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[Note: Numbers in brackets refer
to the printed pages of the Emanuel Law Outline where the topic is discussed.]
Emanuel Law Outlines
Criminal Law
Chapter 1
ACTUS REUS AND MENS REA
I. GENERAL
A. Four elements: All crimes have
several basic common elements: (1) a voluntary act (“actus reus”); (2) a
culpable intent (“mens rea”); (3) “concurrence” between the mens rea
and the actus reus; and (4) causation of harm. [1]
II. ACTUS REUS
A. Significance of concept: The
defendant must have committed a voluntary act, or “actus reus.” Look for
an actus reus problem anytime you have one of the following situations: (1) D
has not committed physical acts, but has “guilty” thoughts, words, states
of possession or status; (2) D does an involuntary act; and (3) D has an
omission, or failure to act. [1]
B. Thoughts, words, possession and
status: Mere thoughts are never punishable as crimes. (Example: D writes in
his diary, “I intend to kill V.” This statement alone is not enough to
constitute any crime, even attempted murder.) [1]
a. Knowledge: When mere
possession is made a crime, the act of “possession” is almost always
construed so as to include only conscious possession. (Example: If the
prosecution fails to prove that D knew he had narcotics on his person,
there can be no conviction.) [1]
C. Act must be voluntary: An act
cannot satisfy the actus reus requirement unless it is voluntary. [3 - 5]
Example: D, while walking down the
street, is stricken by epileptic convulsions. His arm jerks back, and he
strikes X in the face. The striking of X is not a voluntary act, so D cannot
be held criminally liable. But if D had known beforehand that he was subject
to such seizures, and unreasonably put himself in a position where he was
likely to harm others -- for instance, by driving a car -- this initial act
might subject him to criminal liability.
Example: If D can show that at the
time of the crime he was on “automatic pilot,” and was completely
unconscious of what he was doing, his act will be involuntary. (But the mere
fact that D has amnesia concerning the period of the crime will not be a
defense.)
Example: D, a member of a cult run
by Leader, lets himself be hypnotized. Before undergoing hypnosis, D knows
that Leader often gives his members orders under hypnosis to commit crimes.
D can probably be held criminally liable for any crimes committed while
under hypnosis, because he knowingly put himself in a position where this
might result.
D. Omissions: The actus reus
requirement means that in most situations, there is no criminal liability for
an omission to act (as distinguished from an affirmative act). [5 - 9]
Example: D sees V, a stranger,
drowning in front of him. D could easily rescue V. D will normally not be
criminally liable for failing to attempt to rescue V, because there is no
general liability for omissions as distinguished from affirmative acts.
a. Special relationship: Where D
and V have a special relationship -- most notably a close blood
relationship -- D will be criminally liable for a failure to act.
(Example: Parent fails to give food or water to Child, and Child dies.
Even if there is no general statute dealing with child abuse, Parent can
be held liable for murder or manslaughter, because the close relationship
is construed to impose on Parent an affirmative duty to furnish
necessities and thereby prevent death.) [6]
b. Contract: Similarly, a legal
duty may arise out of a contract. (Example: Lifeguard is hired by City to
guard a beach. Lifeguard intentionally fails to save Victim from drowning,
even though he could easily do so. Lifeguard will probably be criminally
liable despite the fact that his conduct was an omission rather than an
act; his contract with City imposed a duty to take affirmative action.)
[7]
Example: D digs a hole in the
sidewalk in front of his house, acting legally under a building permit. D
sees V about to step into the hole, but says nothing. V falls in and dies.
D can be held criminally liable for manslaughter, because he created the
condition -- even though he did so innocently -- and thus had an
affirmative duty to protect those he knew to be in danger.
d. Undertaking: Finally, D may
come under a duty to render assistance if he undertakes to give
assistance. This is especially true where D leaves V worse off than he was
before, or effectively dissuades other rescuers who believe that D is
taking care of the problem. [8]
Example: V is drowning, while D
and three others are on shore. D says, “I'll swim out to save V.” The
others agree, and leave, thinking that D is taking care of the situation.
Now, D will be criminally liable if he does not make reasonable efforts to
save V.
