Crim Law - Jinks - Spring 2014 (1)

7/23/2019 Crim Law - Jinks - Spring 2014 (1)

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Criminal Law Outline

Function of the Criminal Law

• Henry Hart - Essay on the method of the criminal law:

o There are general rules which every person's conduct must comply with.

o Rules are considered valid and binding on all persons who are made subject to the terms of the

rules.

The primary addressee who is supposed to conform his conduct must now of:

• The law's e!istence

• "f its content in relevant respects.

The primary addressee must be able to comply with it and willing to do so.

o #anctions predictably follow from non-compliance to the rules.

o $riminal %aw comes with a solemn& formal condemnation from the community.

o There is punishment.

• Two $ommon ethods of (ringing $riminal $harges

o )reliminary Hearing*+nformation - ,acts and info brought to judge and he maes decision on

whether there is enough probably cause evidence to bring charges to a trial.

+nformation - document filed by the prosecution that formally alleges facts and charges and

cites penal code provisions in support.

o rand /ury*+ndictment - Typically 01 jurors that mae the probable cause determination. The facts

and information are brought e! parte to the rand /ury without the defendant present. rand /ury

issues an indictment. +ndictment - document issued by the rand /ury with specific allegations& facts& and cites to

the penal code.

• $onstitutional Right to a /ury trial - in all cases when potential ma! penalty e!ceeds 2 months& the

defendant has a fundamental right to a jury trial.

o /uries commonly made up of 30 people. %owest number possible is 2.

+f less than 30 person jury - unanimity re4uired for conviction.

30 or more person jury - substantial majority re4uired for conviction.

o )resumption of innocence

5hen reviewing evidence and determining if a case can go to the jury& the trial court views

evidence in the light most favorable to the prosecution& resolving all problems and maing

inferential leaps in favor of the prosecution.

• )rosecution must show enough evidence to prove (eyond a Reasonable 6oubt on each of

the elements.

• /ury gets to mae a more even handed determination& weighing all the factors.

(urden of )roof: (eyond a Reasonable doubt - subjective state of near certitude.

• #tandard cannot be 4uantified by the judge. 7ny attempt to clarify the standard would only

lead to confusion.

• Reason why: (etter to let a guilty man go free than convict an innocent man.

• +f the evidence is such that reasonable jurymen must necessarily have such a doubt& the

judge must re4uire ac4uittal. (ut if a reasonable mind might fairly have a reasonable doubt

or might fairly not have one& the case is for the jury.

• /udge views evidence in the light most favorable to the prosecution.

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7ppellate $ourt standard - loo to evidence and determine whether any reasonable fact finder

would conclude that the prosecution established proof beyond a reasonable doubt.

Punishment

Rationales for punishment:

• 8tilitarian*$onse4uentialist: some effect that issues from the punishment justifies its imposition.

o 9otion of eneral 6eterrence - punishing a law breaer sends signal to other members that similar

conduct will cause similar behavior.o #pecific 6eterrence - those being punished are incentivied not to commit crimes in the future.

o +ncapacitation - imprisonment incapacitates the law breaer for a period of time& eeping them from

committing more crimes.

o Rehabilitation - #ome punishments might help rehabilitate the law breaer.

o )ublic Educational ,unction - teaches the public what is an unacceptable performance.

o +mposition of punishment displaces or maes less liely the resort to private violence ;vigilante

justice<.

• Retributivist: actors should punished if they deserve to be punished.

o 7ctors have a debt to society that must be paid via punishment.

o 7ctor asserted a false claim of superiority over their victims and must be punished to show claimwas false.

5hen we as if a defendant should be punished& we are also asing if there is any general justification for their

actions.

• )rinciple of )roportionality - 7n 7ctor's punishment must be proportional to his crime.

o $omes from the =th 7mendment prohibition on cruel and unusual punishments. 0 %imitations:

ratuitous )unishment - +f no rationale for having a punishment that severe& it is

unconstitutional. rossly E!cessive ;or grossly disproportionate< - $ertain punishments are grossly e!cessive in

relation to the conduct that the person is charged with committing.

• 6eath )enalty /urisprudence - +s the crime so severe as to justify the ultimate of penalties>

o "nly imposed in the most severe cases.

o 6eath penalty is irrevocable so re4uires careful consideration before applying.

• 9on-$apital #entences - specific terms of imprisonment. %ess strict on proportionality.

o #olem v. Helm 1 #tep test -

ravity of "ffense and harshness of the penalty imposed - loo to

proportionality. #entences imposed on other criminals in the same jurisdiction - looing at other

types of crimes in the same jurisdiction and the proportionality in those cases. #entences imposed for commission of the same crime in other jurisdictions -

loo at other states and their punishment scheme for the same crime.

o Harmulin ? #tep Test:

)rimacy of the %egislature - $ourt should give deference to policy concerns

imposed by the legislature. @ariety of the )enological #chemes - can pic either the utilitarian or retributivist

scheme& or a mi!.

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9ature of our federal system - federal courts must defer to state criminal

schemes. Re4uirement that the )roportionality Review be guided by objective factors -

federal court must have objective factors to substitute their judgment for state

court's judgment.

Elements of Criminal Statutes

• Principle of Legality - 9o crime without law& no punishment without law - i.e. a person may not be

convicted and punished unless her conduct was defined as criminal.

o Re4uires:

,air notice - criminal statutes must be understandable by reasonable& law-abiding citiens.

• ust be drafted in language that is understandable and accessible.

• $itiens must not have to guess what is prohibited.

#pecification in the statute of 6iscretion by )ublic "fficials - must not invite or encourage

arbitrary or selective enforcement.

• The law must be clear to officials charged with administering the laws& i.e. officers& courts.

Rule of %enity - criminal statutes ought to be interpreted in the way that is most favorable to the

accused.

• 5hen the court cannot otherwise decide between two e4ually convincing constructions of

the statute& then the court should choose the construction that most favors the accused.

• Rarely comes into play. 7ll other theories must be looed at prior to this being applied.

o This means when the court interprets a vague statutory provision& they must tae into consideration

if it is constitutionally specific enough and if it is clear to citiens and public officials.

Actus Reus - )$ A 0.B3o "bjective elements:

7ttendant $ircumstance elements - conte!t elements that specify the conte!t in which the

conduct in 4uestion& when committed with a culpable mental state& constitutes a crime. $onduct Elements - The conduct prohibited& committed by the actor - e!ample: Rape.

Results Elements - a prohibited result of conduct in the statute - e!ample: Homicide

o )$ A0.B3 - Re4uirement of @oluntary 7ctC "mission as (asis of %iability - @oluntariness is the

minimal amount of mental process to show the actor's will.

;3< 7 person is not guilty of an offense unless his liability is based on conduct which includes a

voluntary act or the omission to perform an act of which he is physically capable.

;0< Refle!es or unconscious bodily movements are not voluntary acts.

• 8nconsciousness acts voluntarily induced by drugs or alcohol is not a complete defense.

;1< %iability for the commission of an offense may not be based on an omission unaccompanied

by action unless:• ;a< the omission is e!pressly made sufficient by the law defining the offense& or

• ;b< a duty to perform the omitted act is otherwise imposed by law - i.e. a legal obligation to

act. ,ive situations in which a legal duty may arise:

o 5here a statute imposes a duty.

o 5hen one is in a special relationship with the other - includes parent-child& spouse-

spouse& doctor-patient.

o 5here one assumed a contractual duty

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o @oluntary assumption of the duty and then secluding the helpless person as to prevent

others from rendering aid.

o $reating a ris of harm to another

• Dualifying "mission - culpable failure to act.

o ust be from a legal duty& not a moral duty. See People v. Beardsley

o 7 doctor has no duty to continue treatment& once it has proved to be ineffective. See

Barber v. Superior Court.

;?< )ossession is an act& within the meaning of this #ection& if the possessor nowingly procuredor received the thing possessed or was aware of his control thereof for a sufficient period to have

been able to terminate his possession.

o 5hen establishing a voluntary act& e!tends to all courses of conduct necessary in order to prove

involvement in the criminal offense.

ust show actor engaged in all inds of conduct re4uired by statute and must show that all

actions were voluntary actions.

• Mens Rea - )$ A 0.B0 - ental state of the actor. There must be something about the actor's

mental orientation towards the conduct and the situation of the conduct& that renders the conduct

reprehensible.

o ens Rea in4uiry is a subjective loo into the actor's intent. 7 jury can draw reasonable inferences from surrounding circumstances.

