I. BASIC CULPABILITY DOCTRINESA. Traditional Concepts

1. Reasons we punish:a. Deterrence – not very effectiveb. Rehabilitation – not effective at allc. Retribution – fairly effectived. Public safety – effective

2. Always remember the balancing test (individual/personal autonomy);ignorance of the law is rarely an excuse; we punish the conduct that isvoluntary (goes to mens rea)

3. Mens Rea – the mental state required for the crime; conduct corroboratesthe mens rea (Morissette v. U.S.)a. Purpose, knowledge, recklessness, negligence, or SL b. Specific Intent (actual subjective intent – thinking, planning, or

hoping at the time of the offense) – usually proven bycircumstantial evidence(1) Elements

(a) General Intent(b) Purpose

c. General Intent4. Intoxication as a defense

a. Actus Reus – (People v. Hood)(1) Evidence of extreme intoxication is admissible to show that

did not physically perform the required conduct in aspecific intent crime – require the basically to be comatose

(2) Evidence of voluntary intoxication is not admissible toshow that ? did not engage in voluntary act in a generalintent crime

b. Mens rea (1) Admissible only to show that D lacked the capacity to form

the required specific intent. Lack of intent is a mitigatingdefense – lessens it to the highest possible general intentcrime.

(2) Inadmissible for negating general intentc. Involuntary intoxication is a defense

B. Regulatory Offenses & Strict LiabilityC. Conduct RequirementD. Model Penal Code Reform

II. DISCRETION & RULE OF LAWA. Vaguensee, Strict Construction, Principle of LegalityB. Law, Morality, & Judicial AuthorityC. Sentencing Discretion

D. Capital PunishmentIII. CRIMINAL HOMICIDE

A. Malice1. Definition

a. Murder: Murder is causing the death of another with “maliceaforethought”

b. Malice aforethought can be express or implied and is required bythe common law(1) Intent to kill (Express malice)

(a) presumed if used of deadly weapon)(b) Knew death will result (c) Transferred intent

(2) Intent to inflict serious bodily injury(3) Felony murder(4) Depraved mind murder - 2 degreend

(a) Actual awareness of risk(b) Extreme indifference to value of human life

i) Maligned heartii) Antisocial behavior

B. Degrees

1. MPC does not grade murdera. But allow defense of Extreme Emotional Disturbance b. MPC: 3 grades: murder (murder or reckless depraved mind

homicide), manslaughter (reckless homicide or murder with EED),negligent homicide

2. CL Murders: a. Murder 1

(1) Actus Rea: Unlawful taking of a life(2) Mens rea: willful

(a) Malicei) probableii) malice aforethought

(b) Specific intent: Premeditation and deliberationi) timingii) capacity

(3) imputation of malice: Felony murder listed by statute

b. Murder 2(1) Malice but no premeditation(2) imputation of malice: killing during felony involving non

listed felonies

(3) Reckless homicide and depraved mind muder

c. Murder 3 - only in certain state (Pa)(a) reckless killing(b) malice

3. Mitigation evidencea. Self defenseb. Provocationc. Insanity

C. Murder 1: Premeditation

1. Premeditation & Deliberationa. Mental process: deliberate formation of and reflexion upon the

intent to take a life.b. Way to prove

(1) plan: buy weapon,...(2) Motive(3) Manner of killing

2. Defense against premeditation (Caruso)a. One same act (no separation of actions) - no deliberationb. Mistaken Belief: an honest and reasonable mistaken belief can

negate required element, lowering charge from murder one tomurder two. (People v. Caruso)

c. No planning for attack: if the attack was not planned, neither wasthe killing. (State v. Bingham, State v. Ollens)

d. Diminished capacity(1) circumstance: sex, rape, ...(Bingham)

e. Intoxicationf. Provocation

(1) Manslaughter(a) actual action(b) provoke reasonable person

(2) Murder 2(a) Perceived provacation(b) Mistake of fact

i) CL: reasonable or unreasonable provocation ii) MPC: Reasonable

D. Murder 2/Manslaughter: Unintentional Killing & Implied Malice

1. CL Implied Malice

a. Definition (Malone)(1) act of gross recklessness: reasonably anticipate that death

to another is likely to result, exhibit: (2) Wantonly, recklessly, and in disregard of consequences, or(3) Wicknedness of disposition, hardness of heart, cruelty ,

recklessness of consequences and a mind regardless ofsocial duty

(4) Proved that the was “the state or frame of mind termedmalice”

b. Elements (Berry & Watson)(1) Intentional act (objective)(2) abandonned and malignat heart

(a) appreciation of the high degree of risk (subjective)(b) that is objectively present (Watson)(c) high probability that act done will result in death(d) Subjective awareness of that risk (Berry)(e) must be done with intent

i) a base antisocial motive (not illegal per se)ii) and with wanton disregard for life.

a) Illegality of underlying conduct notan element but may be relevant toissue of subjective intent.