III. MENS REA
A. Meaning: The term “mens rea”
symbolizes the requirement that there be a “culpable state of mind.” [11]
1. Not necessarily state of mind:
Most crimes require a true “mens rea,” that is, a state of mind that is
truly guilty. But other crimes are defined to require merely
“negligence” or “recklessness,” which is not really a state of mind
at all. Nonetheless, the term “mens rea” is sometimes used for these
crimes as well: thus one can say that “for manslaughter, the mens rea is
recklessness.” There are also a few crimes defined so as to require no
mens rea at all, the so called “strict liability” crimes. [11]
B. General vs. specific intent: Court
traditionally classify the mens rea requirements of various crimes into three
groups: (1) crimes requiring merely “general intent”; (2) crimes requiring
“specific intent”; and (3) crimes requiring merely recklessness or
negligence. (Strict liability crimes form a fourth category, as to which there
is no culpable mental state required at all.) [12 - 13]
2. “Specific intent”: Where a
crime requires “specific intent” or “special intent,” this means
that D, in addition to desiring to bring about the actus reus, must have
desired to do something further. [13 - 13]
Example of general intent crime:
Battery is usually a “general intent” crime. The actus reus is a
physical injury to or offensive touching of another. So long as D intends to
touch another in an offensive way, he has the “general intent” that is
all that is needed for battery. (Thus if D touches V with a knife, intending
merely to graze his skin and frighten him, this will be all the (general)
intent needed for battery, since D intended the touching, and no other
intent (such as the intent to cause injury) is required.
Example of specific intent crime:
For common-law burglary, on the other hand, it must be shown that D not only
intended to break and enter the dwelling of another, but that he also
intended to commit a felony once inside the dwelling. This latter intent is
a “specific intent” -- it is an intent other than the one associated
with the actus reus (the breaking and entering).
a. Intoxication: Intoxication
rarely negates a crime of general intent, but may sometimes negate the
specific intent for a particular crime. (Example: D breaks and enters, but
is too drunk to have any intent to commit larceny or any other felony
inside; D probably is not guilty of burglary.) [13]
Example: D breaks and enters, in
an attempt to carry away something which he mistakenly thinks belongs to
him; D will probably be acquitted of burglary, where mistake will
generally not negate a general intent (e.g., the intent to commit the
breaking and entering by itself).
4. Abandonment of distinction:
However, many modern codes, and the Model Penal Code, have abandoned the
general/specific distinction, and instead set forth the precise mental state
required for each element of each crime. [13]
C. “Purposely” as mental state:
Many crimes are defined to be committed only where a person acts
“purposely” with respect to a particular element of a crime. Other crimes
are defined to require the similar, but not identical, mental state of
“intentionally.” [14 - 16]
2. Not the same as “knowingly”:
In modern statutes, “purposely” is not the same as “knowingly.” If D
does not desire a particular result, but is aware that the conduct or result
is certain to follow, this is not “purposely.” [16]
Example: D consciously desires to
kill A, and does so by putting a bomb on board a plane that contains both A
and B. Although D knew B's death was certain, a modern court would probably
not hold that D “purposely” killed B, (although D might nonetheless be
guilty of murder on the grounds that he acted with a “depraved heart”).
Example: D, in an act of
euthanasia, kills V, his wife, who has terminal cancer. D will be held to
have “purposely” or “intentionally” killed V, even though he did it
for ostensibly “good” motives.
a. Relevant to defenses: Special
motives may, however, be relevant to the existence of a defense (e.g., the
defense of self-defense or necessity).
D. “Knowingly”: Modern statutes,
and the Model Penal Code, define some crimes to require that D “knowingly”
take an act or produce a result. The biggest distinction between
“purposely” and “knowingly” relates to D's awareness of the
consequences of his act: if the crime is defined with respect to a certain
result of D's conduct, D has acted knowingly (but not “purposely”) if he
was “aware that it is practically certain that his conduct will cause that
result.” [16 - 19]
Example: On the facts of our earlier
“bomb on the airplane” example, D will have “knowingly” killed B, but
not “purposely” killed B, because he was aware that it was practically
certain that his conduct would cause B's death.
1. Presumption of knowledge: A
statutory or judge-made presumption may be used to help prove that D acted
“knowingly.” (Example: In many statutes governing receipt of stolen
property, D's unexplained possession of property which is in fact stolen
gives rise to a presumption that D knew the property was stolen.) [18]
2. Knowledge of attendant
circumstances: Where a statute specifies that D must act “knowingly,”
and the statute then specifies various attendant circumstances which the
definition of the crime makes important, usually the requirement of
knowledge is held applicable to all these attendant circumstances. [18]
Example: A statute provides that
any dealer in used merchandise must file a report with the police if the
dealer “knowingly purchases a used item from one who is not in the
business of selling such items, at a price less than half of the fair market
value of the item.” The statute's purpose is to cut down on the
“fencing” of stolen goods. D, a used merchandise dealer, buys a vase for
$500 that is really worth $2,000. Most courts would require the prosecution
to show that D knew not only that he was purchasing the vase, but that he
knew he was paying less than half of the vase's fair market value. In other
words, D must be shown to have acted knowingly with respect to all of the
attendant circumstances, including the circumstance that the purchase price
was much less than the value.