Transferred +ntent - 5hen the actor intends to cause harm to one person but ends up hurting

another person instead.

• 6oesn't really apply in criminal cases because all that is relevant is intention to do harm and

the actor's conduct that caused the harm.

o #pecific +ntent v. eneral +ntent

#pecific +ntent: - terms are used by courts in varying conte!ts.

• #pecification in #tatute - #ome courts refer to a specific intent offense as an offense in

which the mens rea is specified in the statute.

• )urposefully or nowingly - the statute re4uires purposefully or nowingly as the re4uired

mental state.

• ,urther )urpose - #pecific intent statutes that include a special ind of element& which

re4uires actors engage in a certain ind of conduct with some further purpose that motivates

the conduct described in the statute. eneral +ntent - 5hen a statute does not specify any further purpose.

o "riginal $ommon %aw 7pproach was whether the acts were committed maliciously and wicedly.

5illful (lindness ;$ommon %aw 7pproach< - awareness of high probability of fact in 4uestion

plus deliberate avoidance of finding out.

o )$ A0.B0 - eneral Re4uirements of $ulpability:

;3< ,our mental states: )urposely& nowingly& reclessly& or negligently ;0< inds of $ulpability:

• ;a< )urposely ;intentionally<-

o $onduct or Result Element - means conscious objective of the actor to engage in

conduct of that character& or to achieve that result.

o 7ttendant $ircumstance Element - the actor is aware of the e!istence of the attendant

circumstances& or hopes or believes the circumstances e!ist.

o ost culpable mental state.

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• ;b< nowingly

o $onduct F 7ttendant $ircumstances Elements - the actor is aware that his conduct is

of that nature or is aware of the attendant circumstances.

o Results Element - actor is practically certain that the result will occur because of his

conduct.

o 5illful (lindness - nowingly elements are satisfied where an actor is aware of a high

probability of e!istence of a fact.

)rosecution does not have to establish deliberate avoidance ;contrary to $%<. E!ception - if actor actually believes the fact does not e!ist.

• ;c< Reclessly - conscious ris creation that is culpable.

o 7ctor must be aware of ris and consciously disregard it.

o Ris must be a substantial and unjustifiable ris

o 6isregard of the ris involves a gross deviation from the standard of conduct that a

law-abiding person would observe in the actor's situation.

o 7ssessment includes an individualied assessment of culpability.

• ;d< 9egligently - a culpable failure to perceive the creation of ris. #ame pieces as

Reclessly& e!cept the actor is negligent because he fails to perceive the ris.

o 7ctor should have been aware of the ris.o #ubstantial and unjustifiable ris.

o ross deviation from a reasonable standard of conduct

o %east culpable mental state.

;1< +f mental state is not established in the statute the minimum standard is reclessly.

;?< +dentified mens rea presumably applies to all material elements& unless a contrary purpose

plainly appears. ;2< 5hen a particular purpose is an element of an offense& the element is established although

such purpose is conditional& unless the condition negatives the harm or evil sought to be

prevented.

;G< +gnorance of the law is not a valid defense - the prosecution never has to show that the actornew that the conduct was illegal& unless the statute in 4uestion maes it an element.

o )$ A0.B - #trict %iability - 5hen one or more material elements of an offense do not re4uire a

culpable mental state& there is strict liability in regards to that element.

• #trong presumption against #trict %iability because of 0.B0;1< where reclessly is the

default mental state.

o The more severe the punishment for a crime& the stronger the presumption against

strict liability.

• )ublic 5elfare "ffense - where the item being regulated is inherently dangerous or

haardous item& legislature often imposes strict liability. See Staples v. United States

;machine gun case<.o 7ctors engaged in inherently dangerous activities should now that the activity

inherently will be regulated. +ncumbent on the actor to learn what regulations are.

o +mplied ens Rea - actors understand they are engaging in an especially dangerous

activity that puts the actor in a responsible position to the public. Re4uires actual nowledge that actor engaged in a public welfare offense.

• #tatutory Rape - age of victim imposes strict liability.



o 7ctor aware he is engaging in intercourse with someone who is young.

o 7ctor understands many in society would consider conduct immoral or inappropriate.

o 7ctor should understand if victim is too young& he may be subject to strict regulation.

o Mistake - MPC !"#$ istae of ,act - 7ctor mistaen about some fact relevant to a material element.

• $ommon %aw - a reasonable mistae of fact ordinarily e!culpates a defendant prosecuted

for a general intent crime.

o 7nalysis: #pecific +ntent or eneral +ntent #tatute>

• +f #pecific +ntent& what ens rea re4uired>

o 5ould the asserted mistae negative that identified mental state>

• +f eneral +ntent& a defendant can claim a reasonable mistae of fact& but not

an unreasonable one. E!ceptions:

o oral 5rong doctrine - the actor's awareness of the moral wrong is

sufficient to establish his general culpability.

o %egal 5rong 6octrine - when the actor would have been committing an

unlawful act even if the facts would have been as he supposed.

• )$ 7pproach A0.B?;3< - +gnorance or mistae as to a matter of fact or law is a defense if:o ;a< the ignorance or mistae negatives the purpose& nowledge& belief& reclessness& or

negligence re4uired to establish a material element of the offense& - - 9egates the

relevant mental state re4uired. 8nless the mistae negates the re4uisite mental state

re4uired by the offense& then it is not a defense.

o ;b< the law provides that the state of mind established by such ignorance or mistae

constitutes a defense.

o E!ception - A0.B?;0< 7lthough ignorance or mistae would otherwise afford a defense

to the offense charged& the defense is not available if the defendant would be guilty of

another offense had the situation been as he supposed. +n such case however& the

ignorance or mistae of the defendant shall reduce the grade and degree of the offense

of which he may be convicted to those of the offense of which he would be guilty had

the situation been as he supposed. 7ctor can only be punished for the offense he believed he was committing.

7nalog to the common law %egal 5rong doctrine

istae of %aw

• )$ A0.B?;1< 7 belief that conduct does not legally constitute an offense is a defense to a

prosecution for that offense based upon such conduct when:

o ;a< the statute or other enactment defining the offense is not nown to the actor and has

not been published or otherwise reasonably made available prior to the conduct

allegedC or

o ;b< he acts in reasonable reliance upon an official statement of the law& afterward

determined to be invalid or erroneous. "fficial statement comes from someone authoried to give official statement -

police officer& judge& 7ttorney eneral's office.

• Causation - )$ A0.B1

o "nly arises when the crime charged includes a prohibited results element.

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ust satisfy both (ut ,or $ausation and )ro!imate $ausation.

o 7ctual $ausation - )$ A0.B1;3< -

(ut for $ausation - the defendant's conduct is a cause-in-fact of a particular result if the result

would not have happened in the absence of the defendant's conduct.

• (ut for the actor's conduct& the prohibited result would not have occurred.

#ubstantial ,actor test - the defendant's conduct is a cause-in-fact of a prohibited result if the

subject conduct was a substantial factor in bringing about the said result.

7cceleration - where the actor's conduct accelerates the occurrence of a prohibited result thatwould have occurred even in the absence of the actor's conduct& we hold the actor to be the but

for cause of the prohibited result. #imultaneous #ufficient $auses - two actors& acting independently& committing acts that would

each cause the death of the victim at the same time& both actors are a but for cause of the

prohibited result.

• $ommon %aw usually gets to this via the #ubstantial ,actor test

o (oth actors are a substantial factor causing the prohibited result because the prohibited

result would happen via one of their action's regardless of the other's action.

"bstructive $ause - a subse4uent cause that accelerates the result and is independent of the

actions of the actor& breas the causal chain.o )ro!imate $ausation - )$ A0.B1;0<*;1<

$ommon %aw - identifies factors to help with assessment. 2 ,actors:

• 6e inimus $ontribution - where the actor is a but for cause of the result& but only made a

de minimus contribution to the prohibited result& actor might be relieved of culpability for

the occurrence of the prohibited result.

• +ntended $onse4uences 6octrine - actor is the pro!imate cause when the result is what the

actor intended and the result occurred in the manner the actor intended.

• "missions 6octrine - omission is not a superseding& intervening cause

• ,oreseeability -

o 6ependent*Responsive causes occur in response to the defendant's earlier conduct.

enerally dependent is responsible for dependent intervening causes. 6on't brea the causal chain unless the dependent cause was unforeseeable and

e!tremely abnormal or biarre.

o +ndependent*$oincidental $ause occurs if the factor would have come into play even

in the absence of the actor's conduct. 7ctor's generally not responsible for these. (reas the causal chain unless the cause was reasonably foreseeable to an actor in

the defendant's position.

