Unit 1
I.
II.
III.
IV.
V.
VI.
Unit 2
VII.
VIII.
IX.
Unit 3
X.
Unit 4
XI.
Introduction
Punishment and Proportionality
Process & Prohibitions
Actus Reus
Mens Rea
a. Intent
b. Willful Blindness
c. Strict Liability
d. Mistake of Law
e. Mistake of Fact
Causation
Homicide
a. Pre-Meditation
b. Voluntary Manslaughter
c. Unjustified Risk-Taking
d. Felony Murder
Rape and Sexual Assault
a. Social Context
b. Law Reform
c. Forcible Rape
d. Consent and Withdrawal
e. Rape by Fraud
f. Statutory Rape
Theft
Defenses
a. Self-Defense
b. Necessity
c. Duress
d. Insanity
e. Diminished Capacity
f. Intoxication
g. Infancy
h. Background / Cultural Defenses
Inchoate and Group Crimes
a. Attempt
b. Assault
c. Solicitation
d. Conspiracy
e. Accomplice Liability
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Unit 1
I.
II.
Introduction
Punishment and Proportionality
a.
III.
GREENAWALT
i. Why and whether social institution of punishment is warranted
ii. Necessary conditions for criminal liability and punishment in particular cases
iii. Form and severity of punishment that is appropriate for particular offenses and offenders
iv. Performed by and directed at agents who are responsible in some sense
v. Involves “designedly” harmful or unpleasant consequences
1. Usually preceded by condemnation and “people” blame person for committing a wrong
vi. Imposed by someone w/ authority to punish
1. As a result of one breaking established rule of behavior
2. Imposed on the “actual or supposed”
vii. If later proven innocent, public exoneration as a form of restitution
b. RETRIBUTIVISM
i. Looks at the past and gives you the punishment you deserve
ii. People who commit crimes deserve to be punished
iii. An evening of the scales of justice
iv. Grounded on notion of moral desert – Moral Blameworthiness
c. UTILITARIANISM – JEREMY BENTHAM
i. What benefits will we derive down the road for punishing this person today
ii. Forward looking – what society gains from punishment
1. Punish people if punishment confers benefits to society
a. Deterrence
i. General – people won’t want to do it if they will be punished
ii. Specific – that person can’t do it again
b. Incapacitation
i. If locked up, can’t hurt society
c. Reform / Rehabilitation
i. If reform individual, society will be safer
2. General Principle: involves the greatest good for the greatest number of people
d. PROPORTIONALITY
i. Sentence must be proportional to the crime committed
ii. 8th A.
1. Gravity of offenses and the harshness of the penalty
2. Sentences imposed on other criminals in same jurisdiction
3. … In other jurisdictions
iii. Ewing v. California (2003) – recidivist steals golf clubs,
1. CA Three Strikes rule
a. O’Connor: not grossly disproportionate
b. Considering whether a sentence is grossly disproportionate:
i. Gravity of offense and harshness of penalty
ii. Sentences imposed on other criminals of the same jurisdiction
iii. Sentences imposed for commission of same crime in other jurisdictions
c. In weighing gravity of ∆’s offense, must place on the scales his long history of
recidivism
PROCESS & PROHIBITIONS
a. CRIMINAL PROCESS
i. Discretion
ii. Role of Fact finder (Jury Nullification)
1. Made possible by double jeopardy clause
2. Shields someone from criminal liability indefinitely
b. CRIMINAL STATUTES
i. Principles of legality
1. Statutory Clarity – Void for Vagueness
a. In re Banks (N.C. 1978) – peeping tom statute NOT overly broad or vague
i. Clarity of statute should be judged in light of its common law meaning,
its statutory history, and prior judicial interpretation
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2.
3.
IV.
ii. The statute in question was sufficiently narrowed by judicial
interpretation to require that the act condemned be a spying for the
wrongful purpose of invading the privacy of the female occupant
b. Muscarello v. United States – “carrying” a firearm
i. Lenity applies when after seizing everything from which aid can be
derived, we can make “no more than a guess as to what Congress
intended”
ii. There must be “grievous ambiguity or uncertainty” in the statute
Lenity Doctrine / Strict Construction
a. Keeler v. Superior Court (Cal. 1970) – unborn fetus, not viable
i. When the legislature couches a statute in common law language, its
intent was to continue those rules in statutory form
ii. Refused to extend definition of human being in CA’s murder statute  it
was later amended to include this
1. To adopt the People’s argument would be an excess of judicial
power
Legality: Against judicial law making
Actus Reus
a.
b.
c.
d.
MPC § 2.01
i. Negative definition – everything that does NOT fall w/in definition IS a voluntary act
Mere thoughts are never punishable as crimes
Knowledge
i. With crimes like possession, only conscious possession counts
Act must be Voluntary
i. Must include both:
1. The conduct; and
2. The harmful result
3. Martin v. State
a.
e.
Involuntarily and forcibly carried to that [public] place by the officer to be in
violation of the statute
ii. Involuntary acts:
1. Reflex / Convulsion
2. Unconsciousness
3. Hypnosis
iii. Self-induced state NOT involuntary
1. State v. Utter (Wash. 1971) – drunk veteran stabs son Volition is required to establish
actus element
a. When the state of unconsciousness is voluntarily induced through the use and
consumption of alcohol or drugs, that state of unconsciousness does not attain the
stature of a complete defense
2.
Omissions
i. Failure to act that can establish Actus Reus
ii. Criminal liability for an omission ONLY attaches when there is a legal duty.
1. Statute imposes a duty
2. Special Relationship
3. Contract
4. ∆ caused danger/risk of harm to another
a. People v. Beardsley – should have been guilty, but he wasn’t…
i. Because she chose to take the drugs, she was essentially choosing to kill
herself, ∆ would have had a duty to care for her because she was
ii. Hard to see how he was not exclusively in control of her care through
that sort of duty, especially when he had her moved to the basement…
5. Undertaking, especially where ∆ leaves V worse off than before “helped”
a.
Jones v. United States
i. Situations where Omissions might constitute a breach of duty:
1. Statutorily imposed duty
2. Special relationship
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3.
4.
f.
V.
Contractual duty to care for the other
Voluntarily assumed care of another and so secluded the
helpless person to prevent others from rendering aid
When a person creates a risk of harm of another
5.
Social Harm
i. Result Crimes
1. Punishing for harm resulting from acts or omissions – “social” harm because it’s from a
crime
ii. Conduct Crimes
1. E.g. driving under the influence of alcohol
a. Hypothetical social harm – other drivers are less safe
Mens Rea – that there must be a “culpable state of mind”
a.
b.