E. “Recklessly”: A person acts
“recklessly” if he “consciously disregards a substantial and
unjustifiable risk....” MPC §2.02(2). The idea is that D has behaved in a
way that represents a gross deviation from the conduct of a law-abiding
person. [19 - 20]
1. Must be aware of risk: Most
courts, and the Model Penal Code, hold that D is reckless only if he was
aware of the high risk of harm stemming from his conduct. This is a
“subjective” standard for recklessness. But a substantial minority of
courts and statutes hold that D can be reckless if he behaves extremely
unreasonably even though he was unaware of the risk. [19]
Example: D runs a nightclub with
inadequate fire exits. A fire breaks out, killing hundreds. Under the
majority “subjective” standard for recklessness, D was reckless only if
he actually knew of the high risk of harm posed by inadequate fire exits.
Under the minority “objective” standard, it would be enough that D was
extremely careless and that a reasonable person would have known of the
great danger, even though D did not.
F. “Negligently”: Some statutes
make it a crime to behave “negligently” if certain results follow. For
instance, the crime of “vehicular homicide” is sometimes defined to
require a mens rea of “criminal negligence.” [20 - 21]
1. Awareness not required: Most
modern statutes, and the Model Penal Code, allow a finding of criminal
negligence even if D was not aware of the risk imposed by his conduct (as in
the above night-club fire example). [20]
2. “Gross” negligence required:
Usually, criminal negligence is “gross” negligence. That is, the
deviation from ordinary care must be greater than that which would be
required for civil negligence. [21]
G. Strict liability: Some offenses
are “strict liability.” That is, no culpable mental state at all must be
shown -- it is enough that D performed the act in question, regardless of his
mental state. [21 - 24]
Examples of strict liability crimes:
The following are often defined as strict liability offenses: Statutory rape
(D is generally guilty if he has intercourse with a girl below the prescribed
age, regardless of whether he knew or should have known her true age);
mislabeling of drugs; polluting of water or air; concealment of a dangerous
weapon while boarding an aircraft.
2. Interpretation: The mere fact
that the statute does not specify a mental state does not mean that the
crime is a strict liability one -- judges must determine whether a
particular mental state was intended by the legislature. In general, the
older the statute (especially if it is a codification of a common-law
crime), the less likely it is to be a strict-liability offense. Most strict
liability offenses are modern, and are of relatively low heinousness. [22 -
23]
a. Complex statute that is easy
to violate innocently: If the statute is complex, or easy to violate
innocently, or imposes serious penalties, the court is likely to read in a
mens rea requirement, and thus to refuse to treat the statute as imposing
strict liability. [Staples v. U.S.] [22]
H. Vicarious liability: Statutes
sometimes impose upon one person liability for the act of another; this is
commonly called “vicarious liability.” In essence, the requirement of an
act (actus reus) has been dispensed with, not the requirement of the wrongful
intent. [24 - 26]
Example: Statutes frequently make an
automobile owner liable for certain acts committed by those to whom he lends
his car, even without a showing of culpable mental state on the part of the
owner.
Example: D is a tavern owner
whose employee served a minor. If D did not know of this act, or in any
way acquiesce in its commission, some courts would hold that D may not
constitutionally be imprisoned for it.
I. Mistake: Defendants raise the
defense of mistake when they have been mistaken either about the facts or the
law. Do not think of “mistake” as being a separate “doctrine.”
Instead, look at the effect of the particular mistake on D's mental state, and
examine whether he was thereby prevented from having the mental state required
for the crime. [26 - 32]
Example: Assume that the requisite
mental intent for larceny is the intent to take property which one knows or
believes to belong to another. D takes V's umbrella from a restaurant,
thinking that it is his own. D's factual mistake -- his belief about who owns
the umbrella -- is a defense to the theft charge, because it negates the
requisite mental state (intent to take the property which one knows or
believes belongs to another).
Example: Murder is often thought of
as a “general intent” crime in the sense that it will be enough that D
either intends to kill, intends to commit grievous bodily injury, is
recklessly indifferent to the value of human life or intends to commit any
of certain non-homicide felonies. Suppose D shoots a gun at V, intending to
hit V in the arm and thus create a painful but not serious flesh wound. D
mistakenly believes that V is in ordinary health, when in fact he is a
hemophiliac. D's mistake will not help him, because even had the facts been
as D supposed them to be, D would have had a requisite mental state, the
intent to commit grievous bodily injury.