• 7pparent #afety 6octrine - where the victim has reached a position of apparent safety& such

that the danger created by the actor no longer e!ists& the causal chain is broen.

• #ubse4uent Human 7ction - circumstances in which an individual engages in free voluntary

action& and that voluntary action of another person is a direct cause of the prohibited result.

(reas the causal chain. )$ - $ompares the actual result with the result that the actor either intended or culpably rised&

and ass whether it is fair to hold the actor accountable for the result.

• +s the actionable result too remote or accidental in its occurrence to hold the actor

responsible>

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o +f the intended result is the result the actor either had the conscious objective of

producing& or it is the result he was practically certain would occur& then there is no

pro!imate causation issue.

• +n4uiry:

o 5hat was the actual result>

o 5as the actual result within the purpose of the actor> +f yes then pro!imate cause. +f

no:

o 6id the actual result involve the same ind of injury or harm as that designated> Jes&then pro!imate cause. +f not:

o 5as the actual result too remote or accidental in its occurrence to have a just bearing

on the actor's liability> +f yes& not pro!imate cause. +f no& pro!imate cause.

• )$ 0.B1;0<& ;1<& and ;?< - 6ifferent standards for different ens Rea:

o ;0< )urposely or nowingly - the actual result is within the purpose or the

contemplation of the actor. +f the actual result only differs in that a different person or property is injured

from that designed or contemplated& still pro!imate cause. ust not be too remote or accidental in its occurrence.

o ;1< Reclessly or 9egligently - the actual result is within the ris of which the actor isaware& or in the case of negligence& of which he should be aware. +f the actual result only differs in that a different person or property is injured

from that designed or contemplated& still pro!imate cause. ust not be too remote or accidental in its occurrence.

o ;?< #trict %iability - the element is not established unless the actual result is a probable

conse4uence of the actor's conduct. +ntervening*#uperseding $ause - breas the causal chain and renders the actor non-responsible

for the occurrence of the prohibited result.

%omici&e - Results Crime

• Homicide is the unlawful illing of another human being. +t is the culpable illing of another human being.

o +ncludes a results element.

o $ausation is considered.

ust prove (ut ,or $ausation and )ro!imate $ausation.

o Homicide is a graded offense. urder is the most serious*severe.

ens Rea is the distinguishing factor between degrees.

• $ommon %aw 7pproach - homicide was the unlawful illing of another human being. Two types:

o Murder - murder of another human being with malice aforethought.

+ntentional illings - re4uires

• ens Rea of purposely or nowingly. +ntent to cause rievous (odily harm or rievous bodily injury - an act that is nown to create a

substantial ris of death.

• 5here an actor intentionally inflicts such an injury and the injury results in death& the actor has

illed with malice aforethought.

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6epraved-Heart urder - actor e!hibits a depraved mind and an abandoned and malignant heart.

urder which involves culpable ris taing& which is sufficiently aggravated that it is classified as

murder.

• ens Rea - 7ggravated Reclessly.

• $onsiderations:

o The degree of ris.

o The reasons for running the ris& and

o 5hether the actor was aware of the ris and the characteristics of the ris.• Duestion is whether there is sufficient evidence to establish an aggravated ris.

,elony*urder Rule - illing committed in the course of committing a felony is a murder.

• The intent with respect to the underlying felony substitutes for the intent to commit the murder.

Re4uires no independent mens rea. Establishes strict liability for the illing.

• 7ctor must be engaged in the commission of a felony - begins at the moment the actor attempts

to commit the felony& the actual commission of the felony& and the actor's flight or attempt to

flee& after the conduct.

• E!tends to illings committed by accomplices.

• Has been limited in many jurisdictions to only include certain felonies as predicate felonies&

which are inherently dangerous to human life.o +nherently 6angerous ,elony - application of the rule e!tends only to a subset of felonies&

which are inherently dangerous to human life. ost state statutes specifically enumerate the

4ualifying felonies. 5hen not specifically enumerated the courts determine the scope and

doctrine: Elements in the abstract approach - court e!amines the statute defining the triggering

felony and determine in the abstract whether the felony is inherently dangerous to

human life.

,acts of the $ase 7pproach - loo to the facts rather the elements of the underlying

statute. 6id that actor commit the offense in a way that was inherently dangerous to

human life>

o +n ,urtherance of the ,elony limitation - rule that bars the application of the felony-murder

rule where a co-felon is the victim.

o erger 6octrine - certain inds of felonies could not possibly be a 4ualifying felony

triggering the rule because the felony is a lesser included offense of the homicide. E!ample -

Jou can't have murder when you engaged in negligent homicide. 7ssaultive ,elonies - where the underlying felony is an assaultive felony& the felony

merges with murder and the Rule cannot be triggered. 7ssaultive @arieties of 9on-7ssaultive ,elonies - E!ample: (urglary with the purpose

of committing assault. The felony itself is not assaultive& but one of the elements is to

commit a separate felony that is assaultive. 6ivision of authority - majority approach is

that where the court has the authority to determine merger& certain varieties of non-

assaultive felonies will merge when the targeted offense is an assaultive felony. ,elonies with 7ssaultive elements but also include some additional non-assaultive

felonious purpose. E!ample - Robbery. $ourt uniformly have concluded that robbery

does not merge because there is an independent felonious purpose that must be

established.

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• +n the ,urtherance of the ,elony %imitation - Res estae - the illing must be committed during

the commission of an underlying felony and in the furtherance of the commission of the felony.

o Two approaches taen by the courts:

7gency 7pproach - illings are in furtherance of the felony only if the person directly

causing the illing is either the actor or a co-felon of the actor. 7ny illing committed

by a non-felon is not in furtherance of the felony and the rule does not apply to those. )ro!imate $ause 7pproach - a felon may be held responsible for a illing committed by

a non-felon if the felon set in motion the acts which resulted in the victim's death.8nder this rule& a illing committed by a police officer or third party can result in

felony*murder liability for the actor.

• 9ot recognied in very many jurisdictions because seems unfair.

o +n furtherance period doesn't end until the end of flight of all the felons and co-felons.

• Rationale for the Rule -

o 6eterrence Rational -

Rule deters illings committed during the course of felonies. +ncentive to tae e!tra

precautions. Rule deters commission of the underlying felony.

o Retributive Rationale - illings committed in the act of a felony ought to be punished moreseverely than the same felony committed that doesn't result in loss of life.

o Transferred intent - the actor's intent to commit the underlying felony transfers to constitute

the intent necessary to establish murder.

o Manslaughter - the unlawful illing of another human being without malice aforethought.

@oluntary anslaughter - Heat of )assion illings - where the actor commits the illing in a heat of

passion upon ade4uate provocation& the charge is mitigated from murder to manslaughter.

• illing must have occurred when the actor was in a heat of passion - did the actor lose their

capacity for cool reflection> This is a highly subjective formulation regarding the actor's mental

state.

• The heat of passion must have been triggered by an ade4uate provocation. Rigidly defined

categories:

o ;3< #eeing your spouse engaged in se!ual intercourse of another - actor must see it& and it

must be his spouse& not just girlfriend*boyfriend.

o ;0< utual $ombat - e!. (ar fight.

o ;1< +nstances of 7ssault and (attery

o ;?< illings in the event of an unlawful arrest.

o ;< 7ttacs directed against one's relatives or some third party.

o 5ords alone never amount to ade4uate provocation.

6istinction in some jurisdictions regarding insulting words and informational words.

6octrine applies only to insulting words - +nformational words can be ade4uate provocation.

o isdirected Retaliation 6octrine - the victim must be the provoer& not a third party.

o These elements were eventually supplemented by a general test: 5as the provocation of

such a character that it might enflame the passion of a reasonable*ordinary man to such an

e!tent that it would cause him to lose control> 7ctor is allowed to introduce evidence regarding provocation and the jury determines

whether the provocation was ade4uate.

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Reasonable man test is a reasonable person of the same gender and age in reasonable

situation with similar characteristics. #ome subjectiviation while trying to eep the test

objective.

• #uddenness Element - only sudden heat of passion 4ualifies for the defense. The defendant must

have no opportunity to cool off. ust be some non-trivial period of time.

• There must be a causal connection between the provocation& the heat of passion& and the illing.

o +ndependent intent to ill is separate from heat of passion-induced illing.