(3) Model Penal Code §210.2

(a) 210.1: define criminal homicide: i) murder (210.2) - felony 1 degreest

a) purposely or knowingly, orb) Depraved mind murder:

1) recklessly (know risk +conscious disregart)

2) under circumstancemanifesting extremeindifference to human life

ii) manslaughter (210.3) - felony 2 degreend

a) recklessly, orb) under influence of extreme mental

disturbance), iii) negligent homicide (210.4) - felony 3rd

degreea) negligently

(b) Implied malice in 210.2i) circumstances manifesting extreme

indifference to value of human lifeii) Presumed (impled) if engaged in

commission, attempt, or flight after

committing or attempting to commita) robberyb) rapec) deviated sexual intercourse by force

or threat of forced) arsone) burglaryf) kidnappingg) or felonious escape

(c) Interpretationi) Distinction between reckless manslaughter

and reckless or depraved mind murder: a) Register holding: no diffence with

with reckless murder1) “depraved indifference for

human life” not an element ofthe crime

2) “objective circumstancerelating to a factual setting”

3) No defense of intoxication inthat case (NB: intoxicationnot defense againstrecklesness)

b) Dissent: Mental element 1) more than reckless: such

gross indifference tosubstantial risk is akin tointentional murder.

2. Manslaughter: Unitentional but reckless killing without malice bc ofmitigating circumstance

a. No malice(1) extenuating evidence

b. Intoxication defense(a) Murder is specific intent (b) Intoxication defense against all specific intent

i) Negate element of maliceii) critical: when malice was formed?

a) Whitfield: malice formed priorintoxication (drive and keepdrinking)- no defense

c. Provocation (negates intent)(1) “Heat of passion”

(a) Must be caused by adequate provocation (legally)i) Mere words are not enough, you need

something moreii) assault, battery, mutual fights, catching

spouse in act of adultery. (Holmes,Chevalier).

(b) Provoked by a “triggering event”(c) Reasonable Man Standard: ?’s reaction from

their subjective state of mind must have beenreasonable as measured by objective standard ofsomeone in their same mental state

d. Mistake of fact(1) If ) honestly/reasonably but mistakenly reaches a

conclusion, murder can be reduced to manslaughter

3. Involuntary manslaughter through wanton or reckless conduct (Welanski)(1) Wanton or reckless conduct:

(a) affirmative action(b) intentional failure to take care in disregard of

probable harmful consequences when duty of careexist.

(2) More than negligencei) Voluntary taking the risk

a) Danger grave and apparentb) know the risk (obj), orc) reasonable man would have realized

under circumstances (subj)d) consciously run the risk

ii) risk higher(b) Defense: Reliance on official statement

i) CL: no defenseii) MPC 2.04(3)(b): reasonable reliance on

official statement (Marreno)

(3) Breach of Duty (Williams)(a) Duty - affirmative duty

i) parentalii) common law duty

(b) Breach of duty: objective standardi) No adjustment to indiv. Capacity

(c) Proximate causei) timing: reasonable notice?ii) would have reasonable actions saved life

(d) Damages: death

E. Felony Murder Rule1. Definition:

a. Killing of a human being (any killing, even accidental) committedin perpetation or attempt to perpetrate any felony.

b. Michigan (Aaron)(1) absence of

(a) intent to kill(b) premeditation(c) deliberation(d) implied malice

(2) killed victim in the commission or attempt commission offelony

2. Policy: Influence behavior of felons: a. careful felons and avoid accidental or reckless homicides.

3. Key elements: a. Substitute for actual malice: automatic imputation of maliceb. Graded as murder 1 degreest

4. Evolution: a. Victim can be innocent or co-felons (Hoang)b. Agency rule (Canola)

(1) Liability limited to death caused by person acting in concert

(2) Exception: when D forced deceased to occupy a place ofdanger in order to carry out crime