2. “Lesser crime” theory: D's
mistake will almost never help him if, had the facts been as D mistakenly
supposed them to be, his acts would still have been a crime, though a lesser
one. This is the “lesser crime” theory. [29]
Example: D steals a necklace from a
costume jewelry store. The necklace is made of diamonds, and is worth
$10,000, but D mistakenly believes it to be costume jewelry worth less than
$500. In the jurisdiction, theft of something worth less than $500 is a
misdemeanor, and theft of something worth more than that is a felony. D is
guilty of a crime -- a felony in most states -- because even had the facts
been as he supposed them to be, he still would have been guilty of some
crime. (But some states, and the Model Penal Code, would scale his crime
back to the crime that he would have committed had the facts been as he
supposed, in this case, a misdemeanor.)
a. Moral wrong: Older decisions
extend this principle to deny D of the defense of mistake if, under the
facts as D believed them to be, his conduct and intent would have been
“immoral.” But modern statutes reject this view. [26]
3. Mistake must be
“reasonable”: Older cases often impose the rule that a mistake cannot be
a defense unless it was “reasonable.” But the modern view, and the view
of the MPC, is that even an unreasonable mistake will block conviction if
the mistake prevented D from having the requisite intent or knowledge. [27]
Example: D attempts
(unsuccessfully) to have sex with a girl he meets on the street. He is
charged with assault with intent to rape. D shows that he actually, but
unreasonably, believed that V was a prostitute, because prostitutes
frequented that area. A traditional court would probably hold that the
mistake was no defense, since D's mistake was “unreasonable.” But a
modern court might allow the defense, since had the facts been as D supposed
them to be, he would not have intended to commit a crime (unconsented-to
sex).
a. Rejection by finder of fact:
Remember that even in a “modern” jurisdiction, the finder of fact is
always free to disbelieve that the mistake really occurred. Thus on the
facts of the above example, the more “unreasonable” D's story that he
thought V was a prostitute, the quicker the jury (or the judge in a bench
trial) can be to conclude simply that D was not in fact mistaken. [27]
a. Generally no defense: As a
general rule, “mistake of law is no defense.” More precisely, this
means that the fact that D mistakenly believes that no statute makes his
conduct a crime does not furnish a defense. [27]
Example: D, who is retarded, does
not realize that unconsented-to intercourse is a crime. D has
unconsented-to intercourse with V. D's ignorance that unconsented-to
intercourse is a crime will not be a defense; so long as D intended the
act of intercourse while knowing that V did not consent, he is guilty.
i. Reasonable mistake: In this
core “D mistakenly believes that no statute makes his conduct a
crime” situation, even a reasonable mistake about the meaning of the
statute will usually not protect D. In other words, so long as the crime
is not itself defined in a way that makes D's guilty knowledge a
prerequisite, there is usually no “reasonable mistake” exception to
the core “mistake of law is no defense” rule.
b. Mistake of law as to
collateral fact: It is important to remember that the oft-stated
“rule,” “ignorance of the law is no excuse,” really only means
“ignorance that a statute makes one's conduct a crime is no excuse.” A
mistake of law as to some collateral fact may negative the required mental
state, just as a mistake of fact may do so. [29]
Example 1: D's car has been
repossessed by Finance Co. D finds the car, breaks in, and takes it back.
D's belief that the car is still legally his will absolve him, because it
prevents him from having the requisite mental state for theft (intent to
take property which one knows or believes to belong to another). (But if D
had taken his neighbor's car, his ignorance that there is a statute making
it a crime to take one's neighbor's property would not be a defense.)
Example 2: D reasonably believes
that he has been divorced from W, his first wife, but in fact the
“divorce” is an invalid foreign decree, which is not recognized under
local law. D then marries V. D's “mistake of law” about the
enforceability of the prior divorce will negative the intent needed for
bigamy (intent to have two spouses at once).
c. Mistake of law defense built
in: Of course, it's always possible for the legislature to write a statute
in such a way that a mistake of law will constitute a defense (or so that
awareness of the criminality of the conduct is an element of the offense).
For instance, the legislature might do this by defining the crime to
consist of a “willful violation” -- the use of the word “willful”
would probably be interpreted to require knowledge by the defendant that
his act was prohibited by law. [32 - 33]
Example: A federal statute
prohibits “structuring” bank transactions to evade the requirement
that all transactions over $10,000 be reported to the government. Another
statute makes it a crime to “willfully” violate the first statute.
Held, D cannot be convicted of a willful violation of the statute unless
the prosecution shows that he was aware of the ban on structuring. [Ratzlaf v. U.S.]
IV. CONCURRENCE
A. Two types of concurrence required:
There are two ways in which there must be “concurrence” involving the mens
rea: (1) there must be concurrence between D's mental state and the act; and
(2) there must be concurrence between D's mental state and the harmful result,
if the crime is one defined in terms of bad results. [35]
B. Concurrence between mind and act:
There must be concurrence between the mental state and the act. [35 - 37]
Example: Common-law larceny is
defined as the taking of another's property with intent to deprive him of
it. D takes V's umbrella from a restaurant, thinking that it is his own.