INTENT
i. Common Law:
1. Purpose OR knowledge
a. Results that the actor wants to occur (purpose); and
b. Results that the actor knows are virtually certain to occur (knowledge)
i. Regardless of desire for them to happen
ii. MPC: “MPC is obsessed w/ Mens Rea” – person not guilty unless
1. Acted in one of the 4 mental states
2. w/ respect to each material element of the offense §2.02(2)
a. Purposely
i. Conscious object to engage in particular conduct or cause particular
result
ii. Aware of attendant circumstances or believes or hopes they exist
b. Knowingly
i. Aware that conduct is of that nature or that such circumstances exist
ii. Practically certain that his conduct will cause such a result
c. Recklessly
i. Consciously disregards a substantial and unjustifiable risk
ii. A gross deviation from the standard of conduct that a law-abiding person
would observe in actor’s situations
d. Negligently
3. Default Mental States:
a. MPC: recklessness (and anything more)
b. Common law: Knowledge (and purpose)
GENERAL V. SPECIFIC INTENT
i. Distinction determined from context of particular crime
ii. State 1
1. General Intent:
a. No particular mental state set out in definition of crime
i. Only need to prove actus reus occurred and that there was a “guilty
mind”
2. Specific Intent
a. Mental state expressly set out in the definition of the crime
iii. State 2
1. Specific Intent
a. Can also mean the mens rea element of “intent” (Higher Mental State) 
i. “Purpose” of “Knowledge”
2. General Intent
a. Reserved from crimes that permit conviction on the basis of a less culpable mental
state
i. “Negligence” & “Recklessness”
iv. State 3
1. General Intent
a. Any mental state associated with only the actus reus
i. “Baseline Offense” – Prof. Fairfax
2. Specific Intent
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a.
c.
d.
e.
f.
Specific mental element which is required over and above any mental state
required w/ respect to the actus reus of the crime
i. Possession w/ intent to distribute
ii. Assault w/ intent to kill
iii. Sale of obscene literature to someone under 18
TRANSFERRED INTENT
i. Applicable for crimes, like in Torts
1. People v. Conley – guy ducks and other kid gets cracked
a. For an injury to be deemed disabling, all that must be shown is that the V is no
longer whole such that the injured bodily portion no longer serves the body in the
same manner as it did before
b. Here, ∆’s conscious objective was to engage in conduct that constituted an
aggravated battery
i. Intentionally or knowingly casing great bodily harm or permanent
disability or disfigurement
c. Practically certain that the results were to be caused by his conduct
WILLFUL BLINDNESS – THE “OSTRICH” INSTRUCTION (P 168)
i. MPC:
1. “aware of a high probability” – high probability of the existence of a fact
2. State v. Nations – not adopting willful blindness, as suggested by MPC
a. Knowledge is established if a person is aware of a high probability of the
existence (of the circumstance)
i. Applies to situations involving a matter of existing fact, NOT when what
is involved is the result of ∆’s conduct, necessarily a matter of the future
at the time of acting
b. ∆’s disregard of the risk (of endangering a child) was a “gross deviation” from the
norm
i. HOWEVER, this is merely recklessness – not KNOWLEDGE
3. United States v. Heredia
a. A jury may not find such knowledge if the ∆ actually believed (wrongly) that
there were no drugs in the car; or that ∆ was simply careless
STRICT LIABILITY
i. United States v. Cordoba-Hincapie sets out the common law
1. Statutory Rape & Public welfare offenses
2. Presumption that the crime will require proof of mens rea
3. Need some indication of legislative intent, either express or implied, to say that mens rea is
NOT required
4. The one clue for determining legislative intent is the severity of the penalty
ii. MPC §2.05 – Rejects strict liability
1. Downgrades crimes to “violations” w/ lesser penalties
iii. Staples v. United States
1. Statute is silent as to mens rea for violation of National Firearms Act
2. Court was reluctant to impute the purpose of congress where, as here, it would mean
easing the path to convicting persons whose conduct would not even alert them to the
probability of strict regulation in the form of a statute
3. Imposing severe punishments for offenses that require no mens rea would seem
incongruous
MISTAKE – MPC 2.04
i. Mistake is least likely to assist in crimes of general intent
ii. Mistake of Fact
1. MPC § 2.04 (1) – “obsessed w/ mens rea”
a. If mistakenly think guilty of lesser crime, culpable for the lesser crime (not actual
crime committed) – MPC 2.04 (2)
b. If you can show ignorance or mistake negates mens rea, you will not be convicted
iii. Common Law
1. General Intent
a. Perkins Rule: Only a reasonable mistake of fact provides legitimate defense
b. Moral Wrong Doctrine:
i. Exception to mistake of fact defense:
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ii. If underlying conduct was immoral, courts will sometimes deny mistake
of fact
1. Through the eyes of the ∆
2. When mistake is reasonable, but conduct immoral
c. Legal Wrong Doctrine:
i. Reasonable mistake of fact, but underlying conduct is illegal
2. Specific Intent
a. Either reasonable or unreasonable mistake negate specific intent
i. People v. Navarro (Cal. 1979) – didn’t know he was “stealing” stuff
from construction site
1. Burglary, like theft, is specific intent crime
2. Lacked criminal intent due to mistaken belief
3. A felonious intent can only proven by what the accused knew
4. Honest mistake of fact or law is a defense when it negates
required mental element of a crime
3. Strict Liability
a. No mens rea requirement
b. Mistake not a defense
iv. Questions to ask when determining mistake of fact:
1. Is the offense a general intent offense, a specific intent offense or a strict liability offense?
a. If it is a specific intent offense, does the mistake relate to the specific intent
element of the offense?
i. If YES, determine whether that mistake of fact negates that specific
intent element, and if it does, than the person is NOT GUILTY.
ii. If NO, treat the offense as if it were general intent
b. If general intent, do culpability analysis:
i. Did the defendant act in a moral blameworthy way—was t here a guilty
mind at play here?
1. If mistake was UNREASONABLE, there is a guilty mind and
the person is culpable.
2. If the mistake was REASONABLE, the defendant is not morally
blameworthy and therefore if no culpable – UNLESS
a. The moral wrong doctrine applies or
b. The legal wrong doctrine applies
c. If strict liability offense, mistake is NOT a defense
2.
v. Mistake of Law
1. General Rule: NOT an excuse
2. 3 Exceptions
a. Ignorance mistakes mens rea
i. “Same law” mistake not a defense
1. “Didn’t know what this law meant”
ii. “Different law” mistake  CAN be a defense for specific intent
1. thought you were following different statute
b. Reasonable reliance
i. When a public official tells you it’s ‘ok’
c. Fair notice
i. Lambert v. California (1975)
1. Actual knowledge of a duty to register or proof of probability of
knowledge and failure to comply are necessary for a conviction
of something dealing with “wholly passive” behavior
3. MPC:
a. 2.02(9), 2.04(1), Reliance - 2.04(3)(b), 2.04(3)(a) – Fair notice
VI.
Causation
a.
CAUSE IN FACT – ACTUAL CAUSE
i. Velazquez v. State
1.
There can be no criminal liability unless it can be shown that the ∆’s conduct was a causein-fact of the prohibited result
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2.
a. If the result would not have occurred “but for” the ∆’s conduct
Substantial factor
a. When two ∆s, acting independently, commit two separate acts, each of which
alone would be sufficient to bring about the prohibited result
b. Shortening V’s life will likely be a substantial factor
c.
b.