(3) Limit rule but does not comply with policyc. Alternative: Proximate rule

(a) responsibility for any death(b) Not adopted by court

i) extend felony murder instead of limit

ii) No relation to blameworthinessd. Modern rule = Limitation on felony murder / policy goal

(1) Death of co-felon not felony murder(2) Otherwise: proximate rule

5. CL limitations summarized by MPC (Aaron)

(1) Felonious act must be dangerous to life

(a) Case of 2 degree murder felony based (Patterson)nd

i) Murder 1: Specific list of felony (risk +knowledge)

ii) Murder 2: No specific list but “inherentlydangerous felony”

iii) Test: high probability to result in deathiv) Probability in the abstract:

a) not based on facts of caseb) depends on the nature of the felonyc) Should be determine by trial court

v) Dissent: a) no drug high probability of death in

the abstractb) Child molestation no high

probability of death in the abstract

(2) homicide must be a natural and probable consequence offelonious act (act done in furtherance of felony & notcoincidental to the perpetration of felony)

(3) death must be proximately caused (variatin based on id ofvictim and person causing death)

(4) felony must be malum in se

(5) Act must be a common law felony

(6) Period during which felony is in the process of commissionshall be narrowly construed

(7) Underlying felony must be independent of the homicide(a) Ireland rule in People v. Smith (case of child

abuse and homicide, reversed 2 degree felony-nd

murder conviction for direct assault that resulted indeath): Test: whether felony has a independentfelonious purpose (Smith)i) Felony murder rule inapplicable to felonies

that are an integral part of an act included infact within the homicide. (Wilson: commitburglary and kill a man before killing hiswife - his target)

ii) Most homicides include felony. If felonymurder admitted, preclude any defense tomurder, including provocation.

iii) Felony murder does not deter fromintentional assault homicide (not the goal).

iv) Felony murder not substitute to transferredintent (Sears: killed daughter instead ofwife)

6. Critics of felony murder: a. No need for imputation of malice if the death is forceable due to

the nature of the felony(1) Premeditation to use force

(a) i.e. use of weapon = implied intent to use it to harm

7. Model Penal Code §210.2(b): “rebutable” presumption of reckless murder

a. MPC: no gradingb. Reckless murder presumed if actor engaged in felony

8. Unlawful Act - Manslaughter Rulea. Requirement

(1) Malum in se offense (if not, no agreement)(2) Causation

(a) Some causation required to supportblameworthiness: i) threatii) violent offense: violent act that encompass

direct, foreseeable risk of physical harm thatwould support manslaughter.

F. Assisted Suicide as HomicideG. Suicide as homicide

1. Dying declaration: acceptable ifa. You are dying or told you areb. Make a statement accurately recordedc. You actually die

2. Murder suicide: Involuntary manslaughter (Atencio)a. Involuntary Manslaughter: Predicated upon wanton or reckless

conduct. Reckless or wanton: (1) intentional conduct(2) by way of action or omission where there is a duty to act(3) conduct involves high degree of likelihood that a

substantial harm will result.b. Issue of duty. Found that conduct of participants encouraging

other to play Russian roulette amounted to involuntarymanslaughter because risk not a factor of skill but factor of thenature of the game itself. Duty not to cooperate or join with himin the “game.”

3. Murder suicide: Murder & strict liability doctrine

a. Acts rendered the deceased “distracted” and mentally irresponsible.b. Physical and psychological traumac. Result of felonious attack (Stephenson: rape + pervert

mutilation)

4. Definition: Person by criminal acts can foreseeably make a personirresponsible: strict liability for resulting acts of the victim

5. Issue of causationa. Defense: try to break causation chainb. Standard:

(1) But for theory: act = foreseeable proximate cause(2) Once victim rendered mentally irresponsible, no more

defense. D liable to every actions(3) Even if number of other instrumentality contribute to death,

can be held responsible as if alone if(a) magnitude of act(b) so near result(c) fair to indict

c. MPC § 2.03(1) In case of strict liability: element not established unless

actual result is a probable consequence of the actor’sconduct.