Five minutes later, he realizes that it belongs to V, and decides to keep
it. D has not committed larceny, because at the time he committed the act
(the taking), he did not have the requisite mental intent (the intent to
deprive another of his property). The fact that D later acquired the
requisite intent is irrelevant.
Example: D intends to kill V. While
driving to the store to buy a gun to carry out his intent, D accidentally
runs over V and kills him. D is not guilty of murder, even though the intent
to kill V existed at the time the act (driving the car over V) took place.
This is because D's intent to kill did not “cause” the act (driving the
car over V).
a. Any action that is legal cause
of harm: Most crimes are defined in terms of harmful results (e.g.,
homicide is the wrongful taking of a life). Where D takes several acts
which together lead to the harmful result, the concurrence requirement is
met if the mental state concurs with any act that suffices as a legal
cause of the harm. [36 - 37]
i. Destruction or concealment of
a “body”: Because of this rule, D will be guilty if he attempts to
kill his victim, believes the victim to be dead, and then destroys or
conceals the “body,” killing the victim for real. (Example: D strikes
V over the head, and thinking V is dead, pushes him over a cliff to
destroy the body. The autopsy shows that the blows did not kill V and
probably would not have killed him. V really died from the fall off the
cliff. Most courts would find D guilty, probably on the theory that the
blows to the head were a cause of harm, and the guilty intent (to kill V)
caused the blows. [Thabo Meli v. Regina, 1 All E.R. 373 (Eng. 1954)])
C. Concurrence between mind and
result: There must also be concurrence between the mental state and the
harmful result, if the crime is one defined in terms of bad results (such as
homicide, rape, larceny, etc.) Basically this aspect of concurrence means that
if what actually occurred is too far removed from what was intended, there
will be no concurrence and thus no liability. [37 - 40]
1. Different crime: Thus if the
harm which actually occurs is of a completely different type from what D
intended, D will generally not be guilty of the other crime. In other words,
the intent for one crime may not usually be linked with a result associated
with a different crime. [37]
Example: D attempts to shoot V to
death while V is leaving his house. The shot misses and ruptures V's stove,
causing V's house to burn down. Assuming that arson is defined so as to
require an intent to burn, D will not be guilty of arson, because the intent
for one crime (murder) cannot be matched with the result for another crime
(burning) to produce guilt for the latter crime.
Example: D recklessly takes target
practice with his rifle in a crowded area; what makes his conduct reckless
is the high risk that D will injure or kill a person. One of D's shots hits
a gas tank, and causes a large fire. Assuming that the danger of causing a
fire was not large, D will not be convicted of arson (even if arson is
defined to include reckless burning), since his conduct was reckless only
with respect to the risk of bodily harm, not the risk of burning.
a. Felony-murder: First, if D is
engaged in the commission of certain dangerous felonies, he will be liable
for certain deaths which occur, even if he did not intend the deaths. This
is the “felony-murder” rule. [38]
b. Misdemeanor-manslaughter:
Second, if D was engaged in a malum in se misdemeanor (a misdemeanor that
is immoral, not just regulatory), and a death occurs, D may be liable for
involuntary manslaughter, even though his conduct imposed very little risk
of that death and the death was a freak accident. This is the
“misdemeanor-manslaughter” rule. [38]
a. Actual result more serious
than intended: Thus if the actual harm is greater, and related to, the
intended result, D is generally not liable for the greater harm. [39]
Example: Assume simple battery is
defined as the intentional causing of minor bodily harm, and aggravated
battery is defined as the intentional causing of grievous bodily harm. D
gets into a minor scuffle with V, intending merely to hit him lightly on
the chin. But V turns out to have a “glass jaw,” which is fractured by
the blow. D will not be held guilty of aggravated battery, just simple
battery, since his intent was only to produce that lesser degree of injury
required for simple battery.
i. Exceptions in homicide
cases: But again, we have two exceptions to this rule when death
results. First, under the misdemeanor-manslaughter rule, if D's minor
attack on V unexpectedly causes V to die, D is guilty of manslaughter
(as he would be on the facts of the above example if V unexpectedly bled
to death). Second, if D intended to seriously injure V but not kill him,
in most states he will be guilty of murder if V dies from the attack,
because most states have a form of murder as to which the mental state
is intent-to-grievously-injure.