Oxendine v. State
i. Acceleration is sufficient causation, but aggravation and contribution is
not sufficient causation
PROXIMATE CAUSATION – LEGAL CAUSE – MPC 2.03(2)(B)
i. Generally arise when intervening “but for” occurrence takes place after offender commits actus reus
but BEFORE result occurs
1. Act of god
2. Act of independent 3rd party which accelerates or aggravates the harm caused by ∆
3. Act of omission of the V that assists in bringing about the outcome
ii. Superseding cause
iii. “mushy”, policy-laden determination of most morally culpable actor
iv.
Unit 2
VII.
Homicide
COMMON LAW
MPC
First Degree Murder
Murder – No Degrees
1. Premeditated and deliberate
1. Purposefully or knowingly OR recklessly under
circumstances manifesting extreme indifference to the
value of human life
Second Degree Murder
1. Malice aforethought OR EXTREME
recklessness; depraved heart murder
a.
Voluntary Manslaughter (Murder Mitigated)
Manslaughter
1. Heat of passion/provocation
1. Recklessly or murder under extreme mental or
emotional distress
Involuntary Manslaughter
Negligent Homicide
1. Criminal negligence, “regular” recklessness
1. Homicide committed negligently
PRE-MEDITATION
i. 1st degree murder
1. Premeditation and deliberation
a. e.g. lying in wait, poison
b. planning, motive, and manner of killing that is so precise that it suggests a
preconceived design
2. Certain circumstances might mitigate 1st degree into 2nd degree
ii. State v. Schrader:
1. Premeditation can occur in the twinkling of an eye
2. Not necessary that intention to kill exist for any set length of time prior to killing
a. Only that the intent to kill come into existence at the time of such killing
iii. State v. Guthrie (W.Va. 1995)
1. Premeditation: a sufficient duration for the accused to be fully conscious of what he
intended
a. Must be some period of time of consideration to be premeditation
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2.
Any interval of time between forming of intent to kill and the execution of that intent is
sufficient for conviction of 1st degree murder
iv. People v. Morrin (Mich. 1971)
1. To premeditate is to think about beforehand
2. To deliberate is to measure and evaluate the major facets of a choice or problem
3. Premeditation and deliberation characterize the thought process undisturbed by hot blood –
not in the heat of the moment
4. No way to determine minimum time necessary, but interval must be long enough to “take a
second look”  long enough to think twice before committing
v. Question is often “how long is long enough” to constitute premeditation
vi. Can be convicted of murder based solely on circumstantial evidence as long as jury believes it
1. State v. Midgett
a.
Those accused of first degree murder must be given the benefit that they be shown
substantial evidence to have premeditated and deliberated the killing, no matter
how heinous the facts may otherwise be
2. State v. Forrest
a.
b.
c.
Circumstances to be considered for conviction of murder based on
circumstantial evidence:
i. Want of provocation on part of deceased
ii. Conduct and statements of ∆ before and after the killing
iii. Threats and declarations of ∆ before and during the course of the
occurrence giving rise to the death of the deceased
iv. Ill-will or previous difficulty between the parties
v. Dealing of lethal blows after the deceased has been felled and rendered
helpless
vi. Evidence that the killing was done in a brutal manner
COMMON LAW – “PLAIN OLD MURDER”
i. Almost always 2nd degree murder
ii. Requires proof of “Malice Aforethought” - 4 types of murder, generally:
1. Intent to kill
a. Either purposely or knowingly that the death would almost certainly result from
actor’s actions
b. Express Malice:
i. Intent to kill, or
ii. Intent to cause grievous bodily injury
c. Implied Malice
i. Depraved Hear murder
1. Abandoned or malignant heart
a. Act that is conscious disregard of value of or danger to
human life
2. Intent to cause grievous harm
a. Purposely or knowingly
3. Depraved heart murder – don’t need to be Scar from the Lion King
a. Unintentional killing
b. Extreme Recklessness
i. Conscious disregard of a risk – MPC: subjective
ii. Extreme indifference to the value of human life
c. People v. Knoller (Cal. 2007) – dogs
i. Implied malice requires ∆’s awareness of the risk of death to another and
that they act w/ conscious disregard of the danger to human life
1. Risk of serious bodily injury suffices
4. Intent to commit a felony
VOLUNTARY MANSLAUGHTER
i. An intentional homicide done in a sudden heat of passion caused by adequate provocation before
there has been a reasonable opportunity for the passion to cool
1. Girouard v. State (Md. 1991)
a. Rule of Provocation
i. Must be Adequate Provocation (examples):
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Discovery of a cheating spouse – often no longer adequate
Mutual combat, e.g. ∆’s illegal arrest
Assault and battery
a. Extreme assault and battery on ∆
b. Injury or serious abuse of a close relative of the ∆
4. Mere words are never enough
ii. Heat of passion
iii. Before passions cool / right after the provocation
iv. Causal connection between provocation, passion, and the fatal act
ii. MPC – on Manslaughter
1. Words are enough to mitigate murder to manslaughter (UNLIKE the common law)
2. Victim does NOT need to be the one who provoked the ∆
3. ∆ could have been mistaken over the fact of whether or not the victim provoked the ∆
4. Does NOT have to be a sudden provocation
a. Could be a build-up of several things that led to the action
1.
2.
3.
MPC
COMMON LAW
1. Words are enough
2. Victim does not have to be the one that actually provoked the
defendant
3. Defendant could have been mistaken about what it is that
provoke him.
4. Provocation does not need to be sudden – can build up over time
d.
e.
1. Words are not enough
2. Victim does need to be the one the actually provoked the
defendant
3. Defendant could not have been mistaken about what it is that
provoked him
4. Provocation must occur suddenly
UNINTENTIONAL KILLINGS
i. Negligence – violation of duty of care
1. Civil negligence is not sufficient for criminal negligence
ii. Involuntary Manslaughter / Negligent homicide
1. Regular recklessness (not extreme)
FELONY MURDER
i. No mens rea requirement
ii. State v. Fuller
1. Would have been 2nd degree depraved heart murder, but because of CA. state felony
murder rule, it was 1st degree murder
iii. Limitations on the rule:
1. People v. Howard - Inherently dangerous felony
a. Dangerousness in the abstract – e.g. is larceny dangerous?
b. Not just dangerous based on the facts of that particular case
2. People v. Smith – Independent felony (Merger)
a. Not appropriate when the predicate felony is integral to the crime itself
i. E.g. when it’s an assaultive offense
1. An “assaultive” felony is one that involves a threat of immediate
violent injury
2. Elements of the assault were necessary elements of the homicide
ii. To allow such use of the felony-murder rule would effectively preclude
the jury from considering the issue of malice aforethought in all cases
wherein homicide has been committed as a result of a felonious assault
b. May apply when underlying offense was committed with an “independent
felonious purpose”
3. State v. Sophophone – In perpetration/furtherance of felony
a. 2 approaches
i. Agency Approach – Majority Rule
1. Felony-murder does not apply if killing results from lawful acts
by 3rd parties (non-felon  like a cop)
a. Can’t derive criminal liability from an innocent person
b. Based on AGENCY
ii. Proximate Causation Approach – Minority Rule
1. May be held responsible if felon set in motion the acts which
resulted in victim’s death
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a.
