Criminal
I.
Purposes
and Limits of Punishment
a.
Purpose
of punishing people is justice
b.
Retributivism
i.
Expression
of social disapproval
ii.
You
did wrong so you should suffer
c.
Utilitarianism
i.
Deterrence
1.
By
changing behavior of A you change behavior of B, C, and D
ii.
Rehabilitation
1.
Purpose
of prison
iii.
Incapacitation
II.
Elements
of the Criminal Offense
a.
Criminal
Act
i.
Need for an Actus Reas
1.
Proctor (p. 114)
a.
Property
possess is not enough to commit a crime – it was a means to a crime
b.
Cannot
prove intent to sell alcohol
c.
Must
have culpability
2.
MPC – 2.02(4)
a.
Contagion
rule
b.
Mental
element applies to all subsequent material elements if not stated otherwise
3.
MPC – 2.02(5)
a.
Recklessness
readiness rule
b.
If
no actus reas prescribed, recklessness is the default
4.
MUST
BE AN ACTUS REAS IN ORDER FOR SOMEONE TO BE LIABLE
ii.
Omissions
1.
Jones
case (p. 121) – child malnourished by family member – common law
a.
Can
only be responsible if omission constitutes a breach of legal duty
i.
Statute
imposes a duty
ii.
One
stands in certain status relationship to another
iii.
Contractual
duty
iv.
One
has voluntarily assumed the care of another and so secluded the helpless person
as to prevent others from rendering aid
b.
Can
be culpable by omission
2.
MPC – 2.01(3)
a.
Omission
is sufficient by the law defining the offense
b.
Duty
to perform is otherwise imposed by law
iii.
Requirement
of Voluntariness
1.
MPC – 2.01
a.
Only
culpable if act is voluntary
b.
Following
are nonvoluntary
i.
Reflex
or convulsion
ii.
Movement
during unconsciousness or sleep
iii.
Conduct
during hypnosis
iv.
Movement
not part of actor’s effort or determination
2.
Voluntariness
is separate from mens rea
3.
Newton
case (p. 125)
a.
Plane
landed in US when def had a gun
b.
NG
bc the plane was not to land in US and therefore not voluntary and
unforeseeable
iv.
Prohibition
of “Status” Crimes
1.
Robinson case (p. 136)
a.
Addict
within the state of CA
b.
Cannot
prosecute someone merely for the status of being an addict
2.
Johnson case (p. 143)
a.
Pregnant
woman transmitting drugs to fetus in the 30-90 seconds bt birth and umbilical
cord being cut
b.
Actually
trying to convict bc she is an addict
v.
Legality
1.
Keeler
(p. 154)
a.
MPC
defines murder as the killing of a human being
b.
In
this case, the victim was a fetus and the court determined that a fetus is not
a human
2.
Hypo:
what if the assault took place when a fetus but the child died after birth from
injuries sustained in the beating
vi.
Specificity
1.
Statutes
for criminal offenses must be specific enough to understand
2.
Morales (p. 162)
a.
Anti-gang
statute – too vague
b.
Cannot
determine what it means to disperse, when notice given, or who is a gang member
3.
Vague
statutes gives police too much discretion
b.
Guilty
Mind
i.
Requirement
of a Guilty Mind
1.
Must
have a proper mind requirement attached to each material element
2.
Only
exception if for strict liability – MPC does not allow this
3.
Balint
(p. 185)
a.
Guilty
of selling a narcotic even though he did not know it was a narcotic
b.
Ignorance is no excuse
c.
Three
element offense
i.
Possessing
ii.
Inhibited
drugs
iii.
Hallucinogenic
qualities
4.
Dotterweich (p. 189)
a.
President
of company convicted for selling unadulterated drugs
b.
Court
believes this can serve as a form of regulation
5.
Morrisette (p. 193)
a.
Def
took bomb shell casings from a field
b.
Not
dangerous enough and no purpose in convicting when there was no mental element
c.
Court
determined that punishment should rely on the following:
i.
If
regulatory crime
ii.
If
a misdemeanor
iii.
Does
it cry for restitution
ii.
Categories
of Culpability
1.
MPC – 2.02
a.
Purposely
b.
Knowingly
c.
Recklessly
d.
Negligently
2.
Faulkner (p. 202)
a.
Not
responsible for burning a ship bc did not have mental element
b.
His
only intent was to steal the rum, not cause harm to the ship
3.
Have
to have a minimum of recklessly according to the MPC
iii.
Mistake and Mens Rea Default Rules
1.
MPC – 2.04
a.
Applies
to mental element
b.
Exceptions
i.
Not
when def would be guilty of another offense
ii.
Applies
to mistake of law only when:
1.
law
not made known
2.
reliance
on official statement
c.
Def
must prove
2.
MPC – 2.02
a.
Buddy
system rule – all material elements must have mental element attached
b.
Contagion
rule – the mental element will apply to all subsequent material elements if not
stated otherwise
i.
Does
not apply if statute states otherwise
c.
Recklessness
readiness rule: minimum of recklessness if not otherwise stated
3.
Regina v. Prince (p. 223)
a.
Cannot
take a girl away from parents wo permission if under 16
b.
Court
holds strict liability – if mistaken about age, does so at own peril
4.