Chapter 2
CAUSATION
I. INTRODUCTION
A. Two aspects of causation:
“Causation” in criminal law relates to the link between the act and the
harmful result. The prosecution must show that the defendant's actus reus
“caused” the harmful result, in two different senses: (1) that the act was
the “cause in fact” of the harm; and (2) that the act was the
“proximate” cause (or the “legal” cause) of the harm. [44]
II. CAUSE IN FACT
A. Two ways: There are two ways in
which an act can be the “cause in fact” of harm: (1) by being the “but
for” cause of the harm; and (2) by being a “substantial factor” in
creating the harm. These categories overlap, but not completely. [44]
B. The “but for” rule: Most
often, the act will be the “cause in fact” of the harm by being the “but
for” cause of that harm. To put the idea negatively, if the result would
have happened anyway, even had the act not occurred, the act is not a cause in
fact of that result. [44]
Example: D shoots at V, but only
grazes him, leaving V with a slightly bleeding flesh wound. X, who has always
wanted to kill V, finds V (in the same place V would have been in had D not
shot at V), and shoots V through the heart, killing him instantly. D's act is
not a “cause in fact” of V's death, under the “but for” test -- since
V would have died, in just the manner and at the same time he did, even if D
had not shot him, D's act was not the “but for” cause of V's death. Unless
D's act is found to have been a “substantial factor” in V's death (the
other test for causation in fact), which it probably would not, D's act is not
the “cause in fact” of V's death, and D therefore cannot be punished for
that death.
C. “Substantial factor” test: D's
act will be found to be the cause in fact of harm, even if the act is not the
“but for” cause, if the act was a “substantial factor” in bringing
about the result. [44]
Example: At a time of widespread
riots, D sets fire to a house at 99 Main Street, and X simultaneously sets
fire to one at 103 Main Street. A house at 101 Main Street is consumed by the
blaze from the two fires. D is charged with arson. He shows that even had he
not torched 99, the flames from 103 would have been enough to burn down 101 at
the same time it actually did burn. (Thus D's act was not the “but for”
cause of the burning of 101.) However, since D's conduct was a (though not the
sole) “substantial factor” in burning down 101, he was a “cause in
fact” of the fire and will therefore be liable for arson.
Example: X poisons D, in such a way
that despite all medical efforts, V will definitely die within one day. One
hour after V drinks the poison, D shoots V, killing him instantly. Since V
would have died shortly anyway, it can be argued that D's shooting was not
the “but for” cause of V's death. But since D shortened V's life, a
court would certainly find that D was a “substantial factor” in causing
V's death, and would find him guilty of murder.
a. Intervening act shortens V's
life: Where the first person to do harm is charged, and defends on the
grounds that the second person's intervening act should relieve him of
liability, it's a closer question, but many courts will find the first
person to be guilty here as well. [45]
Example: Same facts as above
example, except now X, rather than D, is charged with murder. Assuming
that V would inevitably have died from the poison had D not come along to
shoot him, courts are split about whether D is relieved from liability by
the intervening shooting.
2. Conspiracy: The above discussion
of the “substantial factor” rule assumes that the two concurring acts
occurred independently of each other. If the two occurred as part of a joint
enterprise, such as a conspiracy, the act of each person will be attributed
to the other, and there will be no need to determine whether each act was a
substantial factor in leading to the harm. [46]
Example: X and D each shoot V, as
part of a successful conspiracy to kill V. Even if D's shot only caused a
small flesh wound and did not really contribute to V's death, D is guilty of
murder, because his co-conspirator's fatal shot will be attributable to D
under the law of conspiracy.
III. PROXIMATE CAUSE GENERALLY
A. Definition of “proximate
cause”: It is not enough that D's act was a “cause in fact” of the harm.
The prosecution must also show that the act and harm are sufficiently closely
related that the act is a “proximate” or “legal” cause of that harm.
This is a policy question: Is the connection between the act and the harm so
stretched that it is unfair to hold D liable for that harm? [46]
B. Year-and-a-day rule in homicide:
One common-law rule that expresses the proximate-cause idea is the “year and
a day” rule in homicide cases: D cannot be convicted if the victim did not
die until a year and a day following D's act. Many states continue to impose
this rule. [47]
C. Types of problems raised: Look for
two main types of proximate cause problems: (1) situations where the type of
harm intended occurred, and occurred in roughly the manner intended, but the
victim was not the intended one; and (2) cases where the general type of harm
intended did occur and occurred to the intended victim, but occurred in an
unintended manner. [47]
IV. PROXIMATE CAUSE -- UNINTENDED
VICTIMS
A. Transferred intent: It will not
generally be a defense that the actual victim of D's act was not the intended
victim. Instead, courts apply the doctrine of “transferred intent,” under
which D's intent is “transferred” from the actual to the intended victim.
[47 - 48]
Example: D, intending to kill X,
shoots at X. Because of D's bad aim, D hits and kills V instead. D is guilty
of the murder of V, because his intent is said to be “transferred” from X
to V.