Mere coincidence of homicide and felony is not
enough
b. Res Gestae – even if felony is over, felony murder may still apply if the flight is
part of the original felony
c. Accomplice liability
i. Majority rule: does not hold over for felony murder by a non-felon
ii. Minority rule: proximate causation if felon sets events in action
4. Misdemeanor Manslaughter – rejected by MPC
a. Unintended homicide takes place during a misdemeanor
b. Generally limited to inherently dangerous misdemeanors
iv. Capital Murder
1. ¾ states (and federal statutes)
2. ∆ under 18 not eligible for capital punishment
3. evolving standard of decency + legislative trends
VIII. Rape and Sexual Assault
a.
b.
c.
SOCIAL CONTEXT
i. Common Law
1. Established elements of Force and Non-consent.
2. Resistance requirement
a. Older, harsh form has been watered down, but still exists at common law
b. State v. Rusk (Md. 1979) – no resistance, not rape; dissent helped change the
state law to reject resistance requirement
LAW REFORM
i. Rape Shield Laws – State v. Herndon
1. Prevents ∆ from harassing and humiliating complainant w/ evidence of either her
reputation for chastity or of specific prior sexual acts
2. Has no bearing on whether complainant consented to sexual conduct in question
3. Exclusion of evidence keeps jury focused on case at hand
4. Promotes effective law enforcement  V will more readily report and testity if she does
not fear prior sexual conduct will be brought before the public
ii. Prior sexual activity on part of V w/ someone other than ∆ is inadmissible
1. Unless proving pregnancy, source of semen, or other injuries
iii. Push to abandon force and resistance element – Susan Estrich
iv. Gender neutrality in statutes
v. Marital immunity abolished in most states
FORCIBLE RAPE
i. Constructive force
1. Threats of serious bodily harm which reasonably induce fear
ii. Actus Reus of Rape
1. Intercourse
2. Force
a. Actual or
b. Constructive
c. State v. Rusk (appellate decision)
i. Reasonableness of Pat’s apprehension of fear was plainly a question of
fact for the jury to determine
ii. Verbal resistance is in fact resistance
3. Non-consent
a. Susan Estrich
i. “The reasonable woman is not a schoolboy sissy. She is a real man.
b. Forcible Compulsion – Commonwealth v. Berkowitz
i. Forcible Compulsion includes not only physical force or violence but
also moral, psychological, or intellectual force to compel a person to
engage in sexual intercourse against that person’s will]
ii. This case is not one of mental coercion
iii. Appellant’s locking the door cannot be seen as an attempt to imprison the
victim
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d.
iv. No evidence that she could not have removed herself from the bed w/o
risk of harm or danger
1. Cannot be ‘bootstrapped’ into sexual intercourse by forcible
compulsion
v. Non-consensual intercourse is NOT 1st degree rape
4. Modern trend for legislatures codifying common law:
a. “Forcible Compulsion”
i. brings in force and non-consent against the will into one phrase
iii. Mens Rea / Culpability of Rape
1. General intent offense
a. Only a reasonable mistake of fact is a defense to general intent crimes
b. If mistake of fact is unreasonable, there is some moral blameworthiness
CONSENT AND WITHDRAWAL
i. Mistake as to Consent
1. MPC:
a. w/o statutory mental state, prosecutor must prove either
i. Knowledge
ii. Purpose
iii. Recklessness
b. No rape for negligence
ii. Withdrawn consent
1. Withdrawn consent does not allow for rape
2. Crime of rape is committed when victim w/draws consent after penetration as long as she is
forced to commit the act
a.
3.
e.
People v. Roundtree
i. Withdrawal of consent effectively nullifies any earlier consent and
subjects the male to forcible rape charges if he persists in what has
become nonconsensual intercourse
ii. Post-penetration withdrawal counts as withdrawal
b. People v. John Z.
i. Following Roundtree, court concluded that forcible rape occurs when,
during apparently consensual intercourse, the victim expresses an
objection and attempts to stop the act and the ∆ forcible continues despite
the objection
Common Law majority rule:
a. If consent is w/drawn after penetration, it is NOT rape
b. However, ∆ can and often will be convicted of another sexual assault offense
c. or even basic battery offense
RAPE BY FRAUD
i. Fraud in the factum
1. vitiates consent – consent is NOT valid
2. deception causes misunderstanding to the fact itself
3. People v. Minkowski
a. Woman had consented to medical act, not intercourse
ii. Fraud in the inducement
1. does not vitiate consent – does not render consent invalid
2. deception relates to some collateral matter, not thing done
3. Boro v. Superior Court
Fraud in the inducement, believing that having sex with this person will save V’s
life
iii. Impersonating a spouse
1. Majority rule – fraud in the factum, not inducement
STATUTORY RAPE
i. Strict liability – no mens rea required
ii. Prosecutors might exercise discretion
1. When it’s consented to and they’re close in age
2. Might be lighter sentencing
a.
f.
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IX.
Theft
a.
b.
c.
d.
e.
f.
LARCENY – mitigated by good faith belief of claim of right; MPC – exercising unlawful control
i. Set out in Rex v. Chisser (1678)
ii. The trespassory
1. Continuing Trespass Doctrine:
a. The initial trespass continues as long as the wrongdoer remains in possession of
the property that is the subject of the prosecution
iii. Taking and
iv. Carrying away of
v. Personal property
vi. Of another with
vii. Intent to steal
1. Does not need to be a permanent deprivation – People v. Brown
2. Not guilty of theft if ∆ has bona fide belief in a claim of right to the property
a. Breaking down, especially in terms of debt collection
i. People v. Barnett – Mosk, J.’s dissent  armed robbery as a self-help
measure
EMBEZZLEMENT - mitigated by good faith belief of claim of right; debt collection also OK
i. Fraudulent
ii. Conversion of
iii. The property
iv. Of another
v. By one who is already in lawful possession of it
FALSE PRETENSES – gullible V not a defense; no pecuniary loss not a defense
i. False representation of a
ii. Material present or past fact
iii. Which causes the person to whom it is made
iv. To pass title to
v. His property to the misrepresenter, who
vi. Knows that his representation is false, and intends to defraud
1. People v. Ingram
a. Fraud vitiates consent
RECEIPT OF STOLEN PROPERTY
i. Receive
ii. Stolen property
iii. w/ knowledge that is has been stolen and
iv. with intent to deprive the owner
BURGLARY
i. The breaking and
1. An opening created by burglar
ii. Entering of
1. Any part of burglar’s anatomy
2. Even for a moment
iii. The dwelling of another
1. Place of business does not suffice
iv. At night
1. NO LONGER REQUIRED in any state
2. Continuing Trespass  no intent to commit felony during day, but continued access into
the night when felony occurred
v. With intent to commit a felony therein
1. Today, needs to be ‘some crime’
a. At least misdemeanor
ROBBERY
i. The trespassory
ii. Taking and
iii. Carrying away of
iv. Personal property
v. Of another with
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g.
vi. Intent to steal
vii. Taken from the person or presence of the owner
1. Whether he could have prevented the taking as a test
viii. Accomplished by using force or putting owner in fear
1. Threat of harm may suffice
2. Reasonable person standard not applied
EXTORTION (blackmail)
i. Obtaining property by threat of future harm
ii. Often to cause either
1. Economic injury
2. Accuse V of a crime or to divulge disgracing information about V
Unit 3
X.