People v. Ryan (p. 230)
a.
Must
knowingly possess over 625mg of hallucinogen
b.
Prosecutor
did not show that def knew specific part of drug over that amount
5.
Guest
case (p. 237)
a.
Def
made a mistake pertaining to girl’s age
b.
Court
ruled this was a mental error and capable of a defense
c.
Goes
against Prince
iv.
Mistake of Law
1.
Mistake
of Law and Mens Rea
a.
General rule: mistake of law is no excuse
b.
MPC
allows exceptions – 2.04
i.
Rely
on statement by official
ii.
Law
not made known to the public
iii.
These
defenses must be proven by the def
c.
People v. Bray (p. 248)
i.
Was
convicted in another state as an accessory and was not sure if considered a
felon
ii.
Allowed
to do things felons were not typically allowed to do (for example, vote) so got
a gun
iii.
Accused
of a possessing a firearm as a felon
iv.
Mistake
of law bc did not know he was a felon – has to show the following:
1.
He
did not know
2.
His
belief was reasonable
2.
Mistake
of Law as an Excuse
a.
Twitchell case (p. 269)
i.
Parents
were Christian Scientists and child died from not taking to doctor
ii.
No
excuse – involuntary manslaughter
iii.
Reversed
– relied on an official statement
III.
Homicide Offenses
a.
Overview
i.
Defined
by statutes on a state by state basis
ii.
Malice
aforethought for murder
1.
Purpose
to cause death
2.
intent
to inflict serious bodily harm
3.
extreme
recklessness w respect to a serious risk of harm to another’s life
4.
a
willingness to undertake even a very small risk of death where the risky
conduct is so unworthy as to establish guilt of a serious felony (felony murder
rule)
iii.
manslaughter differs from murder
1.
killing
is committed with recklessness or negligence
2.
in
the heat of passion and the passion has adequate justification
b.
Intentional Homicide
i.
Premeditated
Murder (First-Degree)
1.
Differentiation
bt 1st and 2nd degree is premeditation needed for 1st
2.
Watson
case (p. 369)
a.
Stole
a car, ran from police, killed officer after several seconds of hesitation
b.
Jury
believed premeditated – there is enough time to decide what he was doing
3.
Mercy killing – old woman kills husband who was ill – voluntary manslaughter
a.
Differs
from Watson
b.
Shows
how different jurisdictions treat differently
4.
Requires
both premeditation and deliberation
5.
MPC
– 210.2
a.
Committed
purposely or knowingly
b.
Committed
recklessly under circumstances manifesting extreme indifference to the value of
human life
i.
Engaged
in committing or attempting robbery, rape, arson, burglary, kidnapping, or
felonious escape
ii.
Voluntary Manslaughter
1.
MPC
– 210.3
a.
Committed
recklessly OR
b.
Committed
under the influence of extreme mental or emotional disturbance for which there
is reasonable explanation or excuse
c.
Take
from the viewpoint of the def with exceptions
i.
Do
not take into consideration idiosyncratic moral values
2.
Theory
of Mitigation
a.
Walker
case (p. 380)
i.
Victim
approached with a knife and def killed him
ii.
Considered
in the heat of passion bc he was provoked
b.
In
addition to heat of passion, must have adequate provocation
i.
Adequate
provocation determined by the reasonable person
1.
What
is a reasonable person????
ii.
Words
are not adequate under traditional view
3.
Common
Law and Its Categories and Rules
a.
Adultery and Other “Adequate Provocations”
i.
Rowland (p. 386)
1.
killed
wife when caught in adulterous act
2.
adultery
deemed adequate provocation
ii.
Must
witness adultery
b.
Cooling Time
i.
Ex Parte Fraley (p. 397)
1.
killed
man who allegedly killed son
2.
occurred
several months after son’s killing
3.
court
determined adequate cooling time
ii.
purpose
is that we wish to punish those who kill in cold blood more harshly than hot
blood
iii.
If
in fear then adequate provocation and no cooling time bc fear is continuous
4.
Provocation under Reform Rules
a.
Berry
case (p. 402)
i.
Continually
tormented by wife’s other love
ii.
Killed
after several weeks of this torment
iii.
Cooling
time not adequate bc it was a continual problem with his wife
c.
Unintentional
Homicide
i.
Involuntary
Manslaughter
1.
Negligent and Reckless Homicide
a.
Welansky (p. 429)
i.
Blocked
emergency doors in a night club
ii.
Recklessly
is used differently here
iii.
Def
disregarded the problems with blocking the doors
b.
MPC
– 210.4
i.
Negligent
homicide when committed negligently
ii.
Third
degree felony
2.
Involuntary Manslaughter in Contemporary Settings
a.
Williams (p. 438)
i.
Parents
would not take child to doctor bc Native Americans and were scared child would
be taken away
ii.
Courts
will not take ignorance into consideration
iii.
Does
not take cultural considerations into account
b.
Must
be a causing fact that the law targets
c.
Results
must be somewhat foreseeable
ii.
Reckless Murder
1.
Mays v. People (p. 450)
a.
Def
threw bottle at wife and she burned to death after lantern caught fire
b.
Abandoning
of a malignant heart
c.
Voluntary
alcoholism is not an excuse
i.