+nvoluntary anslaughter:• $ulpable Ris Taing that fails to satisfy the depraved-heart standard - 7cts that are unduly

dangerous to human life.

• isdemeanor*anslaughter Rule - anslaughter where the actor causes the death of another

human being in the commission of an unlawful act& not a felony.

• 6egrees of Homicide 7pproach - emerging in common law jurisdictions as an alternative. )urpose was to

delineate from murders which re4uired death penalty& and those that did not. #cheme for differentiating

between murders and identifying the worst of the worst.

o ,irst 6egree urder - death penalty eligible.

+ntentionally illing the victim via some particularly vile means or method - particularly by lying

wait or poison.

• #ome statutes include illing police officers or a terrorist attac under this.

7ll willful& deliberate& and premeditated illings - little distinction between this and intentional

illing. ,elony-urder Rule - 6eviates from common law approach by limiting the rule to only certain

classes of felonies:

• E!pressly identifies 4ualifying felonies& which usually are clearly dangerous to human life.

• "r& #tatutes mae clear that only felonies which are inherently dangerous to human life 4ualify

under the Rule.

o #econd 6egree murder - every other ind of illing.

• )$ - a person is guilty of criminal homicide if he purposely& nowingly& reclessly& or negligently causes

the death of another human being.

o A03B.0 - urder - ,elony of the first degree. inimum sentence of 3-3B years imprisonment. Three

Types: illings $ommitted )urposely ;analog to $ommon %aw +ntentional illings<

illings committed nowingly - actor is practically certain they will produce death.

7ggravated ,orm of Reclessness - reclessness that e!hibits an e!treme indifference to the value of

human life ;analog to 6epraved Heart urder<

• The ris run by the actor is so e!treme& and motivated by such a base anti-social motive& that we

ought to treat the victim as though they intended to ill the victim.

• +ncludes an analog to the ,elony-urder Rule - the jury is permitted to find that the actor was

both recless and e!hibited the right ind of indifference if the illing occurred during the

committing& or flight from committing& a 4ualifying felony. )ermissive jury presumption.

o +ncludes illings committed by accomplices.

o 9ot a separate species of murder under the )$& but rather a rule of evidence in

establishing reclessness and e!treme indifference.

33



o +s not an end-run around the mens rea as in the $%. +s only an evidentiary rule to be

considered when proving the mens rea.

o 9o jurisdictions have accepted the )$ approach and still maintain the ,elony-urder

rule.

o A03B1.1 - anslaughter. ,elony of the second degree.

5here the actor acts reclessly - actor was aware of a substantial and unjustifiable ris that someone

would die and the actor chose to run the ris. Running the ris amounts to a gross deviation from the

standard of care. arden @ariety reclessness. E!treme ental or Emotional 6isturbance - analog to the heat of passion doctrine. illing that are

otherwise murder are mitigated to manslaughter if the actor was acting under the influence of an

e!treme mental or emotional disturbance& which is reasonable given the situation.

• Test is wholly subjective - Reasonableness of e!planation or e!cuse shall be determined from the

viewpoint of a person in the actor's situation under the circumstances he believes them to be.

o 7ny aspect of the situation that has some just bearing on the grading of the offense ought to

be taen into account.

• This is a defense to mitigate the charge. ost courts view this as an e!cuse for the murder.

• +t is much easier to bring this defense under the )$ than under the common law.

o )oint is to get the 4uestion into a fact finder's hands with the simple in4uiry of whether thesituation arouses the fact finder's sympathy& such that it was an understandable loss of

control on the part of the actor.

o 9o re4uirement of ade4uate provocation - just some e!planation or e!cuse for the illing.

o The $% 5ords "nly test does not apply under the )$.

o There is no cooling off period bar either - the e!istence of a cooling-off period is relevant to

the in4uiry& but there is no bar for it.

o 9o misdirected retaliation bar either - illing can be a third person.

o A03B.? - 9egligent Homicide - 5here the actor negligently commits a illing. ,elony of the third

degree.

6istinction between 9egligent Homicide and reclessness in manslaughter is that in negligencecases& the actor fails to detect the ris& and the failure to perceive the ris is culpable.

This is not ordinary negligence - this is a gross deviation from the ordinary standard of care.

#tandard is a reasonable person in the actor's situation.

6oes the actor have an affirmative legal obligation to engage in the conduct in 4uestion> +f they do&

the actor may be held criminally responsible for failing to engage in that conduct.

$riticism - The )$ definition of reclessness and negligence penalies people for being stupid or

ignorant.

• 5e hold people liable for not being able to detect something.

• 6oes the failure to perceive the ris deviate from the ordinary person standard>

• rading +ssue - 7ttempting to discern how serious an offense the actor has committed. 6istinction between

more serious and less serious offenses for the purpose of sentencing.

o $ommon %aw 7pproach - 7ll murders are graded e4ually.

o )$ - 7ll murders graded e4ually.

o 6egrees of urder approach -

,irst degree murders are death eligible& and in many jurisdictions& life sentence mandated for first

degree murders.

• 5illful& deliberate& and premeditated formulation is the most central formulation.

30



o 6eliberate means the actor has reflected on the nature of the decision he is about to mae. 7

deliberation is made on the act.

There must be some indication that the actor did deliberate on the matter before acting.

o )remeditation - the actor has a plan. The illing is done after a period of time for prior

consideration.

7ny interval of time between the forming of an intent to ill and the e!ecution of that

intent& which is of sufficient duration for the accused to be fully conscious of what he

intended& is sufficient to support a conviction for first degree murder.• The problem is this distinction does not capture the most heinous crimes. +t maes it difficult to

catch cases at the margins where culpability isn't the same as the degrees of intentionality that

correspond with the degrees of murder.

Rape - Con&uct Crime

• 9o $ausation Element

• )$ is the older approach

o A031.3 - Rape and Related "ffenses

;3< Rape - 7 male who has se!ual intercourse with a female not his wife if guilty of rape under

certain conditions.

• $an only be committed by a male

• Re4uires se!ual intercourse ;conduct re4uired<

• @ictims must be female.

• The female must not be the wife of the perpetrator.

o +ndividuals living together as man and wife are considered married for the purpose of

rape& regardless of actual status.

o +ndividuals formerly married and still legally married are married for rape regardless of

realities of separation. /udicial& formal separation re4uired.

• Triggering $onditions:

o ,orcible $ompulsion Rape - he compels her to submit by force or by threat of imminent

death& serious bodily injury& e!treme pain or idnapping& to be inflicted on anyone.

$ompelled to submit by force of threat. Two elements:

• ,orce*Threat

o Threat is constructive force.

• 9on-$onsent - absence of consent implicit in compulsion

o /ust saying 9o is not enough without some additional evidence of force.

o $an't bring up a istae of ,act defense as to defense because of mens rea

re4uirement of reclessness. ,orce Re4uired - any amount of force sufficient to overcome sufficient resistance by

the victim.

• Resistance Re4uirement - court will loo to whether the victim resisted

sufficiently

ens Rea at a minimum is reclessly because of A0.B0;1<.

• 7ctor must be at a minimum recless with respect to whether his conduct amounts

to compulsion and whether he is securing consent via force or threat. This version of rape is under the most focus of the contemporary reform movements.

31



o +mpairing the victim - he has substantially impaired her power to appraise or control her

conduct by administering or employing without her nowledge drugs& into!icants or other

means for the purpose of preventing resistance ens rea at a minimum is reclessly because of A0.B0;1<

+mplied specific intent element - he has a further purpose of impairing his victim via

drugs& into!icants& etc. for the purpose of se!ual intercourse.

o The ,emale is unconscious

+ncludes where the female is asleep. ens rea at a minimum is recless.

o #tatutory Rape - The female is less than 3B years old.

A031.2;3< - 9o mistae of age defense.

#trict %iability for statutory rape with respect to age of the victim.

$ulpable mental state is reclessness for the other elements.

• Rape is a felony of the second degree unless ;i< in the course thereof the actor inflicts serious

bodily injury upon anyone& or ;ii< the victim was not a voluntary social companion of the actor

upon the occasion of the crime and had not previously permitted him se!ual liberties& in which

cases the offense is a felony of the first degree.

;0< ross #e!ual +mposition ;#+< - 7 male who has se!ual intercourse with a female not his wifecommits a felony of the third degree

• #ame three re4uirements: actor is male& victim is female& victim is not his wife& conduct is

se!ual intercourse.