Defenses
a.
b.
ROBINSON SYSTEM OF DEFENSES
i. Any set of identifiable conditions or circumstances that will prevent a conviction for an offense
ii. Failure of proof
iii. Offense modification
1. Ransom for a kidnapped child
2. Businessman paying extortion payments
iv. Justification
1. Necessity
2. Defense of property / habitation
3. Defense of others
4. Crime prevention
v. Excuse
1. Duress
2. Insanity
3. Intoxication
4. Infancy
5. RSB
vi. Non-exculpatory public policy
1. Statute of limitation
2. Diplomatic immunity
SELF-DEFENSE
i. Elements: - United States v. Peterson
1. Threat
a. Actual or apparent
2. Unlawfulness of the threat
3. Imminent threat of death or serious bodily injury
4. Necessity
5. Objectively reasonable
6. Self-defense by use of deadly force can only be used when it is necessary to save the slayer
from death or serious bodily injury
a. State v. Dill – attempted car-jacking
i. Must be present an attempt by defender to do all w/ in his or her power
consistent w/ his or her own personal safety to avoid the danger and need
to take a life
ii. Here, not eligible for self-defense defense – could have just drove away
ii. “Clean hands” doctrine
1. Only way you get right to self defense is when you’re NOT the initial aggressor
2. If you are, you must “Clearly communication your withdrawal from the altercation”
iii. Retreat
1. If avenue to retreat was not safe, or reasonably appeared to be unsafe, you do not need to
retreat
2. Castle Doctrine:
a. No duty to retreat if attacked in your own home
i. Including curtilage around home
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b. When you’re the aggressor, forfeit the castle doctrine
c. Distinguished from Defense of Habitation
3. Defense of Habitation:
a. At the time of entry one is able to use deadly force to repel an intruder or invader
i. Different states have statutory limits or expansions
b. Majority Rule:
i. Once person in the house, revert to self-defense standard
ii. “May use all of the force apparently necessary to repel any invasion of
his home” – People v. Eatman (ill. 1950)
iii. “if there exists reasonable and factual grounds to believe that unless so
used, a felony would be committed inside” – Falco v. State
c. Minority Rule:
i. Because person already in the house, continuation of invasion of privacy,
and thus can still use defense
4. Common Law retreat
a. “Retreat to the wall”
i. if you have a safe haven available, you must retreat
ii. United States v. Peterson shoots guy in his back yard after he goes
inside to get his gun…
1. Necessity must bear all semblance of reality, and appear to
admit of no other alternative before taking life will be justifiable
as excusable
2. In line w/ strong minority adhering to this common law
principle
3. Any rule of no-retreat, e.g. castle doctrine, is unavailable to the
party who provokes or stimulates the conflict
b. Majority approach: e.g. Florida statute – Stand Your Ground laws
i. Person not engaged in an unlawful activity has no duty to retreat and
has the right to Stand his/her ground and meet force w/ force, including
deadly force if reasonably necessary to prevent death or great bodily
harm to himself or another, or prevent the commission of a forcible
felony
5. MPC:
a. Not obliged to retreat from dwelling OR place of work UNLESS you’re the initial
aggressor OR you’re assailed in your place of work by another person whose
place of work you know it to be
b. Use of Force:
i. Immediately necessary for purpose of protecting oneself against use of
unlawful force
ii. Not concern w/ timing of threat, but w/ necessity of RESPONDING TO
the threat – no imminence
iii. Can’t use deadly force if you, the actor, provoked the use of force against
yourself – United States v. Peterson (D.C. Cir.)
iv. Proportionality
1. Can’t use deadly force to repel non-deadly force
2. May not use deadly force to protect personal property
a. Also cannot threaten deadly force
v. Crime Prevention
1. General Rule:
a. Deadly force cannot be used to prevent a misdemeanor
2. Different Jurisdictions
a. Can use deadly force to prevent any felony
3. Once crime has been committed, self-defense cannot apply
i. People v. Goetz (NY 1986)
1. Must be that ∆ REASONABLY believes  MPC is just
believed (no reasonably)
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a.
Appellate court thought it was wholly subjective, when
it’s not  what a person would think in HIS situation,
not what HE THOUGHT in that situation
2. Determination of reasonableness must be based on the
“circumstances” facing the ∆ or his “situation”, include any
relevant knowledge the ∆ had about that person
3. Not following common law – NY penal statutes allow for
deadly force if someone is committing robbery
a. Different from MPC and Common Law
ii. Jury acquitted in new trial
iii. Should have engaged in “race switching” – ask themselves what they
would have said if the races of the ∆ and the V were switched
vi. BATTERED WOMAN SYNDROME
1. State v. Norman
a.
b.
c.
d.
2.
Abused spouse syndrome
i. Where one spouse has achieved almost complete control and submission
of the other by both psychological and physical domination
ii. Usually associated w/ physical abuse over a long period of time where
abused spouse comes to believe the other is in complete control
Inability of ∆ to w/draw from hostile situation and vulnerability of ∆ to the V are
factors considered in determining reasonableness of a ∆’s belief in the necessity to
kill the V
Rev’d  not imminent danger because he was sleeping
Dissent: the next attack, which could occur at any moment, could be the fatal one,
and is constantly imminent
i. After 2 months of her 6 year sentence, her sentence was commuted by
Gov.
Phases
a.
b.
c.
d.
Tension-building – minor incidents of abuse
Acute battering incident – barrage of verbal and physical aggression
Contrition Stage – apologizes and seeks forgiveness
Cycle becomes more intense, frequent, violent, and often more lethal
i. Results in “learned helplessness”
vii. Imperfect self-defense
1. Not a complete acquittal
a. Some mitigation or relief
2. E.g. murder may be mitigated to manslaughter for a number of reasons:
a. Person had genuine belief that deceased was imminently dangerous, but belief
was unreasonable
b. Deadly force in response to non-deadly assault
c. Slayer was aggressor or provoker
3. Bystanders
a. Justification by means of transferred intent (dependent upon jurisdiction)
4. Defense of Others
a. CAN use deadly force in defense of another
b. Parallels right of self-defense of other party
c. Even if mistaken but reasonably believed
c.
