
would not have acted, he is responsible for the intent as well as the acts.
ii.
People v. Hood—D resisted arrest and shot cop in leg. D charged with two
crimes, Assault with a Deadly wepon and Assault w/ intent to kill. Only get
defense with second one. Purpose and Knowledge requirement 
intoxication available as defense. If Reckless and Negligent  no defense.
Specific intent may be reduced, but general cannot be dismissed.
c. MPC—To be involuntarily intoxicated, you must have been 1) tricked, 2) under
duress, or 3) have a pathological effect. Under both voluntary and involuntary, your
drunkenness has to be complete prostration of the faculties. Liquid courage is not
enough (because intent was formed prior)
Entrapment
a. Federal—Predisposition of the D to commit the crime; exception is when there has
been outrageous government misconduct (judge decides this)
b. California—Is the government conduct likely to induce a law abiding person in D’s
circumstances to commit the crime? Jury decides
c. MPC—California standard essentially, but judge decides. This provides a check on
police power, but prevents areas of extreme indifference to police effecting juries
and acquitting Ds despite bad conduct. Using jury box as statement.
d. United States v. Russell—Undercover agent works on getting meth makers to make
some by providing an ingredient needed. SC decides this is not misconduct because
officers need to be able to gain trust to do their work, and also because the ingredient
was otherwise available to the Ds. Looks to the predisposition of the D to commit the
crime.
e. People v. Barraza— D convicted of selling heroin because officer kept bugging him
until he finally sent a note with her to the dealer. Court looks to the government
conduct, not the predisposition of D. Finds that he was entrapped and was otherwise
law abiding and trying to start a new life for himself.
XII. Rape
A. A.R.—sex; M.R.—Reckless; Circumstances—without consent, by force or fear, with resistance. Some
jurisdictions take out resistance because it does not allow for victims who are too afraid to resist, or
who are paralyzed with fear.
1. Subjective Fear
2. RPP would have feared
3. OR deception designed to cause fear
B. Burden is on the victim
C. By deception—if sex acquired through deception as to the fact, it is not rape, i.e. a doctor says he is
going to stick an instrument in, and instead sticks himself in. Courts are reluctant to add deception to
the circumstances allowed because there is always deception in seduction.
D. State v. Rusk—victim takes D home after being at bar, he insists she come upstairs, she testifies that
she did not want to, that it was the way he looked at her, that she participated in sex only because she
was afraid; asked if she did what he wanted, would he let her go, he had hands on her throat, choking
her lightly. Court says the jury could reasonably find force and fear. Dissent says we should look at
his intent, and the facts do not allow us to infer his intent to rape.
E. People v. Evans—Stranger meets young, naïve Wellesley girl at LaGuardia, pretends to be
psychiatrist, asks her assistance with an article he is writing, takes her to a bar, then to his place, moves
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on her, she resists, then he tells her she failed the test; then changes mode and says she is in his
apartment with a complete stranger, he could kill her, he could rape her, inflicting fear; then becomes
subdued, says she reminds him of lost love, and engages her sympathy, which works because she then
has sex many times with him before she leaves the next morning. Court says that she consented to the
act even though it was achieved through misrepresentation, but this is not the kind of deception that is
considered rape. There was no force, so no rape.
F. Boro v. Superior Court—Victim was deceived into thinking she had a rare blood disease that could
only be cured by sex with a donor injected with serum. She knew she was having sex, but she was
forced by fear into doing it. Some courts now allow deception designed to cause fear because of this
form of force.
XIII. Sentencing
A. Capital Punishment—there was a time when all felonies were capital offenses, then as we went to
different levels of murder, then some went to capital. Now with special circumstances. The death
penalty per se is not per se unconstitutional. Public polling shows support, but misleads because if
given the option of life sentence, the numbers change.
B. Formulaic, discrimination, costs, with mandatory sentences, enormous costs over the years. Crime is a
young man’s game, so we put them in jail for a really long time, so we pay for them for a long time.
C. Grossly disproportionate
1. Gravity of offense
2. Compare to other crimes in same jurisdiction
3. Compare to sentences in other jurisdictions
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