6. Felony murder: a. transfer of intentb. Form of felony murder

IV. RAPE

A. Common Law rule: Basic concept1. Elements

a. General intent crime. Need only to prove: (1) Intercourse took place(2) W/o consent

(a) Forcibly(b) Against victime will

2. Mens rea = w/o consent a. Mens rea = intentionally engaging in intercourse w/o victime

consentb. General intent: do not have to prove that D knewor should have

known no consent. c. Prove lack of consent = resistance.

3. Test for lack of consent = Resistance = physical fighta. Test: resistance of the “pride female”

(1) resistance to the outmost(2) throughout all event(3) up until last breath

4. Issuea. Very low mens rea but very high standard for resistance. b. Resistance not realistic

B. Common law: Modern development

1. less resistancea. Resistance enough to create situation where no ambiguity as for

consent.

b. Coercion by force(1) Some state: no more resistance requirement: coercion

(a) “w or w/o resistance, coerce with use of force byexpressed or implied threat....

c. Broaden definition of force(1) Includes

(a) Restraint(b) imminent threat(c) physical pain

2. Mens rea: no more strict liabilitya. Balancing test:

(1) lessening resistance requirement = good for victim(2) Balancing test to protect accused = increased mens rea

requirementb. Specific intent

(1) New standard(a) have to know(b) Reckless or negligence

i) knowingly ran the riskii) should have known given circumstance

(reasonable person would have)(2) No “knowingly” = too high.

3. Defense

a. Mistake of fact(1) Negligence standard: Unreasonable mistake not acceptable

(calif)(2) Reckless standard: unreasonable mistake ok as long as D

believed in mistake

b. Absence of resistance(1) absence of resistnace should not be the result of reasonable

fear from victim (2) if fear unreasonable but D knowingly took advantage of

fear to accomplish intercourse, absence of resistance nota defense (Barnes, note 20)

(3) Absence of resistance may be submission # consent

4. Barnes Testa. Requirement of “reasonable resistance”b. When testimony suspect, need resistance per se

(1) Corroborative medical testimony of forced entry(2) Psychiatric evaluation of the victim

c. Elements(1) Bare assertion of uncommunicated resistance not enough (2) specific threat of physical harm to overcome will(3) explicit protestation or measurable resistance(4) Proof of protestation or passive resistance

d. Weakness of test: downplay “priaml terror” of violent reactionC. Marital rape

1. MPC + Common law: no rape between spouse2. Exceptions:

a. Consent revocable (based for divorce)(1) Proof: start divorce proceeding

b. Defense of violation of equal protection & no compelling stateinterest to oppose.

D. Rape and incapacity1. Statutory rape = strict liability

a. Age limit2. Mental disability

a. Defense:(1) mistake of fact:

(a) did not know(b) did not take advantage

b. Can be strict liability or reckless standard

E. Fraudulent obtention of consent1. False promise = no rape2. Fraud in the factum3. Fraud in the essence: not know the nature of the act: i.e rape under

pretense of “medical exploration”4. Pretending to be someone else

V. INSANITY DEFENSE

A. Policy issue

Criminal law is an expression of the moral sense of the community. Society has recognized that certain wrongdoers are improper for punishment. When truly irresponsible, who lack substantial capacity to control their actions,are punished, none of the three purposes of criminal law:

1. rehabilitation (none, make them more dangerous to society bc willrecidive),

2. deterrence (none, because not deterrable crime), and 3. retribution (not sadistic vengeance, not civilized)

– is satisfied (Freeman)

B. Model Penal Code §4.01 (Freeman Holding)

1. Not perfect, but best available2. Not an affirmative defense - burden on the plaintiff

3. Elements: a. A person is not responsible for criminal conduct if

(a) at the time of such conduct(b) as a result of mental disease or defect(c) he lacks substantial capacity(d) either to appreciate the wrongfulness of his conduct

or (e) to conform his conduct to the requirement of law.

b. The terms “mental disease or defect” do not include abnormalitymanifested only by repeated criminal or otherwise antisocialconduct.

C. Disfavored theories:

1. M’NAGTHEN (right/worng) test a. Not test of state of mindb. Control expert testimony (endorse a discarded concept)c. Bypass jury & direct verdict

2. IRRESISTIBLE IMPULSE testa. Supplement M’Naghten

b. Overly restrictive

3. DURAHM testa. Close to MPC but problem of causation (“product of mental

disease”)

VI. PREPARATORY CONDUCT, ATTEMPT, & CONSPIRACY

A. Common element: Grading, Mitigation, Multiple Convictions

1. Grading a. MPC §5.05:

(1) Attempt, solicitation, & conspiracy - same grade as mostserious offense.