• Residual compulsion - actor compels the victim to submit by any threat that would prevent

resistance by a woman of ordinary resolution.

o "bjective standard - what would a woman of ordinary resistance consent to>

o 7ny threat& not simply threats of violence.

o $overs threats not covered by Rape forcible compulsion rule.

o ens Rea - Reclessness.

• He nows that she suffers from a mental disease or defect which renders her incapable ofappraising the nature of her conduct.

o ens Rea: 7ctor must now that the victim suffers from this mental disease or defect.

• He nows that she is unaware that a se!ual act is being committed upon her or that she submits

because she mistaenly supposes that he is her husband.

o Rape by fraud or rape by deceit where the actor engages in an active campaign to capture

the victim.

o ens Rea: actor must now that the victim is unaware of situation.

• This is graded as a third degree felony with a ma!imum sentence of years. 9ot a highly

serious felony.

o A031.? - #e!ual 7ssault - a person who has se!ual contact with another not his spouse& or causes& suchother to have se!ual conduct with him& is guilty of se!ual assault.

#e!ual contact is any touching of the se!ual or other intimate parts of the person for the purpose of

arousing or gratifying se!ual desire.

• #pecific intent crime - for the further purpose of arousing or gratifying se!ual desire.

6efault mens rea for general elements is reclessness.

• any of the sub-varieties re4uire nowledge of the attendant circumstances.

• #trict %iability for offenses having to do with children or age.

3?



$riminalies a broad range of unwelcome instances of se!ual contact.

• Re4uires nowledge of the attendant circumstances

• (road circumstances where consent to the se!ual contact is defective or couldn't be given in a

meaningful way.

o ;3< he nows that the contact is offensive to the other person

o ;0< he nows that the other person suffers from a mental disease or defect which renders

him or her incapable of appraising the nature of his or her conduct.

o ;1< he nows that the other person is unaware that a se!ual act is being committed.o ;?< the other person is less than 3B years old

o ;< he has substantially impaired the other person's power to appraise or control his or her

conduct& by administering or employing without the other's nowledge drugs& into!icants&

or other means for the purpose of preventing resistance.

o ;2< the other person is less than K32L years old and the actor is at least KfourL years older

than the person.

#trict %iability - 6eviation on #tatutory Rape - where the victim is an older teenager

;commonly between 32 or 3I years old< and there is a gap in age between the actor

and the victim. This is 4uantified as a misdemeanor.

o ;I< the other person is less than 03 years old and the actor is his guardian or otherwiseresponsible for general supervision of his welfare

o ;=< the other person is in custody of law or detained in a hospital or other institution and

the actor has supervisory or disciplinary authority over him.

o A031.2 - eneral Rules and 6efinitions.

Jou cannot use a mistae of age defense against a statutory rape charge because it is a strict

liability crime. $ontroversial aspects of Rape %aw that are under scrutiny and being reformed by the common law

• arital +mmunity - a husband cannot rape his wife. This has all but been abandoned in all

jurisdictions.

• endered understanding of the perpetrator and victims - only men can commit rape& and onlywomen can be victims of rape.

• $orroboration Rule - re4uires that the prosecution for rape cannot rely e!clusively on the

testimony of the victim to secure a rape conviction. Has been abandoned in contemporary

common law jurisdictions.

• 8tmost Resistance Rule - re4uires the victim to resist to the utmost. Robust blanet resistance

re4uirement. The amount of resistance and whether there was resistance is relevant in

determining if the elements of Rape have been satisfied. Evidence of non-resistance or

4uestionable resistance might be introduced by the defense and considered by the jury to

determine if reasonable compulsion in the case.

• )rompt $omplaint Rule - re4uires victims to report in a statutorily specified period of time

after the event in 4uestion for prosecution to be initiated. These were e!tremely compressed

timelines. Has been abandoned by most states.

• The )romiscuous $omplainant Rule*6efense - it is a defense for the actor to prove by a

preponderance of the evidence that the alleged victim had& prior to the time of the offense

charged& engaged promiscuously in se!ual relations with others.

3



o ost jurisdictions now have rape shield laws that bar this ind of evidence regarding the

victim's prior se!ual history.

• $autionary +nstructions - warned that it is easy for a victim to say they were subjected to se!ual

intercourse they didn't consent to by force or threat. These are also largely abandoned.

• $ommon law is the more progressive approach.

'nchoate Offenses(

• 7ll +nchoate offenses consist of conduct engaged in purposely with the objective of culminating in the

commission of an offense& but for one reason or another& has not culminated in the commission of the

offense.

o The conduct itself will not satisfy all the elements of the target offense by its very nature.

• A.B - rading of $riminal 7ttempt& #olicitation and $onspiracy:

o ;3< 7ll varieties are graded the same as the target offense& e!cept for ,irst 6egree ,elonies or capital

felonies which are downgraded to a 0nd degree offense.

o ;0< The court may e!ercise its power to mitigate an offense if the attempt& solicitation& or conspiracy is

so unliely to result in the actual commission of the crime.

o ;1< 7 person may be convicted of more than one offense defined by this 7rticle for conduct designed to

commit or to culminate in the commission of the same crime.

Jou cannot convict someone for attempt& solicitation& and conspiracy with respect to the planning of

one crime.

However& you can charge someone with multiple inchoate offenses - only one conviction will stand

• Attempt - )$ A.B3 -

o ;3< a person is guilty of an attempt to commit a crime if& acting with the ind of culpability otherwise

re4uired for the commission of the crime& he:

;a< purposely engages in conduct that would constitute the crime if the attendant circumstances

were as he believes them to be& or ;b< when causing a particular result is an element of the crime& does or omits to do anything with

the purpose of causing or with the belief that it will cause such result without further conduct on his

part

;c< purposely does or omits to do anything which under the circumstances 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.

o 7ctus reus -

6istinction between complete attempts and incomplete attempts:

• $omplete 7ttempts - the actor does every act planned& but is unsuccessful in producing the

intended result. E!ample - shooting and missing the victim.

o Results "ffenses - 7ctor thins they have done everything necessary to cause the result& but

for whatever reason the result doesn't happen.

o $onduct "ffenses - an attempt when the actor has completed a course of conduct but maes

a factual mistae about the attendant circumstances that renders the act non-criminal.

• +ncomplete 7ttempt - the actor does some of the acts that she set out to do but then desists or is

prevented from continuing by an e!traneous factor.

$ommon %aw 7pproach - did the actor's conduct involve more than mere preparation> #everal tests

developed:

32



• )ro!imity Tests - re4uired the prosecution to establish that the actor came close to committing

the offense. +n4uiry is: is what the actor has left to do so minimal that the actor came so close

to the actual commission of the offense& that it is warranted to characterie his conduct as

perpetration of the offense.

o )hysical )ro!imity Test - has the actor come so close to the commission of the offense that

he has in fact begun direct movement towards actual commission>

o 6angerous )ro!imity Test - does the actor come dangerously close to committing the

offense> Turns on how dangerous the offense is and the actor's physical pro!imity in committing

the offense.

o +ndispensable Element test - re-describes the pro!imity test. +s there some indispensible

aspect of the criminal endeavor that is not yet in control of the actor> 7ctor must come perilously close to committing the offense.

o )robable desistance test - in the course of ordinary events& would the crime be committed

in the absence of some e!ternal force interrupting the actor.

• Res +psa %o4uitur 8ne4uivocality test - does the actor's conduct& considered in isolation&

mae clear the criminal intentions>

o 6o not consider any e!trinsic evidence about the actor's intentions.o @ery high bard because we are looing at whether the conduct alone leads to criminal

intentions. )$ 7pproach - A.B3;3< - The actor must have committed a substantial step in a course of

conduct designed to culminate in the target offense.

• A.B3;0< - 7 substantial step is conduct that is strongly corroborative of an intent to commit the

target offense. The following are strongly corroborative acts:

o ;a< lying in wait& searching for or following the contemplated victim of the crimeC

o ;b< enticing or seeing to entice the contemplated victim of the crime to go to the place

contemplated for its commissionC

o ;c< reconnoitering the place contemplated for the commission of the crimeCo ;d< unlawful entry of a structure& vehicle& or enclosure in which it is contemplated that the

crime will be committed.

o ;e< possession of materials to be employed in the commission of the crime& that are

specially designed for such unlawful use or which can serve no lawful purpose of the actor

under the circumstances.

o ;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 those circumstances&C

o ;g< soliciting an innocent agent to engage in conduct constituting an element of the crime.