MPC
– 2.08
1.
intoxication
does not constitute mental disease
2.
voluntary
intoxication not a defense
d.
Does
not require prosecution to prove intent to kill or even seriously injure –
could find guilty if acted with an abandoning of a malignant heart
2.
Vehicular homicide
a.
Many
states have adopted special rules for this
b.
Porter v. State (p. 448)
i.
Insufficient
evidence of gross negligence
ii.
Court
took into account unfamiliarity of area
3.
MPC
distinguishes recklessness (manslaughter) and extreme recklessness (murder)
iii.
Homicide
in the Course of Another Crime
1.
First-Degree Felony Murder
a.
People v. Stamp (p. 463)
i.
Def
robbed a business and the manager had a heart attack after the def left
ii.
Guilty
of felony murder bc death resulted from the felony – extreme stress on heart
caused death
iii.
Causation
present
b.
No
felony murder rule under the MPC
i.
May
be guilty of negligent homicide
2.
Two
Variants of Felony Murder
a.
Misdemeanor manslaughter
i.
Most
states have abolished but a few still follow this
ii.
If
death occurs in the commission of a felony then manslaughter
b.
Sentencing enhancement
i.
When
death occurs during a felony, then sentence is enhanced for the felony
committed
ii.
No
addition crime, just the felony
3.
Limits
on the Felony Murder Rule
a.
Stamp
(p. 463) establishes baseline formula
i.
Wo
this rule, killing may only be negligent or reckless manslaughter
ii.
Conduct
causing the killing may have ended prior to killing
iii.
Penalty
for first degree felony murder will exceed the sum of the punishments for the
felony and the homicide separately
b.
Limiting
Predicate Felonies
i.
Many
states have enumerated certain felonies in which the rule can be implicated
c.
Foreseeability and Proximate Cause
i.
Some
states use foreseeability as an introduction of proximate cause
1.
addresses
the risks to human life foreseeably taken by the felons
2.
has
legislature considered
3.
when
does the felony end
4.
what
does it mean for the killing to be done in furtherance of the felony
5.
what
does it mean to commit a killing
6.
Who
qualifies as a murder victim
4.
Merger of the Homicide and the Predicate Crime
a.
Felony
and killing must be distinctly different crimes
i.
If
the felony is manslaughter, cannot use to enhance to murder under the rule
b.
This
is one way that courts have shortened the reach of the rule
c.
People v. Moran (p. 501)
i.
Def
shot the cops when stopped
ii.
The
felony was the murder – he was not trying to escape so the crimes were not
distinct
IV.
Justification
and Excuse
a.
Defensive
Force, Necessity and Duress
i.
Defensive Force
1.
Elements and Rationales
a.
People v. LaVoie (p. 576)
i.
Def
car was being pushed and he pulled over, felt threatened, shot those who were
harassing him
b.
Self Defense
i.
MPC
– 3.04
1.
actual
belief
2.
belief
is reasonable
3.
force
is immediately necessary
4.
danger
of being killed, receiving serious bodily injury, kidnapping, or rape
ii.
common law
1.
actual
belief
2.
belief
is reasonable
3.
harm
is immanent
4.
danger
of being killed or receiving great bodily harm
iii.
Exceptions
1.
prisoners
have no right to self defense
2.
cannot
be the aggressor
3.
duty
to retreat
a.
exceptions
i.
in
home
ii.
at
place of work unless aggressor is known to be at work
b.
only
when able to retreat safely
c.
Can
defend others – some states require that belief is correct and not just
reasonable
i.
Weaker
defense
d.
If
belief is unreasonable – then cannot assert defense
i.
Under
MPC, may be manslaughter if reckless, or negligent homicide
e.
Self
defense must be in relation to force used
i.
Cannot
use excessive force
ii.
Fists
may be deadly if pro boxer
2.
Defensive
Force and the Battered Spouse
a.
Battered
spouse cannot be used as a defense but may be entered into evidence to show
state of mind
b.
Some
courts will not allow this evidence in cases where spouse is sleeping
c.
Leidholm (p. 581)
i.
Battered
spouse
ii.
Killed
husband in his sleep
d.
Some
states extend this defense to battered children
e.
Courts
very reluctant to use as a cultural defense
i.
Cultures
of homeland will not be taken into consideration
ii.
Nature
of upbringing will not be taken into consideration
3.
Reprise
on the Reasonable Self-Defender
a.
Goetz
(p. 610)
i.
Shot
four boys who were harassing him
ii.
Tried
to assert a subjective standard
iii.
Court
ruled that an objective standard should be used but can take circumstances into
consideration
b.
If
person is extremely hostile, will not be considered reasonable
c.
Cannot
use excessive force
4.
Aggressor Exception
a.
If
person is the aggressor, cannot claim self defense
b.
If
you hit a person and they pull out a gun, you then get self defense back bc
their force is excessive and they then become the aggressor
5.
Defensive
Force and Law Enforcement
a.
Defense
of property
i.
Ceballos (p. 631)
1.
Set
a trap gun in garage which shot a 15 yo when he entered
2.
Court
determined that a string gun could not be set bc not a dwelling
3.
Cannot
use excessive force and can not know if force is excessive if not home
ii.