JUSTIFICATION
i. Necessity –
1. Serving the greater good w/ the necessity defense
2. Mens Rea is still present
3. Elements: Nelson v. State
a. Prevent significant evil
b. No adequate alternative
c. Harm caused is not disproportionate to the harm avoided
i. Here, seriousness of the offenses committed by Nelson were
disproportionate to the situation he faced
4. At common law: only available w/ a non-human cause (e.g. act of god)
5. MPC: limitations:
15
6.
d.
e.
a. Actor must believe conduct is necessary to avoid an evil
b. Evil avoided must be greater than that which would have happened
c. Balancing of evils is determined at trial (not subjective)
d. Not available if offense is ____
Necessity in Homicide
a. MPC: “nothing is off limits”
b. Queen v. Dudley & Stephens
c. Kantian ethics  insistence on the preeminent value of individuals
i. Each person’s life is as important as the lives of other persons 
Categorical Imperative as a guiding factor
ii. Not just to sacrifice A to save B, C, and D
EXCUSE
i. Duress
1. United States v. Contento-Pachon - Common Law Elements:
a. Immediate threat of death or serious bodily injury
b. Well-grounded fear that threat would be carried out
c. No reasonable opportunity to escape the threatened harm
2. Threat to property will not suffice
3. Need to have clean hands
a. Not exposing yourself to the threat (unclean hands)
4. People v. Anderson - Not a defense to murder or any intentional killing charge
5. MPC:
a. “reasonable Firmness”
6. Utilitarian v. Retributivist
a. How’d they respond to duress?
INSANITY
i. Determining Insanity:
1. Competency hearing
2. Pretrial notice of intent to plead insanity
3. Choice of verdicts
a. Not guilty
b. Not guilty by reason of insanity
c. Guilty but mentally ill
ii. Why excuse insanity: United States v. Freeman
1. Punishing / imprisoning insane does not satisfy any of the purposes of criminal law
a. Rehabilitation
b. Deterrence
c. Retribution
iii. Tests for determining insanity – laid out in State v. Johnson
1. Traditional M’Naghten Test – 28 states
a. Laboring under defect of reason from a disease of the mind
b. As not to know nature and quality of the act he was doing
c. Or that he did not know that the act he was doing was wrong
2. Irresistible impulse / control test
a. Absolutely no control over action
b. Mind cannot govern conduct in appropriate way
c. If you wait until people aren’t around to witness what you’re doing, not a defense
3. Durham “Product” test
a. Excuse criminal conduct that is the result or product of a mental defect
b. Whether or not she knew it was wrong, it was the result of the mental illness
c. Heavily dependant upon expert testimony
i. Essentially made the decision for the jury
4. MPC Test (4.01) – 14 states (decreased after Hinckley trial)
a. Cognitive Prong:
i. Lacks substantial capacity to appreciate wrongfulness of the act
b. Volitional Prong:
i. To conform his conduct to the requirements of the law
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c.
d.
f.
g.
h.
Differs from M’Naghten in that it does not require that the ∆ knew the difference
between right and wrong
i. May know something is illegal but not APPRECIATE it’s wrongfulness
Doesn’t require complete impairment of the ∆’s control (unlike M’Naghten /
irresistible impulse)
DIMINISHED CAPACITY
i. Set out in Stephen J. Morse – “Undiminished Confusion in Diminished Capacity”
ii. Not enough to get “legal insanity”
iii. ∆ will be either
1. Acquitted; or
2. Convicted of a lesser offense
iv. Mens Rea Variant
1. Failure of proof defense
a. Fully acquitted  no sentence, not guilty, BUT
i. Sometimes only available for specific intent
ii. Some jurisdictions reject diminished capacity across the board
v. Partial Responsibility variant
1. Excuse defense
a. Govt. proved all elements, but should be guilty of less severe crime
2. MPC:
a. Extreme mental infirmity in committing act
3. Deals w/ mental abnormalities that aren’t sufficient for categorization of insanity
INTOXICATION
i. Voluntary
1. Generally, NOT a defense to criminal liability
2. United States v. Veach - Common law allows for specific intent negation
a. Failure of proof based on lack of mens rea of specific intent to interfere w/
performance of official duties or of retaliating for the performance of such duties
b. Too intoxicated to form the specific intent
3. Moral blameworthiness constitutes general intent crimes
a. ∆ is morally blameworthy for action of getting drunk, .: satisfies mens rea
ii. Involuntary
1. Possible Scenarios:
a. Coerced
i. TRULY under duress
1. Pledging a frat is not enough
b. Pathological Intoxication
i. Special susceptibility to particular intoxicating substance
c. By innocent mistake
d. Unexpectedly intoxicated by prescription drug
2. Acquittal
a. Failure of proof
b. Temporary insanity
i. Not the same consequences as someone acquitted on grounds of insanity
3. MPC:
a. Recklessness by means of self-induced intoxication
INFANCY
i. In Re Devon T.
ii. Under age 7
1. Infancy defense bars conviction
iii. Over age 14
1. No infancy defense
iv. Between 7 and 14
1. Rebuttable assumption that child does not have cognitive capacity to distinguish right from
wrong
2. Here: not mere possession – it was possession of 20 packets of heroin w/ intent to distribute
a. Children who are unaware that what they are doing is wrong have no need to hide
out or to conceal their activities
v. Children still liable for torts
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i.
BACKGROUND / CULTURAL DEFENSES
i. RSB – United States v. Alexander, Bazelon, J.
1. Conviction requires three determinations:
a. Condemnable act was committed by the actor-∆;
b. That actor can be condemned – that is, he could reasonably have been expected to
have conformed his behavior to the demands of the law; and
c. Society’s own conduct in relation to the actor entitles it to sit in condemnation of
him w/ respect to the condemnable act
2. Delgado:
a. There is little basis for “community” in the context of RSB
ii. Cultural Defenses
1. Individual should get as much individualized (subjective) justice as possible
2. But, multiculturalism should not be permitted either intentionally or incidentally to erode
the progress made as a culture in protecting the rights of minorities, women, and children…
a. When it permits customary practices that are dangerous / harmful, they should not
be allowed to escape the full sanction of the criminal law
Unit 4
XI.
Inchoate and Group Crimes
a.
b.