1. Danger to actual V
unforeseeable: In most courts, the “unintended victim” rule probably
applies even where the danger to the actual victim was completely
unforeseeable. (Example: While D and X are out on the desert, D shoots at X,
thinking the two are completely alone. V, sleeping behind some sagebrush, is
hit by the errant bullet. Probably D may be convicted of murdering V.) [49]
B. Same defense: In general, D in an
“unintended victim” case may raise the same defenses that he would have
been able to raise had the intended victim been the one harmed. (Example: D
shoots at X in legitimate self-defense. The bullet strikes V, a bystander. D
may claim self-defense, just as he could if the bullet had struck the intended
victim.) [49]
Example: D shoots at V, mistakenly
thinking that V is really X, D's enemy. D will be guilty of the murder of V,
just as if he had been shooting at the person who was actually X, and had
mistakenly hit V. The crime of murder requires an intent to kill, but does not
require a correct belief as to the victim's identity.
D. Crimes of recklessness or
negligence: The “unforeseen victim” problem also arises in crimes where
the mental state is recklessness or negligence, rather than intent. But in
these situations, a tighter link between D's act and V's injury is probably
required than where the crime is intentional. [50]
V. PROXIMATE CAUSE -- UNINTENDED MANNER
OF HARM
A. Generally: If D's intended victim
is harmed, but the harm occurs in an unexpected manner (though it is the same
general type of harm intended), the unexpected manner of harm may or may not
be enough to absolve D. In general, D will not be liable where the harm occurs
through a completely bizarre, unforeseeable chain of events. [51]
Example: D gets into a street fight
with V, and tries to seriously injure him. As the result of the fight, V is
knocked unconscious, recovers a few minutes later, drives away, and is hit by
the 8:02 train at a crossing. D's act is certainly a “but for” cause of
the harm to V, since had V not been knocked out, he would have continued on
his way and crossed earlier than 8:02. And the general type of harm to V --
severe bodily injury -- is the same as that intended by D. Yet all courts
would agree that the chain of events here was so unforeseeable from D's
perspective that he should not be held liable for V's death.
1. “Direct” causation vs.
“intervening” events: Courts often distinguish cases in which D's act
was a “direct” cause of the harm from those in which there was an
“intervening” cause between D's act and the harm. But the
direct/intervening distinction is only one factor -- D has a somewhat better
chance, on average, of escaping liability where there was intervening cause
than where there was not. [51]
B. Direct causation: We say that D's
act was a “direct” of V's harm if the harm followed D's act without the
presence of any clearly-defined act or event by an outside person or thing. In
direct causation situations, D is rarely able to convince the court that the
chain of events was so bizarre that D should be absolved. [51 - 53]
1. Small differences in type of
injury: If the same general type of injury (e.g., serious bodily harm,
death, burning) occurs as was intended by D, the fact that the harm deviates
in some small manner from that intended is irrelevant. [51]
Example: D attempts to poison her
husband, V, by putting strychnine in a glass of milk she serves him for
breakfast. V drinks it, and becomes so dizzy from its effect that he falls
while getting up from his chair, hitting his head on the table. He dies from
the blow to the head, and the autopsy shows that the poison would not have
been enough to kill him directly. Nearly all courts would hold that D is
guilty of murder, because her act directly caused V's death, and there was
nothing terribly bizarre about the chain of events leading to that death.
3. Pre-existing weakness: If V has
a pre-existing condition, unknown to D, that makes him much more susceptible
to injury or death than a normal person would be, D “takes his victim as
he finds him.” Thus D may not argue that his own act was not the proximate
cause of the unusually severe result. [52]
Example: D beats V up, with intent
to kill him. V runs away before many blows have fallen, and a person in
ordinary health would not have been severely hurt by the blows that did
fall. Unknown to D, however, V is a hemophiliac, who bleeds to death from
one slight wound. D is guilty of murder, even though from D's viewpoint V's
death from the slight wounds was unforeseeable.
Note: When you are looking at a
proximate cause problem, don't forget to also apply the rules of concurrence
and to insist on the correct mental state. For instance, suppose D in the
above example had only been trying to commit a minor battery on V, instead
of trying to kill him. If V died as a result of his hemophilia, D would not
be liable for common-law intent-to-kill murder, because he did not have the
requisite mental state, the intent to kill. (But he would probably be liable
for manslaughter under the misdemeanor- manslaughter rule.)
Example: During a holdup by D, V, a
storekeeper, has a fatal heart attack from the stress. In most courts, V's
death will be held to be the proximate result of D's act of robbery; coupled
with the felony-murder doctrine, this will be enough for D to be guilty of
murder, even if there was no way he could have known of V's heart condition.