Colorado
statute
1.
make my day law
2.
can
use deadly force if reasonable belief by occupant
iii.
Differences in states
1.
if
def reasonably believes intent to inflict a felony or bodily harm
2.
reasonable
belief that an attempt at a felony only
3.
limit
the defense to certain felonies
iv.
general rule is that in defense of property – cannot use deadly force bc life is
worth more than property
v.
MPC
1.
requires
exposure to a felony and exposure to serious bodily harm
b.
Crime prevention
i.
Not
limited to own property or own home
ii.
Common
law – deadly force could be used to stop a felony
iii.
Modern
rule – deadly force only used to stop certain felonies that are seriously
dangerous
1.
MPC
– 3.075
ii.
Choice
of Evils - necessity
1.
Moral
Issue
a.
MPC
– 3.02
i.
Elements
1.
actor
believes necessary to avoid a harm or evil to himself or another
2.
harm
or evil is avoided is greater than that sought to be prevented
3.
no
law provides exceptions or defenses
4.
legislative
purpose to exclude justification does not otherwise appear
ii.
Exceptions
1.
actor
was reckless or negligent in bringing about the situation
2.
actor
was reckless or negligent in appraising the necessity
3.
justification
is unavailable for an offense in which recklessness or negligence suffices to
establish culpability
b.
Dudley & Stevens (p. 637)
i.
Lord
Hale: a person cannot attack an innocent in order to save own life
ii.
US
v. Holmes: appropriate to select by vote
iii.
Kant
would say ok to eat someone if you would not mind being eaten
iv.
Bentham
would say that three are saved and only one sacrificed
c.
Cannibas case (handout)
i.
No
medical necessity defense allowed in cases of class I drugs
ii.
Part
of the necessity defense is necessity
V.
Mental Illness as a Defense
a.
The
M’Naghten rule and cognition
i.
Serravo (p. 689)
1.
Believed
God wanted him to stab wife to severe the marriage
2.
Covered
up the crime bc he believed the police would not understand
3.
Court
applied M’Naghten rule
a.
Societal
standard of morals
b.
Court
blends deific decree into their rationale
4.
question
of what the def action actually consisted of
a.
action
stabbing the wife
b.
action
obeying God
c.
action
stabbing wife bc he was obeying God
d.
results
in differences in societal moral norms
i.
immoral
to stab wife
ii.
not
immoral to obey God
ii.
M’Naghten rule
1.
person
gets off if the person does not know what they do is wrongful
2.
test
a.
defect
of reason OR
b.
not
know nature and quality of the act
3.
considered
as having complete or total ignorance
4.
later
some jurisdictions added irresistible impulse
b.
Cognition
and Volition: The Road from M’Naghten and Back
i.
ALI rule (American Law Institute)
1.
mental
disease OR defect
2.
lacks
substantial capacity to conform to requirements of the law – cannot appreciate
a.
this
is similar to irresistible impulse
b.
some
jurisdictions say this impulse must be strong enough to commit act with
policeman at your elbow
ii.
Post
Hinkley – federal law
1.
tightens
ALI rule
2.
notion
that def is unable to appreciate wrongfulness of act due to a severe mental
disease or defect
iii.
Durham test
1.
get
off if your act was the product of a mental disease or defect
2.
too
broad and indeterminate
3.
too
solicitous of experts
iv.
key
thing of all tests
1.
all
have the step of wrongfulness
2.
particular
state of mind
3.
lack
of knowledge or wrongfulness of the act
v.
Important
points in insanity defense
1.
important
to distinguish bt insanity as a defense and lack of competency to face trial
2.
in
most states, def must prove insanity by preponderance of the evidence – in some
states, prosecution must prove sanity beyond a reasonable doubt
3.
important
to remember the NG by reason of insanity does not get the def off – most states
require confinement and put burden of proof on the def to sanity to get out of
the confinement
c.
Quasi-Insanity
Defenses
i.
Alcohol and other drugs
1.
voluntary
alcohol or drug use, and even the log term effects, will not ordinarily
exculpate the def
2.
State v. Maik (p. 735)
a.
Def
kills roommate after history of LSD use
b.
Can
enter insanity defense bc he was not under the influence at the time of the
killing and therefore can enter into evidence
c.
Distinguish
from Decina (epileptic driver who was found guilty) bc it is one thing to be
intoxicated in a generalized way but another to be out of control when using an
auto
3.
courts
will generally allow a defense if alcohol induced a permanent mental illness
after the use
4.
if
alcohol or drug use was involuntary – can assert a defense
5.
Hendershott (p. 273)
a.
Court
distinguished bt extreme drunkenness and insanity
b.
Juries
look poorly on choosing to be drunk – cannot escape recklessness for being
drunk
d.
Diminished Capacity
i.
This
is NOT a defense
ii.
Can
be presented into evidence
iii.
Will
get off if autistic but not if epileptic
iv.
Can
assert this instead of insanity
1.
is
not a defense but entered into evidence
2.
can
reduce culpability or get off
v.
Pohlot
case (p. 745)
1.
arranged
for wife’s murder after she filed divorce
2.
allowed
to enter evidence of diminished capacity bc he had a mental problem
vi.
this
evidence may allow disproving the necessary mens rea
vii.