Attempt, solicitation, conspiracy
i. Deal w/ conduct that is designed to culminate in commission of substantive offense but has failed in
the discrete case to do so or has not yet achieved its culmination
ii. Crimes of risk creation
1. Reckless driving
iii. Crimes of specific preparation
1. Possession w/ an unlawful intent to distribute
iv. Crimes where purpose to cause greater harm than that which is implicit in actor’s conduct
1. Kidnapping, forgery, arson
Function of punishing inchoate crimes
i. Legal basis needed for intervention of agencies of law enforcement to prevent commission of the
crime
ii. Yields an indication that the actor is disposed towards such activity not alone on this occasion but
on others
1. Dealing w/ special danger those types of people present
iii. When actor’s failure to commit offense is due to fortuity, his exculpation on that ground would
involve inequality of treatment that would “shock” the common sense of justice
c. ATTEMPT
i. Provisions in specific statutes
ii. General attempt provisions that apply to all crimes w/in jurisdiction
iii. Incomplete attempt
1. Not able to do everything planned or needed to commit the offense
iv. Complete attempt
1. Does everything needed, but fails
v. Generally guilty of same category of crime (misdemeanor, felony) but guilty of less grading / degree
1. Statutory maximum will be lower than commission of actual offense
vi. MPC
1. Similar except for 1st degree felony murder = 2nd degree felony crime
2. No attempted felony murder
3. Yes attempted murder 210.2(1)(a), but not (b)
4. No attempted manslaughter under 210.3(1)(a)
5. Yes attempted manslaughter under 210.3(1)(b)
vii. Mens Rea
1. Dual Intent:
a. Intent to perform the actus reus
b. Specific intent to commit the target offense
i. E.g. no common law attempted felony murder (w/ Florida as the
exception) – Bruce v. State
1. No specific intent required in felony murder, so it cannot be an
attempt crime
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c.
ii. Attempted statutory rape DOES exist
People v. Gentry
i. Distinction between murder and attempt murder
ii. Must have specific intent to kill to be attempt murder
1. That act might result in death or great bodily harm is not enough
viii. Actus Reus
1. Hybrid Statutory Attempt:
a. Specific
i. Specifically talking about the “title” of the codified law
b. General
i. Applies to ALL crimes in the title
2. Preparation v. Perpetration
a. Mere preparation is NOT enough to constitute attempt (unless preparation itself
violates the law)
i. People v. Rizzo – not actually able to carry out the target offense of
robbery
b. Judicially created tests
i. Approaches:
1. How far have you traveled down the road toward commission
2. How much further do you have to go
ii. Tests – laid out in United States v. Mandujano
1. Physical Proximity
2. Dangerous Proximity
a.
3.
4.
5.
6.
Commonwealth v. Peaslee
i. Failed to allege solicitation
ii. Desisted far enough away from the building
Indispensable Element
Probably desistence
a. People v. Miller – can’t tell if he went to kill him or to
get the constable to arrest him (though it seems clear)
Abnormal Step
Res Ipsa / Unequivocality test
ix. Impossibility – People v. Thousand
1. Factual impossibility
a. NOT a defense
b. Mens rea still present – would have been successful but for the factual
impossibility
i. Mr. Drummond hypo v. Gary Coleman
c. Mistake of Fact - DIFFERENT from factual impossibility
i. Negates mens rea
ii. Failure of proof defense
2. Legal Impossibility
a. Pure Legal Impossibility
i. Actor engages in conduct he believes is criminal, but is actually NOT
illegal
b. Hybrid Legal Impossibility
i. Factual mistake about attendant circumstance that makes the act NOT a
crime (but would have been but for the factual mistake)
ii. Difficult to distinguish from factual impossibility
1. Many jurisdictions do not allow it as a defense, but some do
x. Abandonment
1. Not a defense at common law – but some courts hide it under the name of preparation v.
perpetration (Commonwealth v. McCloskey)
2. MPC 5.01(4) – allows for abandonment
a. Complete and voluntary renunciation
i. Truly have a change of heart (not just you thought you’d be caught)
d. BATTERY
19
i. Unlawful application of force
1. Could be w/ or w/out an instrument
2. Includes an “offensive” touching/contact like spitting or unwanted sexual advances
ii. To another
1. Against the person OR someone on his person (e.g. carrying a bag)
iii. Willfully or in anger
e. ASSAULT
i. Common law definition
1. Unlawful attempt,
2. Coupled w/ a present ability
3. To commit a violent injury
4. On the person of another
ii. Must have
1. Intent to injure
2. Present ability to do so
iii. Current Definition:
a. Intentionally subjecting another
b. To reasonable apprehension
c. Of receiving a battery
2. This includes:
a. Actual attempted battery
b. Menacing
i. Scaring someone w/o intent or ability to carry through w/ threat 
unloaded gun
c. Conditional assaults
iv. Merger bar in felony murder
1. Felonious assault that accidentally causes death does NOT constitute felony murder
f.
SOLICITATION
i. State v. Mann (N.C. 1986)
1. “Asking, enticing, or counseling of another to commit a crime”
ii. Mens Rea
1. Specific intent offense
a. Actor must solicit other person w/ specific intent that the other person commit the
crime
iii. Actus Reus
1. The crime is complete upon the actor’s asking
2. State v. Cotton –
a. Uncommunicated solicitations are generally not guilty
i. Person must receive and read the communication
iv. Merger
1. Solicitation merges w/ completed crime
a. Solicitor is guilty of solicitee’s offense
v. MPC
1. Mens Rea
a. Purpose of promoting or facilitating the commission…
2. Actus Reus
a. Command, encourage, request another to engage in conduct that would
i. Constitute a crime
ii. Or an attempt to commit the crime
iii. Or establish original actor’s complicity to commit the crime
3. Punished like completed offense through merger (though subject to mitigation on some
grounds)
g. CONSPIRACY
i. People v. Carter – Common Law Conspiracy
1.
Partnership in criminal purposes
a. Mutual agreement or understanding
b. Express or implied
c. Between two or more persons
20
d. To commit criminal act; OR
e. (at common law) accomplishment of legal act by unlawful means
2. Dual Intent:
a. Intent to combine with others
i. An acquittal must be ordered if any essential element of the crime is left
to surmise – Commonwealth v. Cook
1. That a ∆ may have aided and abetted the crime does NOT
establish a conspiracy
2. Accomplice and conspiratorial liability are not synonymous and
one can be an accomplice aiding in the commission of a
substantive offense w/o necessarily conspiring to commit it
b. Intent to accomplish the illegal objective
3. Does not merge w/ underlying offense
a. Can be convicted of two separate crimes
4. Inchoate
a. Crime completed upon creation of the agreement
i. Some jurisdictions require an overt act after initial agreement
ii. Almost anything can be an over act
ii. Pinkerton Rule
1. An overt act of one partner may be the act of all without any new agreement specifically
directed to that act
2. Actor is liable for actions of co-conspirators when the act is
a. Within the scope of conspiracy; or
b. In furtherance of the conspiracy; and
c. There is reasonably foreseeability  typically hardest to prove
3. MPC
a. Rejects Pinkerton
b. BUT there could still be accomplice liability
iii. MENS REA
1. People v. Swain
a.
2.
MPC
a.
b.