(2) Exception: 2 degree when offense is 1 degree (or capitalnd st

crime).

2. Mitigation: unlikely outcomea. MPC §5.05

(1) if puropse so unlikely to result or culminate in commissionof crime + actor(s) & acts represent no public danger, courtamy(a) reduce to lower grade, or(b) dismiss the prosecution.

3. Multiple convictionsa. MPC §5.05

(1) only one conviction (attempt OR sollicitation ORconspiracy) for conduct designed to culminate incommission of the same crime.

B. Attempt

1. CL Definitiona. Definition

(1) Intent to commit a crime(2) Execution of overt act in furtherance of the intention(3) Failure to consummate the crime

b. Issue: when “consumption” start? In general, neither Intent, nor mere preparation = attemptBut some preparation may amount to attempt!?When attempt such point to justify intervention?

2. Preparation - Perpretation Quadmire (Latraverse)

a. CL attemts to locate dividing line between attempt andpreparation: (1) Act mut reach far enough towards the accomplishment of

the desired result to amount to the commencement of theconsummation.

(2) Act must come pretty near to accomplishing the result tobe criminal.

(3) Degree of prep + intent: preparation advanced to suchdegree that the intent to complete the act renders the crimeso probable that the act will be a misdemeanor.

(4) Project carried forward within dangerous proximity

b. MPC §5.01 (Latraverse holding)(1) Attempt: Criminal act without result

(a) Belief that no further conduct require to achieveresult (1 category attempt define in Staples). st

(2) Preparation: (a) Substantial step: strongly corroborative of the

actor’s criminal purpose.(b) Focus on overt acts that convincingly demonstrate a

firm purpose to commit a crime. (3) Key element of MPC test:

(a) Shift focus to what has been already done (enoughtto corroborate mens rea) to what’s left to be done tocomplete crime.

3. Attempt

COMMON LAW MPC §5.01

Elements(1) Intent to commit a crime(2) Execution of overt act in furtherance ofthe intention(3) Failure to consummate the crime

Elements

(1) Mens rea required for the commission ofcrime

(2) Actus reus:

a) Purposefully engage in the conduct wichwould constitute the crime

OR

b) causes result that is part of the crime or

believes that no further conduct required tocause such result

OR

c) purposely do what he thought was, under thecicumstances, a substantial step in a course ofconduct planned to culminate in commission ofsuch crime.

See below Test for Substantial Step:

Conduct strongly corroborative of the actor’scriminal purpose, such as:

(1) waiting, searching for, following target(2) trying to entice or entice target to move toplanned location for crime(3) breaking in to place (car, house..) wherecrime contemplated(4) possession of instrument, either unlawful orwithout lawful purpose under circ (Staples)(5) Soliciting agent to perform element of crime

Aiding: Same as committing crime itself

Defense of withdrawal: voluntary abandonment

NO POINT OF NO RETURN (# Staples / CL))Withdrawal can be done anytime.

Once overt act committed (no more inpreparation), need complete and voluntaryrenunciation.

Not voluntary if 1. Stopped due to unanticipated difficulties /probability to be caught. 2. Postpone final act or change target

Affirmative defense: defendant has the burden

of establishing by preponderance of theevidence...

4. CL test for attempt (Staples)

a. Categories of attempts

(1) 1 category: in Staples, Buffum test limited to firstst

category of attempt - when actor had done all required actsto commit offense but attempt unsuccessful due toextraneous element (miss his target, tools broke,...)

(2) 2 category: Staples attempt not completed, stopped duringnd

preparatory act. Issue: what level of actur reus required?

b. Common Law: Buffum Test (1 category of attempt)st

(1) Elements:(a) Preparation alone not enough to convict of an

attempt(b) Need

i) fragment of crime committedii) such progress that, unless interrupted by

circumstance beyond actor’s control, crimewill be committed

(2) Defense: Voluntary abandonment(a) Voluntary (b) not result of outside intervention

c. Statutes: Proximate act & Locus Poenitentiae (2 category ofnd

attempt)

(1) 2 doctrines

(a) Last proximate act: no need of the last proximateor ultimate act of substantive crime.