Guilty
but mentally ill is a middle ground bt insanity and diminished capacity – but
must be found guilty whereas the others may allow for NG verdicts
VI.
Attempt
a.
Punishment
i.
Why
punish attempt
1.
Utilitarian
argument is although attempt actions are harmless, proves person is dangerous
2.
Attempt
implies intent to do harm
b.
Mens Rea
i.
Same
mens rea is needed for attempt as is needed for the crime
ii.
Lyerla
(p. 756)
1.
Logical
impossibility to have attempted reckless homicide
2.
Cannot
say that someone acted intentionally and recklessly
iii.
Result
element has to be present (such as a killing for homicide)
iv.
MPC 5.01
1.
Purposely
engage in conduct constituting the crime; OR
2.
Causing
a result that is an element of the crime, without further conduct (this is for
an action crime – an act is committed); OR
3.
Substantial
step
c.
Actus Reus
i.
Preparation
v. Attempt
1.
MPC requires
a substantial step (p. 768) – more prosecutor friendly
2.
Have
to go beyond preparation
3.
Other
tests (p. 767)
a.
Physical proximity: act must be proximate to the completed crime
b.
Dangerous proximity: the nearer the crime, the stronger the attempt
c.
Indispensable element: emphasizes any indispensable aspect of the criminal
endeavor over which the actor has not yet acquired control
d.
Probable desistance: attempt if without interruption from an outside
source, the crime would result
e.
Abnormal step: step toward the crime that goes beyond what a normal citizen would do
f.
Unequivocality: actor’s conduct manifests an intent to commit a crime
4.
For
attempt, must have BOTH an act and a mental element
ii.
Abandonment
1.
MPC
a.
Must abandon completely and voluntarily
2.
Staples (p. 780)
a.
If someone knows they will be caught and stop then considered
interrupted and still attempt
b.
Once knowledge of attempt, then cannot abandon
3.
In
most circumstances, the law does not allow people off for abandonment
d.
Impossibility
i.
Legal impossibility: act is not illegal so impossible to have an attempt – example: lying
about age under oath; lie has to be material to be a crime – gets off
ii.
Factual impossibility: will not get off – the facts of the case make crime
impossible but still considered attempt bc had a mental element and an act –
example: shooting a block of wood thinking it was your enemy and wanted to kill
him – even though impossible to kill a piece of wood, still attempt
iii.
Booth
1.
Lawyer
who received a “stolen” coat
2.
Not
guilty because coat was not stolen once the police apprehended the thief –
legal impossibility
iv.
Rational Motivation Test (p. 803)
1.
Mistaken
beliefs are relevant to what the actor is trying to do if they affect his
incentive in acting
2.
They
affect his incentive if knowing of the mistake would give him a good reason for
changing his course of conduct
VII.
Complicity
a.
Accessorial Act
i.
Accomplices
are persons held liable for aiding or encouraging the offense of another – act
is necessary (no accessory if no crime)
ii.
Liability
for wrongdoing flows from the accomplice’s relationship to the perpetrator
iii.
Ochoa
(p. 823)
1.
Must
share in the intent of the crime
a.
Cannot
be supported by mere suspicion
b.
Defendant
continuing to participate in the riot indicated intent
2.
Do
not need to know, just aid
iv.
Common law
1.
Principals:
1st is the one who commits the act; 2nd is the one who
was present and participated
2.
Accessory
before the fact: encouraged, counseled, aided beforehand
3.
Accessory
after the fact: help in escape
4.
Accessory
could not be convicted before the 1st principle
5.
Had
to be convicted as charged and not for something else
v.
USC
1.
Accessory
is considered the principle
2.
Anyone
willfully causing is principal
3.
MPC 2.06
vi.
Generally
1.
Most
states allow a lesser punishment for accessory after the fact
a.
Accessory
after the fact called misprison of felony
b.
Most
courts only apply to affirmative conduct
c.
USC
still makes this a charge
2.
Principal
does not need to be arrested, charged, or even caught in order for accessory to
be charged and convicted
b.
Mens Rea
i.
Approaches
1.
Purpose even if crime does not require it
2.
Knowledge
or purpose of one’s actions will have effect on principal
3.
Three
Factors
a.
The
conduct, attendant circumstance, and result elements of the principal’s offense
b.
The
likelihood that the accomplice’s actions will encourage or assist the principal
in committing her offense
c.
The
principal’s culpable mental state
4.
Most
standards combine two of the three elements
5.
Accomplice
guilty if and only if accomplice has same mens rea as commission of substantive
element charged
ii.
Abandoning
1.
MPC 2.06 (p. 850)
iii.
Principal’s
Mental State and the Facilitative Effect of the Accomplice’s Conduct
1.
Beeman
(p. 851)
a.
Must
have knowledge OR advises and encourages
i.
Cannot
assume knowledge – must be proven through actions
b.
Must
have criminal intent
c.
Must
share in the perpetrator’s purpose of crime
i.
Does
not have share in “fruits of labor” just encourage with knowledge
2.
Ostrich Rule: purposely avoids gaining knowledge bc of the unpleasantness (p. 857)
3.
Facilitation: in NY
a.
Provides
a means or opportunity for a crime he believed probable
b.
This
is a lesser offense – middle ground bt complicity and getting off
iv.