Under common law, cannot be guilty of conspiring to commit implied malice
murder where the requisite element of malice is implied
5.03: it is enough that the object of the agreement is “Conduct that constitutes the
crime”
agreement must be made “with the purpose of promoting or facilitating the
commission of the crime”
i. may be proved though actor did not know of the existence of a
circumstance when knowledge is NOT REQUIRED for the substantive
offense
iv. Punishment
1. Common Law:
a. Less seriously than target offense (usually)
2. MPC
a. Punished as same as target offense
v. Procedural Issues
1. Hearsay – chicken and egg problem
2. Joint trials
3. Venue
4. Not automatically terminate because law enforcement has defeated object of conspiracy
vi. Merger
1. MPC
a. Conspiracy generally merges w/ object offense unless the conspiracy is broader
than object offense
2. Common Law: does not merge
vii. CIRCUMSTANTIAL EVIDENCE
1. Conspiracy CAN be established based solely on circumstantial evidence
a. Association
b. Knowledge of the crime
21
c.
d.
2.
Presence at the scene
Participation in the object of the conspiracy
i. Commonwealth v. Azim (Pa. 1983)
Knowledge of illegal use of goods or services
a.
People v. Lauria
i. When knowledge of an illegal use of goods or services can be inferred
as an intent to further that use
1. Purveyor of legal goods has acquired a stake in the venture
2. No legitimate use for the goods or services exists
3. Volume of business w/ buyer is grossly disproportionate to any
legitimate demand
ii. Intent of Suppliers may be established when:
1. Direct evidence that he intends to participate
2. Through an inference that he intends to participate based on
a. His special interest in the activity
b. The aggravated nature of the crime itself
viii. UNILATERAL V. BILATERAL CONSPIRACY
1. People v. Foster
a.
Unilateral: only one of the alleged conspirators needs to agree to the commission
of the crime
b. Common Law: still bi-lateral but shifting towards unilateral
2. Types of Conspiracies
a. Wheel Conspiracy
i. Hub in the middle – central player
ii. Spokes shooting out from the hub
iii. More difficult for prosecutor to get the court to infer an agreement in this
type of conspiracy
b. Chain Conspiracy
i. Each link is necessary to the success of the entire enterprise
1. Classic type: drug distribution
ii. Easier for prosecutors to prove broad conspiracy liability
ix. NUMBER OF CONSPIRACIES
1. Breverman v. United States
a.
b.
One agreement = one conspiracy
The gist of the crime of conspiracy as defined by statute is the agreement or
confederation of the conspirators to commit one or more unlawful acts
2. Wharton’s Rule – Ianelli v. United States
a. Wharton’s Rule: when definition of a crime requires participation of more than
one person, conspiracy cannot be punished separately because it does not affect 3 rd
parties
i. Very few jurisdictions apply Wharton’s Rule
b. Not applicable to statutorily defined crimes e.g. § 1955 for illegal gambling
x. WITHDRAWAL & ABANDONMENT
1. People v. Sconce
a.
2.
Withdrawal from a conspiracy is not a defense after the overt act has been
committed in furtherance of the conspiracy, because there, the crime of conspiracy
has been completed
Common Law Withdrawal
a. Affirmative and bona fide rejection or repudiation of the conspiracy
communicated to the co-conspirators
i. In j/ds that require an over act:
1. Complete defense before the overt act is completed
2. Can be defense to underlying offense and actions in furtherance
by co-conspirators if occurs after overt act
a. But can’t get off hook for conspiracy
ii. In j/ds w/o overt acts
1. Once you agree, there is no withdrawal
22
2.
3.
Can be a defense to underlying offense and actions in
furtherance by co-conspirators
MPC:
a.
b.
No withdrawal; but there is:
Renunciation – 5.03(6)
i. Affirmative defense
ii. Requires that you thward the conspiracy, manifesting complete and
voluntary renunciation
Common law v. MPC Conspiracy:
Common Law
MPC
No overt act required
Overt act required unless 1st or 2nd degree felony
Unilateral (modern thrust) but typically it has been
Unilateral
bilateral
Does not merge with substantive offense
Generally merges
Punished at a lower level than target offense
Punished at the same level as substantive offense
h.
ACCOMPLICE LIABILITY
i. Commonwealth v. Cook
1.
Accomplice and conspiratorial liability are not synonymous and one can be an accomplice
aiding in the commission of a substantive offense w/o necessarily conspiring to commit it
ii. General Principles: Derivative Liability – liability derived from the acts of another
1. Derivative liability requires action by the 2ndary actor that makes it appropriate to blame
him for what the primary actor does:
2. State v. Ward
a.
Principal in the first degree - perpetrator
i. One who actually commits the crime
b. Principal in the second degree – abettor
i. Guilty of a felony by reason of having aided, counseled, commanded, or
encouraged the commission thereof IN HIS PRESENCE, either actual or
constructive
c. Accessory Before the fact – inciter
i. Guilty of a felony by reason of having aided, counseled, commanded, or
encouraged the commission thereof WITHOUT being present, either
actually or constructively at the time of the perpetration
d. Accessory After the fact – criminal protectors
i. One who with knowledge of other’s guilt, renders assistance to a felon in
the effort to hinder his detection, arrest, trial, or punishment
3. Most states have drawn a line between accessory before the fact and after the fact
a. Top 3 = same punishment; treated as the same for complicity purposes
b. Last 1 = lighter offense / punishment
iii. Elements of Accomplice Liability
1. Mens Rea
a. Dual Intent
i. Intent to assist the primary party in the criminal conduct
ii. Purposeful intent that the offense actually be committed
1. Must J/Ds require purpose above mere knowledge
2. MPC requires purpose (2.02(a))
2. Actus Reus
a.
State v. Hoselton
i. Accomplice must share the criminal intent of the principal in the first
degree
ii. Separate consideration as to whether
1. A person engaged in the requisite acts (or omissions); and
a. [Gave assistance]
2. Whether he had the requisite mental state
a. [w/ intent thereby to promote or facilitate commission
of the crime]
b. State v. V.T
23
c.
3.
4.
i. Majority rule: Mere presence is not enough
ii. An undisclosed intention to render aid if needed will not suffice
Minority rule: where mere presence CAN be enough
i. Wilcox v. Jeffrey
1. Presence as encouragement
Natural-and-Probable-Consequences Doctrine
a.
State v. Linscott
i. Four step process
1. Primary party committed the target offense (or an inchoate
version thereof)
2. If yes  was secondary party an accomplice?
3. If yes  did party commit any OTHER crimes?
4. If yes  whether the latter crimes “although not necessarily
contemplated at the outset, were reasonably foreseeable
consequences of the original criminal acts encouraged or
facilitated by the aider and abettor.”
ii. Liability for any “secondary crime” committed by the principal may be
established when
1. That the actor intended to promote the primary crime, and
2. That the commission of the secondary crime was a “foreseeable
consequence” of the actor’s participation in the primary crime
iii. Expanding liability, as w/ Pinkerton
b. NOT recognized by the MPC
Direct v. Accomplice Liability
a. Innocent Agency Doctrine
i. Bailey v. Commonwealth
1.
One who effects a criminal act through an innocent or unwitting
agent is a principal in the 1st degree
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