(b) Locus Poenitentiae - Point of non-retour

i) Staples Test: a) “relevant factors to determine

whether acts of perpetrator havereached such stage of advancementthat the can be classified as anattempt.

b) not one specific test (no such testachievable? Staples)i) Preparation = arranging the

means, attempt = directmovement.

2) Mens rea: Attempt start whenintent to commit thesubstantive offense is clearlyestablished Act not enough.

c) The stronger the mens rea, the leastactus reus required.

(c) Defensei) Once the line is crossed (even if attempt not

completed), no exculpatory abandonment. ii) Specific intent crime: defense of

intoxication decrease degree (burglary totrespass)

C. Conspiracy

1. Definitiona. Requirements:

(1) No real actus reus requirement(2) Actus reus = agreement(3) Mens rea = intention to follow up on agreement(4) Proof of Agreement?

2. Policya. More dangerous (5 reasons)

(1) threat of combination of multiple mind(2) mutual support(3) more likely to result in pattern of crime

3. Elements

COMMON LAW MPC §5.03

Elements ElementsPerson guilty of conspiracy to commit crime, if

1. Agreement between 2 triable person tocommit crime

2. One of co-conspirator has taken anaffirmative step (overt step) of furtherance inconspiracy

with the purpose of promoting or facilitating itsprommotion, he:

1. Agrees with other person(s) that one or morewill

a. commit the crimeb. attempt to commitc. solicit to commit

OR

2. Agree to aid in the planning or commissionor....

AND

3. Overt act: Requirement of an overt act doneby any co-conspirator(s) in pursuance ofconspiracy

a. not required for 1 & 2 degree felonyst nd

b. act may be legal (buy knife)

Difference with CL

1. Unilateral agreement between at least twopeople (capacity not required - MPC §5.04)

2. Overt act - but no collaborative act requiredfor 2 and 3 degree crimes.nd rd

Procedural Advantages

1. Each co-conspirator punished of all and everycrime committed by the group. 2. Conspiracy to do misdemeanor = felony3. Separate counts for consp. & crime4. Can retain statement of co-conspirator againstothers. 5. Fed. Rule: can charge in any Fed. Districtwhere an act was performed

Procedural Advantages

Restrictions

1. Bilateral agreement between 2 triable persons(no incapacity, enfant, not acquitted of thecrime..)

Defense of Withdrawal

1. Communicate2. To co-conspirator(s)3. Before any harm done (otherwise punishablefor harm done prior withdrawal)

Defense of Withdrawal

No communication but action requirementBurden of proof by preponderance of theevidence

1. Complete & Voluntarily2. Thward crime: take action demonstratingopposition to conspiracy

Defense of incapacity MPC§ 5.04

Punishment 1. For all foreseeable acts committed infurtherance of crime

2. Can cumulate count for Conspiracy w/ countfor the crime itself

Punishment

1. Punish the mens rea of individual2. Can not cumulate conspiracy + crime

Comment

Felony murder not required

4. Aiding & Abetting

a. Key point: (1) No need of physical action(2) No need for explicit agreement (implied)

b. Elements(1) Actus reus: mere presence + not stopping(2) Mens rea: Based on circumstantial evidence (Parker)

(a) friends, relationship(b) shared benefit(c) conduct such as fleeing together = shared

c. Punishment(1) All co-conspirators as principals

D. Solicitation MPC § 5.021. Definition:

a. With purpose of promoting or facilitating commission of crimeb. Commands, encourages, requests another person to engage in

specific conduct which would(1) constitute such crime or attempt, or(2) establish complicity

2. Communicationa. Solicitation does not have to be explicit

3. Defense of renunciation: a. Affirmative defenseb. Affirmative act to persuade person not to act or prevent the

commission of the crimec. Complete and voluntary

4. Defense of incapacity, irresponsibility, or immunity MPC §5.04

E. Defense of incapacity, irresponsibility, or immunity MPC §5.04

1. Defense for sollicitation or conspiracy

2. Valid defense if it is a defense against the crime

3. Otherwise, immaterial to the liability of a person:a. Does not accupy a particular positionb. has a particular characteristic which is an element of crime, orc. Other person(s) is irresponsible or has immunity to prosecution