Principal’s
Mental and Culpability Required for the Offense
1.
Wilson
(p. 861)
a.
Defendant
wanted the crime to happen in order the criminal be caught
b.
If
intent is to entrap, then no attempt
i.
Intent
is to catch criminal, not commit a crime
c.
Relations
to Parties (p. 877)
i.
Perpetrator Excused
1.
Accomplice
guilty even if principal has an excuse
2.
Common
Law: Principal and accomplice convicted of same crime
3.
Modern
Law: can be convicted of different crimes and person who committed crime does
not have to be convicted at all
4.
If
the accomplice purposely exploits an excusing perpetrator, then accomplice is
the principal and not the perpetrator
ii.
Perpetrator Justified
1.
Accomplice
is still guilty
iii.
Perpetrator Lacks Mens Rea
1.
Hayes:
cannot have accomplice wo a principal
2.
Muni:
perpetrator by means – will impute liability to one for actions of another
3.
MPC:
guilty if causes an innocent or irresponsible person to act
iv.
Discrepant Mens Rea
1.
Modern
trend is to allow conviction of accomplice on a higher level than the principal
– base conviction on the different mens rea needed
v.
Principal has not committed or could not commit the Criminal Act
1.
General
rule is that if there is no criminal act by the principal, then no accomplice,
and therefore no attempted complicity
2.
Exceptions
a.
Parental
custody: someone who commits a crime for a parent can be convicted
b.
Perjury:
convicted even though did not know he was lying and the principal was acquitted
(Sadacca)
vi.
Accomplice could not commit the criminal act
1.
Can
still have a principal even if the accomplice is incapable of crime
vii.
Straw Man
VIII.
Conspiracy
a.
The nature of the conspiracy
i.
Elements
1.
Agreement
to do the crime
2.
Intent
to do the crime
3.
Act
(overt)
4.
DO
NOT have to have crime committed – this is a big difference from complicity
ii.
Versus
Attempt
1.
Attempt
requires an act beyond preparing and conspiracy does not
2.
Attempt
does not require an agreement but conspiracy does – attempt can be committed by
self whereas conspiracy requires more than one person
iii.
Verive
(p. 894)
1.
Trying
to convict of conspiracy and also attempt to dissuade
2.
Not
double jeopardy as long as one element is different or needed in one or
not the other crime
3.
Blockburger Test (p. 896)
a.
Where
the same act or transaction constitutes a violation of 2 distinct statutes, the
test is whether each requires proof of additional fact the other does not
require
iv.
Burleson (p. 897)
1.
Court
decided that conspiracy is a lesser degree of attempt
2.
Cannot
be convicted of both attempt and conspiracy
v.
MPC:
cannot prosecute for attempt to conspire
1.
Usually
an act is required, but may not be for more serious crimes
vi.
Sometimes
can be conspiracy wo complicity, but it is rare
b.
Agreement
(p. 907)
i.
Tacit agreements: implied agreements can be used for conspiracy
ii.
Rahman
(p. 909)
1.
Have
to consider the 1st Amendment in addition to double jeopardy
2.
Speech
can be criminal regardless of the 1st Amendment
iii.
Withdrawal
1.
Read
(p.913)
a.
Elements
i.
Notify
co-conspirator of withdrawal; OR
ii.
Enage
in acts inconsistent with objective
iii.
No
requirement to persuade others to withdrawal or to inform authorities
b.
Not
a complete defense unless coupled with statute of limitations (which starts at
time of withdrawal)
2.
MPC 5.03: requires person to thwart other conspirators in addition to
voluntarily withdrawing
c.
Mens Rea
i.
Lauria
1.
Court
says that must be intent to further the crime – something more than knowledge
a.
So
need knowledge and something else
2.
Defendant
knew some clients of his answering service were prostitutes
3.
Intent
can be proved two ways
a.
Direct evidence
b.
Evidence of circumstances allow inference
i.
Defendant
has stake in venture
ii.
No
legitimate use of goods or services (such as a coat with many pockets for
pickpocketing – but this could be used for a magician)
iii.
Volume
is higher than normal (selling extreme quantities of a drug)
4.
The
more dangerous the crime the more likely to find conspiracy (such as in drug
sales)
5.
Knowledge
alone (wo intent can be sufficient in some cases)
a.
Just
knowing and selling the product can be enough
ii.
MPC 5.03 (p. 924)
d.
Special
Mens Rea Problems
i.
Mistake of law
1.
Corrupt Motive
a.
Mistake of law used to be used as a defense
b.
Modern trend is not to allow this defense
ii.
MPC
rejects corrupt motive doctrine
e.
Incidents
of conspiracy (p. 930)
i.
Pinkerton rule
1.
All
co-conspirators are liable for the substantive offenses committed by one of the
conspirators if done in furtherance of the conspiracy
2.
Alvarez
a.
Officer
shot in the commission of a drug deal
b.
Under
Pinkerton rule, the conspirators were also guilty of murder bc it was
foreseeable in furtherance of the crime
3.
Two
categories (footnote on p. 931)
a.
Most
common – the substantive crime that is the subject of the Pinkerton charge is
also one of the primary goals of the alleged conspiracy
b.