This is different from the free-standing charge of solicitation because this is just an

element the prosecution can use to establish that the solicitation is corroborative with

the actor's purpose to commit the crime himself. +t acts as a substantial step in the

actor's conduct.

• #ubjectivist approach - emphasis is on whether the actor's conduct confirms strongly other

evidence that we have about the actor's criminal intentions.

3I



o 5here we have clearly established criminal intentions& we need less strong evidence to

corroborate those intentions.

o Evidence is any evidence that the actor is embaring on a course of conduct to commit the

target offense. %oo at what the actor has done& what it suggests about his mental state& and evaluate

with other evidence we have regarding the mental state.

• A.B3;1< - a person who engages in conduct designed to aid another to commit a crime that

would establish his complicity under A0.B2 if the crime were committed by such other person&is guilty of an attempt to commit the crime& although the crime is not committed or attempted

by such other person.

• A.B3;?< - where the actor abandons their attempt& or renunciates their criminal purpose& which

is a complete and voluntary renunciation of purpose& there is a defense under the statute.

o ens Rea -

$ommon law - the specific intent to commit the target offense.

)$ 7pproach: The default is purpose.

• ust commit the actus reus purposely. ust purposely attempt to commit a crime.

• ust also meet mens rea for underlying target offense - peg the mens rea re4uirements to

underlying target offense.• 5ith respect to results elements - it also suffices for the prosecution to establish that the actor

believed the result would occur without further conduct on his part.

• 5ith respect to attendant circumstance elements of the target offense - the ens rea is

whatever mens rea is re4uired for the target offense. The mens rea for attempt is pegged to the

mens rea of the target offense.

o This means an attempt to commit statutory rape would not re4uire any mental state with

respect to the age of the victim.

o Rule of erger - a defendant cannot be convicted of both a completed offense and an attempt to commit

it.

o #pecial 6efenses:

+mpossibility - if the actor could not possibly commit an offense given the circumstances. $ould the

actor's conduct result in the commission of the target offense> Three forms:

• ,actual +mpossibility - the actor intends to commit acts that are prohibited in the criminal law&

but a factual circumstance unnown to him prevents the commission of that offense.

o #omething about the conte!t in which the actor is engaging in that renders it impossible for

the actor to commit the offense.

o 9ot a defense at the $% or the )$

o E!amples - actor attempts to pic an empty pocetC actor shoots a gun with intent to ill at

an empty bed.

• )ure %egal +mpossibility - the actor mistaenly believes that his intended course of conduct is

prohibited by criminal law. $rime is impossible because the law does not prohibit his conduct.

o +s a defense at the $% and the )$ because it negates an element of the crime.

o +t e!onerates the actor because there is no target offense to the course of conduct.

• Hybrid %egal +mpossibility - the actor's commission of the offense is impossible because the

actor maes a factual mistae about the legal status of some attendant circumstance element.

o +s a defense at the $% but is not a defense at the )$

3=



The )$ instructs us to evaluate the actor's conduct on the circumstances as he

believed them to be.

o E!ample - stealing free hot dogsC trying to pic the pocet of a statue.

7bandonment - A.B3;?< - re4uires that the actor abandon the criminal endeavor in a way that

manifests a complete and voluntary abandonment of criminal purpose.

• 5as not a defense under the $%.

• )$ recognies as an affirmative defense for attempt& solicitation& and conspiracy.

o "nly applies to $omplete attempts of result offenses and incomplete attempts. 6oes notapply to complete attempts of conduct offenses.

o @oluntary - ust be completely voluntary. i!ed motives where the actor has permissible

and impermissible motives for abandoning the effort does not satisfy the element of the

defense.

o $omplete - must be complete. erely postponing the criminal activity& or transferring to

some other victim& does not satisfy the element of the defense.

o 7ssault -

7t common law& assault was an attempt to commit a battery. The re4uirement of present ability

imported into the offense an even stricter notion of pro!imity to the completed act than

characteried under regular attempt law.• ayhem - a $% felony& consisting of an injury permanently impairing the victim's ability to

defend himself or annoy his adversary.

• (atter - a $% misdemeanor covering any unlawful application of force to the person of another

willfully or in anger. ,orce includes any ind of offensive and unlawful contact.

• 7ssault - an attempt to commit a battery.

)$ - A033.3 - eliminates the $% categories and discards the greater pro!imity rule for assault.

• ;3< #imple 7ssault - 7 person is guilty of assault if he:

o ;a< attempts to cause or purposely& nowingly& or reclessly causes bodily injury to another.

7ttempt is imbedded in the statute - loo to A.B3 to interpret attempt.

o ;b< negligently causes bodily injury to another with a deadly weaponC or o ;c< attempts by physical menace to put another in fear of imminent serious bodily injury.

o #imple assault is a misdemeanor unless committed in a fight or scuffle entered into by

mutual consent& in which case it is a petty misdemeanor.

• ;0< 7ggravated 7ssault - 7 person is guilty of aggravated assault if he:

o ;a< attempts to cause serious bodily injury to another& or causes such injury purposely&

nowingly& or reclessly under circumstances manifesting e!treme indifference to the value

of human lifeC or

o ;b< attempts to cause or purposely or nowingly causes bodily injury to another with a

deadly weapon

o 7ggravated assault under ;a< is a felony of the second degreeC aggravated assault under ;b<is a felony of the third degree.

o )unishing )re-7ttempt $onduct-

%awmaers draft criminal statutes to redefine what e!tra conduct is needed to trigger criminal

liability. #tatutes criminaliing threats is an attempt to push the attempt line further bac.

• Threats must at a minimum communicate to the target some information that is intended to

intimidate the target to engage in or refrain from engaging in some ind of conduct.

3G



• Solicitation - )$ A.B0 - involves the asing& enticing& inducing& or counseling of another to commit a

crime. The solicitor conceives the criminal idea and furthers its commission via another person by

suggesting to& inducing& or manipulating that person.

o Elements from A.B0;3<:

$onduct Element - 7ctor must command& re4uest& or encourage another person to engage in

criminal conduct. ens Rea - actor must do this with the purpose of promoting or facilitating the commission of the

offense. 7ctus Reus - 7ctor must solicit:

• $onduct that constitutes committing the target offense

• $onduct that constitutes an attempt to commit that offense.

• That the solicitee engage in conduct that would establish the actor's complicity in the

commission of the offense.

o $an be soliciting for assistance in aiding the solicitor in committing a criminal offense.

o A.B0;0< - +t is immaterial under ;3< that the actor fails to communicate with the person he solicits to

commit a crime if his conduct was design to effect such communication.

See State v. Cotton - an tries to solicit his wife into convincing his daughter not to testify against

him. 7s long as the communication is intended to reach the target party& solicitation has been committed.

o A.B0;1< - Renunciation defense - similar to abandonment defense in attempt but has more re4uirements:

ust have a voluntary and complete renunciation of criminal purpose.

ust also persuade the solicited individual not to complete the offense& or

ust act to prevent the solicitee from engaging in acts that represent criminal liability under

A.B0;3<.

• Conspiracy - a partnership in criminal purposesC a mutual agreement or understanding& e!press or implied&

between two or or persons to commit a criminal act or to accomplish a legal act by unlawful means.

o +t is the agreement itself which gives rise to criminal liability

o )$ A.B1 - ;3< 7 person is guilty of conspiracy with another person or persons to commit a crime if with the

purpose of promoting of facilitating its commission he:

• ;a< agrees with such other person or persons that they or one or more of them will engage in

conduct that constitutes such crime or an attempt or solicitation to commit such crimeC 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. ;0< #cope of $onspiratorial Relationship - +f a person guilty of conspiracy nows that a person with

whom he conspires to commit a crime has conspired with another person or persons to commit the

same crime& he is guilty of conspiring with such other person or persons& whether or not he nows

their identity to commit such crime. ;1< $onspiracy with ultiple $riminal "bjectives - +f a person conspires to commit a number of

crimes& he is guilty of only one conspiracy so long as such multiple crime are the object of the same

agreement or continuous conspiratorial relationship. ;< "vert 7ct - 9o person may be convicted of conspiracy to commit a crime other than a felony of

the first or second degree& unless an overt act in pursuance of such conspiracy is alleged and proved

to have been done by him or by a person with whom he conspired.