The
substantive crime is not a primary goal of the alleged conspiracy, but directly
facilitates the achievement of one of the primary goals (examples: murder
during a prison escape, possession of a firearm in a drug deal)
f.
Parties
to and Object of Conspiracy
i.
Bilateral
and unilateral (p. 942)
1.
Even
if all but one person is acquitted of conspiracy, that one can still be
convicted
2.
Common
law view is bilateral: both people must have agreed with same intent
3.
MPC
takes a unilateral view (5.03)
a.
Even
if second person does not intend on fulfilling the obligations, the first is
still guilty
ii.
Wharton Rule
1.
When,
to the idea of an offense, plurality of agents is logically necessary,
conspiracy, which assumes the voluntary accession of a person to a crime of
such a nature that is aggravated by a plurality of agents, cannot be maintained
2.
Two
parties of a crime cannot both be convicted of the substantive crime and conspiracy
3.
Iannelli
a.
Rejected
the argument that the Wharton rule applies to this case
b.
This
case involved a gambling ring
iii.
Spouses
1.
Common
law: a husband and wife could not be conspirators with each other – considered
one person
2.
Dege
(p. 947)
a.
Court
rejected the common law rule based on the advancements of women and refused to
consider spouses as one person
IX.
Theft
Offenses
a.
Theft
i.
Meaning
of Theft
1.
Mitchneck (p. 1017)
a.
In
order to have fraudulent possession, has to (1) receive money or property
belonging to someone else, and (2) use it for own or another’s benefit
b.
In
this case, not fraudulent possession bc not the employee’s money
2.
MPC
223
ii.
Development
of Theft Offenses
1.
Modern
statutes and MPC look to day/night, weapon/no weapon, more/less serious, etc.
to determine extent
2.
Larceny (p. 1019)
a.
Common
Law
elements
i.
Trespassory
taking and carrying away (asportation) of property
ii.
From
the possession of another
iii.
With
the intent to permanently deprive the owner of that property
iv.
Additional
notes about common law
1.
Requires
a temporal concurrence of act and intent for criminal liability
2.
Requiring
goods be taken from the possession implied that once a thief acquired
possession, he could forcibly defend the goods with the intent to retain them
wo being guilty of larceny
3.
Trespassory taking is taking wo
the owner’s permission – but failing to give something to another to which
another is entitled is not trespassory
4.
Impossible
to steal services
b.
MPC
i.
Rejects
notion that it is impossible to steal services
ii.
Possible
to have larceny in dealing with partnership bt partners
c.
Mental
element:
must have intent to permanently deprive the person entitled to possession
d.
Property: What is considered
property
i.
Must
be in possession of it (cannot just be sitting on a table)
ii.
Crops
in the ground are not property, but once harvested they are property
iii.
MPC
Distinguishes bt household goods that are available to both spouses (no
larceny) and goods that belong to one of the people, such as a necklace
(larceny)
e.
Attempt
to reimburse is irrelevant
i.
Example:
steals car with $100 on front seat – uses money to go to race track with intent
to pay back – guilty of larceny bc did not intend to return the same $100 he
took
f.
Employees
i.
This
is a tricky situation bc employees are already in possession of employers
property
1.
Common
law states that employer is in constructive possession of the property –
employee only has custody of the property – when employee steals, he
moves from custody to possession and that is a trespassory taking
ii.
Limitation: if a 3rd party
gives the employee custody, cannot gain possession bc employer never gave
possession
iii.
Exception:
if employee puts money
in a drawer and then later that day takes it, then larceny bc employer believed
to still have constructive possession – if employee put money in drawer with
intent of taking it, then no larceny bc no constructive possession
g.
Bailee:
someone entrusted with
another’s property
i.
Breaking
of the bulk rule
1.
Bailee
guilty of larceny when he breaks open contents and then steals
2.
When
the bulk is broken, the bailment terminates – constructive possession by the
bailor
h.
Trick
i.
Pair
1.
Defendant
rents a horse and intends to sell it – guilty of larceny by trick when horse is
sold
2.
Even
though horse came into defendant’s hands properly, still constructive
possession of the leasor
ii.
If
the leasee gets the property innocently and then later decides to sell horse,
not larceny (maybe embezzlement)
3.
Embezzlement (p. 1027)
a.
Involves
the conversion of property of another by one who has lawful possession
b.
Some
statutes limit this offense to certain types of people, employees, agents,
fiduciaries, and lawyers
i.
Under
these statutes, if someone finds money and intends to return it but later
changes mind and rips it off then not larceny bc did not take the property, and
not embezzlement if not one of the people statute refers to
c.
Often
divided into different grades depending on the dollar amount of the property
d.
Developed
from the case of Bazeley where an employee was taking bank deposits from
an account
4.
False
Pretense
a.
Obtaining
title to property by making a false representation of a presently existing fact
of pecuniary significance which is intended and does defraud the victim of the
property
b.
The
part referring to the title differentiates obtaining property by false
pretenses from larceny by trick
c.
The
crime is complete upon the initial obtaining of property
d.
False
representation must be make knowingly or recklessly
i.
If A
makes a bet with B that the Packers will beat the Falcons – A tells B that the
Packers had won (she thought they did) and B pays – did not knowingly lie but
still guilty bc reckless
ii.