0B



;2< 7bandonment defense available.

o ens rea - )urposely -

6ual mens rea re4uirement:

• 7greement - actor must purposely agree

• 7ctor must have the purpose of facilitating or promoting the commission of the target offense.

ere nowledge is not enough- must prove purposely.

$onspiracy %iability for actors who furnish an instrumentality to another with the nowledge that

the instrumentality will be used in the commission of an offense.• The )$ holds that mere nowledge is not enough to support a finding of purpose for

conspiracy. 9eed nowledge with something e!tra or an additional factor in order to fulfill the

mens rea of conspiracy. $ourts can loo for:

o 6irect Evidence of )urpose

o Evidence of #pecial +nterest in the criminal venture - actor has some interest in furthering

the criminal enterprise& more than just providing the instrumentality to the customer.

o +f the Target "ffense is a serious crime - fact finders are allowed to infer purpose from

nowledge if the target offense is a sufficiently serious felony. 7ttendant $ircumstances - will treat as purposely. 7t a minimum the actor must be aware of the

attendant circumstances elements of the target offense because of A0.B0.o 7ctus Reus - Two parts:

7greeing or

7greeing to aid

"vert 7ct - de minimus re4uirement in both $% and )$. This is any act committed by any of the

co-conspirators in furtherance of the criminal agreement.

• See Commonwealth v. Azim - case involving a guy driving the car for two others who assault

and rob a guy. ust have evidence of an agreement ;planning and deciding to wor together< prior to the

commission of a crime. ere presence alone is not enough to establish conspiracy.

• See Commonwealth v. Coo - 3 brother rapes a girl while the other brother encourages him isnot conspiracy because no evidence of agreement.

o $ommon %aw )rocedural conse4uences:

E!ception to the Hearsay Rule for #tatements made by co-conspirators - as long as the statement

was made during the course of the conspiracy or in furtherance of the conspiracy. #pecial /oinder Rules - the prosecution may choose to try co-conspirators in a single proceeding

before a single jury. 7 conspiracy charge can be brought in any jurisdiction where any act was done by the actors in

furtherance of the conspiracy or where any of the co-conspirators are located. The actual commission of the target offense does not merge with the conspiracy charge for

sentencing purposes.• The )$ strictly says that you merge the conspiracy and the target offense.

)lurality re4uirement - had to establish that two persons were in fact jointly conspiring to commit

the target offense. 9eeded 0 individuals guilty of conspiracy in order for anyone to be guilty of

conspiracy.

03



• $reated problems where one party is only feigning agreement and never actually intends to

participate in the criminal enterprise. 7lso creates problems where an actor conspired with an

undercover law officer.

• )$ abandons this re4uirement in A.B1;3< by defining conspiracy as allowing for a unilateral

agreement.

• )olicy reasons for having +nchoate crimes:

o 8ltimately want to prevent the actual offense& so we punish people who fall short of committing the

crimes.o %aw Enforcement Rationale - necessary to provide a clear legal basis for law enforcement to intercede in

the commission of events that could lead to a crime.

o #ometimes the attempt is just as culpable as actually committing the target offence.

o 5e want to give actor's a chance to abandon their target.

Accomplice Lia)ility

• $ircumstances in which actors are responsible for the commission of an offense by another person.

o )rosecutors use this as a tool to hold the accomplice liable for the crime committed.

• $ommon %aw Terminology:

o )rincipals -

)rincipal in the ,irst 6egree - those persons who physically commit& or attempt to commit& the

crime. 7lso referred to as The )rimary 7ctor or )rimary )erpetrator. )rincipal in the #econd 6egree - )ersons who fulfill two re4uirements:

• 7ctor is 4ualified as an aider or abettor. They themselves did not commit the offense& but they

helped or encouraged the principal in the first degree to commit the offense.

• They are physically or constructively present when the actor commits the offense.

o $onstructive )resence - are pro!imately close to the commission of the offense& and are

assisting the principal to commit the offense. E!ample - a loo out& or a get-away driver.

o 7ccessory -

7ccessory before the ,act - also needs to be an aider or abettor& but the assistance occurs in advance

of the commission of the offense. +s not present during the commission of the offense. 7ccessory after the ,act - provides some assistance to the actor after the actor has committed the

offense& with the nowledge that the actor committed the offense& and the assistance provided is

either in avoiding detection& avoiding arrest& or avoiding trial and punishment.

• odern %aw - $urrent approach taen by a vast majority of jurisdictions.

o )rincipal in the ,irst degree - still e!ists and is the principal actor who committed the offense.

$omplicity liability is derivative of the principal actor. 5e see to impute criminal liability onto the

accomplice.

o 7ccomplices - merges the )rincipal in the #econd 6egree and 7ccessories (efore the ,act into one type.

5hat the actor complicit in the commission of the offense by the principal. Referred to as the #econdary

actor.

o 7ccessories after the fact are generally not punished as accomplices. 8nder the )$ they are not

punished as accomplices at all. )roviding assistance after the commission of the offense does not suffice

to impute the criminal conduct of the primary actor to the secondary actor in contemporary law.

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• )$ A0.B2 - %iability for $onduct of 7notherC $omplicity:

o ;3< 7 person is guilty of an offense if it is committed by his own conduct or by the conduct of another

person for which he is legally accountable& or both.

o ;0< a person is legally accountable for the conduct of another person when:

;a< acting with the ind of culpability that is sufficient for the commission of the offense& he causes

an innocent or irresponsible person to engage in such conductC or

;b< he is made accountable for the conduct of such other person by the $ode or by the law defining

the offenseC or ;c< he is an accomplice of such other person in the commission of the offense.

o ;1< a person is an accomplice of another person in the commission of an offense if:

;a< with the purpose of promoting or facilitating the commission of the offense he:

• ;i< solicits such other person to commit itC or

• ;ii< aids or agrees or attempts to aid such other person in planning or committing itC or

• ;iii< having a legal duty to prevent the commission of the offense& fails to mae proper effort so

to doC or ;b< his conduct is e!pressly declared by law to establish his complicity.

o ;?< 5hen causing a particular result is an element of an offense& an accomplice in the conduct causing

such result is an accomplice in the commission of that offense& if he acts with the ind of culpability& ifany& with respect to that result that is sufficient for the commission of the offense.

o ;2< 8nless otherwise provided by the $ode or by the law defining the offense& a person is not an

accomplice in an offense committed by another person if: ;a< he is a victim of that offense& or

;b< the offense is so defined that his conduct is inevitably incident to its commissionC or

;c< he terminates his complicity prior to the commission of the offense and

• ;i< wholly deprives it of effectiveness in the commission of the offense& or

• ;ii< gives timely warning to the law enforcement authorities or otherwise maes proper effort to

prevent the commission of the offense.

o ;I< 7n accomplice may be convicted on proof of the commission of the offense and of his complicitytherein& though the person claimed to have committed the offense has not been prosecuted or convicted

or has been convicted of a different offense or degree of offense or has an immunity to prosecution or

conviction or has been ac4uitted.

o 7ctus Reus -

7t $ommon %aw was aiding and abetting - helping or encouraging another person in the

commission of the offense. )$ - broader range of acts that will suffice to establish the actus reus for the accomplice:

• #oliciting the other person to commit the offense - means solicit under the meaning of A.B0&

o +s distinct from #olicitation in A.B0 in that the actor must tae an additional step of

attempting to commit the target offense.• 7iding another person in the planning or commission of the target crime.

o 7greeing to aid such other person in planning or committing- same conduct re4uired in

conspiracy under A.B1

• 7ttempting to aid a person in planning or commission of the offense.

o 7ttempt within the meaning of A.B3

• 5hen having a legal duty to prevent the commission of the offense& failing to mae a proper

effort to do so ;5on't be on final<.

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ere presence is insufficient to establish complicity.

• ere presence even when coupled with nowledge of illegality is insufficient to establish the

actus reus. 6e inimus 7ssistance - Even trivial assistance or encouragement will suffice to establish the

conduct element in complicity.

• The assistance or encouragement does not need to be causal of the criminal activity.

Even in circumstances where there is ero actual aid& as long as there is an attempt to aid& the actus

reus element has been fulfilled. +n cases where the principal commits no crime at all& we loo to A.B3;1< - 7 person who engages in

conduct designed to aid another to commit a crime that would establish his complicity under A0.B2 if

the crime were committed by such other person& is guilty of an attempt to commit the crime&

although the crime is not committed or attempted by such other person.

• This is an 7ttempt - not accomplice liability.

o ens rea -

6ual +ntent:

• )urposive $onduct - actor must harbor the purpose of engaging in conduct that amounts to one

of the ? actus reus elements.

• The conduct must be engaged in for the further purpose of promoting or facilitating the

commission of the target offense. 7ttendant circumstances - will be purpose& although the )$ is specifically vague about this.

#eparate ens rea regime for Results elements crime - A0.B2;?< - 4uestion is whether the actor

harbored any mental state that will suffice in the definition of the target offense. )egging the mens

rea to that of the target offense.

• +n many cases where A0.B2;?< applies& it is also proper to e!plore direct liability for the actor if

the assistance itself is causal to the underlying offense. +f the aid itself is causal ;but for the aid

the commission wouldn't happen<& then can analye under the target offense.

• 6o not have to peg the accomplice to the same level offense as the principal actor. 7lso& don't

have to wait for the principal's charge or conviction.

o 9atural and )robable $onse4uences 6octrine - "nly part of the $%& not in the )$M ? step in4uiry:

Has the primary actor committed a crime>

Has the secondary actor acted in a manner that would mae him an accomplice in the commission of

that original offense>

6id the primary commit some other offense in the course of committing the initial offense>

+f yes& was the commission of this other offense a natural and probable conse4uence of the original

offense for which the accomplice is complicit> +f yes& than the accomplice is also guilty of that other

offense.

*eneral +efenses

• 7ffirmative 6efenses - circumstances in which actors are e!onerated despite the fact that their conduct

satisfies the definition of the offense.

o (urden of )roof carried by the prosecution to prove the absence of the elements of an affirmative

defense.

o The defendant must provide sufficient evidence for the defense to be put in contention.

• ,ive types of 6efenses:

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o ,ailure of )roof 6efenses - Elemental defense. #ome claim advanced by the defendant negatives a

material element of the offense.

9ot an affirmative defense

E!ample - istae

o "ffense odifications - "ffense specific rules that describe circumstances in which actors are

e!onerated despite the fact that their conduct fulfills the definition of the offense. E!ample - a parent paying a idnapper& or businessman paying a monthly e!tortion payment to a

raceteer. 7bandonment is an offense modification rule.

7ffirmative defense in a vast majority of jurisdictions.

o /ustifications - the harm caused is outweighed by the need to avoid an even greater harm or to further a

greater societal interest. 7ffirmative defenses.

$ircumstances in which the actor acts in a way society would want them to act when confronted

with circumstances that for him to choose. eneral /ustification 6efense - justifies circumstances in which the actor has some forced choice

between two evils and the actor maes the choice society would want him to mae.

o E!cuses - admits that the deed may be wrong& but we e!cuse the actor because conditions suggest thatthe actor is free from moral-blame or the blame is diminished for the deed. 7ffirmative 6efense

E!ample - +nsanity defense.

o 9on-e!culpatory )ublic )olicy 6efenses - also called e!trinsic public policy defenses. E!onerates the

actor for public policy reasons that have nothing to do with the specific criminal prohibition charged& or

with the administration of the criminal justice system. E!ample - #tatute of %imitations or diplomatic immunity.

• Self +efense - A1.B? -

o ;3< The use of force upon or toward another person is justifiable when the actor believes that such force

is immediately necessary for the purpose of protecting himself against the use of unlawful force bysuch other person on the present occasion. )$ has a subjective formulation - the actor believes

• "bjective chec in A1.BG

• The fact-finder has the discretion to determine which aspects of the actor's situation ought to be

taen into account. The fact finder taes into account any aspect of the situation that they thin

has a bearing on the actor's culpability.

• 7t $ommon %aw - the actor must reasonably believe some circumstances are present -

objective 4ualification on actor's sincerely held belief. The 7ctor must believe that the use of force is immediately necessary to protect himself.

• $ommon %aw ,ormulation - The use of force must be necessary to protect against the imminentthreat of an unlawful use of force.

o The threat the actor must see to protect himself from must be in the very near term about to

be visited on the actor.

• 8nder the )$ formulation - the moment at which the actor must use force in order to

effectively protect himself must be immediate& even if the actual application of force is not.

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• )olicy reason for deviation - to allow battered wives to bring a self-defense claim against their

husbands.

o )$ formulation allows for the actor to believe it is immediately necessary to use for to

effectively protect themselves from a threat that will only actualie in the future. The use of force must be immediately necessary for the purpose of protecting the actor from the

unlawful use of force by the target.

o ;0< $ontains %imitations on this justification*e!cuse:

#trict proportionality re4uirement with the use of deadly force.• 6eadly force is any use of force the purpose of which is to cause death& or the actor nows

creates a substantial ris of death or serious bodily injury.

• 7n actor cannot use deadly force to protect himself from non-deadly force.

• )$ A1.B?;0<;b< The use of deadly force is not justifiable under this #ection unless the actor

believes that such force is necessary to protect himself against death& serious bodily harm&

idnapping or se!ual intercourse compelled by force or threatC nor is it justifiable if:

o ;i< the actor& with the purpose of causing death or serious bodily injury& provoed the use of

force against himself in the same encounterC or 7nalog to the +nitial 7ggressor rule at the $%.

o ;ii< the actor nows that he can avoid necessity by using such force with complete safety byretreating or by surrendering possession of a thing to a person asserting a claim of right

thereto or by complying with a demand that he abstain from any action that he has no duty

to tae& e!cept that:

• 7nalog to the 6uty to Retreat at the $%. Retreat N

• The re4uirement that the actor surrender an object or comply with abstaining from

action is not widely observed in most jurisdictions. ;3< the actor is not obliged to retreat from his dwelling or place of wor& unless he was

the initial aggressor or is assailed in his place of wor by another person whose place of

wor the actor nows it to be

• 7nalog to the $astle 6octrine and includes a wor place e!ception.

$ommon %aw %imitations:

• 7ctors who are the initial aggressor are denied the availability of the defense.

o 7n actor is an initial aggressor if the actor engages in affirmative conduct that is unlawful&

and the actor reasonably believes that the conduct will provoe a fight where someone

might die.

o 6ifferent from the )$ which only has narrow re4uirement that the actor not be the

aggressor for the purpose of provoing force.

• There e!ists a duty to retreat.

o 9aturally follows from the concept of necessity.

o $astle E!ception - actors are not re4uired to retreat from their homes. any jurisdictions

e!tend this to include the outside spaces around the home. #tand Jour round %aws - controversial laws in some jurisdictions that eliminate a duty

to retreat. Has the effect of treating the actor as though they are always in their home.

o A1.BG - has to do with the actor maing a mistae in forming the re4uisite beliefs in using the unlawful

force. +f the actor believes something& and we thin he was right& then there is no 1.BG in4uiry.

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;3< +f the actor maes a mistae of law that is based on an erroneous interpretation of the code& the

actor is held strictly liable and the defense is unavailable.

• isunderstanding what the law re4uires means you may not invoe the defense.

;0< "bjective chec on reasonable -if the actor is recless or negligent in forming the belief that

they must form under 1.B?& then they may not invoe the defense with respect to a charge that

re4uires only reclessness or negligence.

• 9ecessity*eneral /ustification 6efense - A1.B0

o Elements: 7ctor must believe that the conduct that is otherwise criminal is necessary to avoid a harm.

• #ubjective formulation.

The harm that the actor sees to avoid must be greater than the harm sought to be avoided by the

law criminaliing his conduct.

• "bjectively determined by the judge*jury.

o /udge is given a stronger role as a gate-eeper.

ust also establish that there is no obvious legislative intent to bar application of the defense to the

actor's conduct. Two circumstances where the defense would be e!cluded on grounds of legislative

intent:

• 5here the legislature has in fact passed a law which tells us what choice we want the actor tomae under the circumstances. +f the legislature has spoen& the actor must follow.

• 5here the legislature has enacted a provision governing in general the ind of choice the actor

faces& the actor must comply with any conditions that the legislature specifies in that provision.

o "bjective limitation embedded in A1.B0;0< - the 4uestion is whether the actor reclessly or negligently

brings about the circumstances under which he faces a forced choice.

+f he brought the circumstances about& he may not invoe the defense for which reclessness or

negligence will suffice.

o $ommon %aw comparisons:

The actor must reasonably believe their conduct is necessary to avoid a 4ualified harm.

Re4uires the harm the actor sees to avoid is an imminent harm or threat. The general justification defense could not be invoed with respect to homicide. Jou could not see

to justify culpably illing another person.

Documents

Crim Law - Jinks - Spring 2014 (1)