Has
to be based on existing fact – will not do if made on a false promise (example:
not false pretense if telling someone will pay later for a Favre helmet)
e.
Most
jurisdictions reject MPC
f.
False
statement must be material (if buying goods and salesman says he is a hotshot
bc he knows coach Richt, then not material bc it has nothing to do with the
goods being bought)
g.
Must
cause a false transfer to the victim (If car salesman says a car has 10k miles
but the buyer knows it has 40k miles, not false pretense bc buyer knew salesman
was wrong – but may be attempt)
5.
MPC
lumps together larceny, embezzlement, and false pretenses (223.1)
b.
Robbery
and Burglary
i.
Robbery: larceny by a person by
force or immediate threat of force – does not have to be directed at property
owner, can be directed at 3rd person
1.
MPC
222.1
a.
Felony
regardless of amount taken
2.
Narrow
view: force view only while taking the property
3.
Broad
view: force can be while taking or while fleeing
4.
Pickpocketing
does not require force so would be larceny – but if resistance is met, then
might use force and result in robbery
5.
Treated
more seriously than the threat crimes above
ii.
Extortion: two different approaches
1.
Sometimes
for guilt you actually have to obtain the property
2.
Other
times, enough just to make the extorted threat
3.
Threat
does not have to be of immediate bodily harm – this distinguishes extortion
from robbery
4.
Threats
do not have to be of a physical nature – can be of something like disclosing
confidential information
5.
May
or may not be treated seriously
iii.
Burglary
1.
MPC
221.1
a.
Elements
i.
Nature
of entry – non public, not licensed or privileged to enter (this is a middle
ground bt common law requirement of breaking and entering and the elimination
of the requirement)
ii.
Place
of entry – building or occupied structure (occupied is separate from presence)
iii.
Objective/purpose
of entry – purpose to commit crime (only violations are excluded from this)
iv.
Factors
with entry that aggravate degree
X.
Rape
a.
Introduction
i.
Defining
rape
1.
Elements
(traditional/standard
law)
a.
Force
i.
Physical
force expressed or implied; OR
ii.
Serious
threat (death, serious injury, kidnapping, harm to relatives)
b.
Resistance
c.
Non-consent
d.
Act
(penetration)
2.
Elements
are all related to one another
a.
The
more force, the more likely there is not consent
b.
Resistance
is also closely related to force and non-consent
3.
Modern
reform does not require resistance bc it puts the victim on trial
4.
MPC
213.1 (p.
1103) – must compel a person to submit (type of non-consent required) – also
cannot have rape of spouse
b.
Requirement
of utmost resistance: resistance up to the point of risking death or
serious injury from the perpetrator
c.
Reasonable
or earnest resistance
i.
Dorsey (p. 1087)
1.
Woman
raped in elevator
2.
Non-resistance
can be considered resistance
3.
Looked
at what a reasonable woman would have done in her situation
4.
Can
be distinguished from Dorsey (p. 1091) in that she had no means of
escape
d.
Forcible
compulsion
i.
Barnes (p. 1095)
1.
Resistance
can show force, but can still be force even if no resistance (resistance not
indicative)
2.
She
was threatened and somewhat trapped (could be argued at least)
e.
Non-consent
i.
Smith
(p. 1109)
1.
Victim
and perpetrator met in a bar – victim went back to perpetrator’s house with the
notion that her friend was meeting her
2.
Consent
based on outward manifestations
f.
Incapacity to consent (p. 1124)
i.
Alcohol
1.
If
drank voluntarily, then not rape
2.
If
drank involuntarily by perpetrator or third person, then rape present
ii.
Mental
Incapacity
1.
Gross
sexual imposition when sex with person with known mental defect or disease
g.
Rape
by Fraud (p. 1127)
i.
Boro
1.
Victim
called by “doctor” and given a choice to undergo an expensive surgery or have
sex with a “donor”
2.
Victim
consented to have sex but was unaware of the real purpose (pleasure v. medical
necessity)
3.
Mistake
of facts does not constitute consent
a.
Minkowski
i.
Patients
being treated by doctor
ii.
Turned
with back to doctor – thought he was using a medical device when in fact using
his penis
b.
If
the mistake is in inducement, then no rape (as in this case)
4.
Here
the defendant is let off bc she did consent to the sex – conscious of having
sex
h.
Rape
by Extortion
i.
Thompson (p. 1137)
1.
Student
told to have sex or would not graduate
2.
Although
there was intimidation, fear, and apprehension there was not enough to be
considered force
i.
Mens
rea
i.
Schulhofer
Test
1.
An
actor is guilty of sexual abuse, a felony of the 3rd degree, if he
commits an act of sexual penetration with another person, when he knows that he
does not have the consent of the other person
2.
Consent,
for purposes of this section, means that at the time of sexual penetration
there are actual words or conduct indicating affirmative, free given permission
to the act of sexual penetration
ii.
Fischer (p. 1139)
1.
Victim
had some contact with perpetrator earlier in his dorm room – when she went
there later he assumed that she consented based on previous actions
2.
Force
includes physical, moral, psychological, or intellectual force
3.
Mistake
of fact not available in this case
iii.
Generally,
mistake of fact can be a defense to rape based on which jurisdiction