[People v. Stamp]
C. Intervening acts: D's odds of
escaping liability are better where an “intervening act” or intervening
event contributes to the result than where D has “directly” caused the
harmful result. [53 - 60]
1. Dependent vs. independent
intervening acts: Courts divide intervening acts into two categories: (1)
“dependent” acts, which are ones which would not have occurred except
for D's act (e.g., medical treatment for a wound caused by D); and (2)
“independent” acts, which would have occurred even if D had not acted,
but which combined with D's act produced the harmful result. [54]
Example of dependent act: D wounds
V in a fight. X, a doctor, negligently treats V's wound, and V dies.
a. Significance: D's odds of
escaping responsibility are somewhat better where the intervening act is
“independent.” An independent intervention will break the chain of
events if it was “unforeseeable” for one in D's position. A dependent
intervening cause will break the chain only if it was both unforeseeable
and “abnormal.” An act is less likely to be considered “abnormal”
than it is to be considered merely “unforeseeable,” so D typically
does better in the independent case. [54]
a. Medical treatment: The most
common intervening act is medical treatment performed by a doctor or nurse
upon V, where this treatment is necessitated by injuries inflicted by D.
Here, the treatment is obviously in response to D's act, and therefore is
a “dependent” intervening act, so it will only supersede if the
treatment is “abnormal.” [54 - 56]
i. Negligent treatment: The fact
that the treatment is negligently performed will not, by itself, usually
be enough to make it so “abnormal” that it is a superceding event. But
if the treatment is performed in a reckless or grossly negligent manner,
the treatment will usually be found to be “abnormal” and thus
superseding.
Example: D shoots V. There is a
doctor, X, standing by who could, with 100% certainty, prevent V from
dying. X refuses to render assistance because he hates V and wants V to
die. D will still be the proximate cause of death -- a third party's
failure to act will never supersede.
b. Victim tries to avoid danger:
If the victim attempts to avoid the danger posed by D, and this attempted
escape results in additional injury, the attempt will be a superseding
cause only if it is an “abnormal” reaction. [58]
Example: D kidnaps V by locking
her in a room. V tries to escape by knotting bed sheets together, and
falls to her death while climbing down. V's escape would probably be found
not to be “abnormal” even if it is was “unforeseeable,” so it will
not be a superseding cause, and D will be the proximate cause of death.
The felony-murder rule will then make D guilty of V's death, even though D
did not have any of the mental states for ordinary murder.
Chapter 3
RESPONSIBILITY
I. THE INSANITY DEFENSE
A. General purpose: If D can show he
was insane at the time he committed a criminal act, he may be entitled to the
verdict “not guilty by reason of insanity.” [67]
1. Mandatory commitment: If D
succeeds with the insanity defense, he does not walk out of the courtroom
free. In virtually every state, any D who succeeds with the insanity defense
will be involuntarily committed to a mental institution. [67]
3. Limits use of mental disease: In
many states, the insanity defense is coupled with a rule that no evidence
relating to mental disease or defect may be introduced except as part of an
insanity defense. (Example: D is charged with knifing his wife to death. In
many states, D will not be permitted to show that his mental disease
prevented him from forming an intent to kill her. In these states, D's sole
method for showing the relevance of his mental disease is via the insanity
defense.) [67]
B. Tests for insanity: The principal
tests for whether D was insane -- each used in some jurisdictions -- are as
follows: [68 - 73]
Example 1: D strangles V, his
wife, believing that he is squeezing a lemon. Even under the relatively
strict M'Naghten test, D would probably be ruled insane, on the grounds
that he did not understand the “nature and quality” of his act.
Example 2: D is attracted to
bright objects, and therefore shoplifts jewelry constantly, though
intellectually he knows that this is morally wrong and also illegal. D is
not insane under the M'Naghten test, because he understood the nature and
quality of his act, and knew that his act was wrong. The fact that he may
have acted under an “irresistible impulse” is irrelevant under the
M'Naghten rule.
2. “Irresistible impulse” test:
Many states, including about half of those states that follow M'Naghten,
have added a second standard by which D can establish his insanity: that D
was unable to control his conduct. This is sometimes loosely called the
“irresistible impulse” defense. (Example: On the facts of Example 2
above, D would be acquitted, because although he understood that it was
wrong to shoplift shiny things, he was unable to control his conduct.) [70]
3. Model Penal Code standard: The
Model Penal Code (§4.01(1)) allows D to be acquitted if “as a result of
mental disease or defect he lacks substantial capacity either to appreciate
the criminality of his conduct or to conform his conduct to the requirements
of the law.” Thus D wins if he can show either that he didn't know his
conduct was wrong, or that he couldn't control his conduct. Essentially, D
wins if he satisfies either the M'Naghten test or the irresistible impulse
test, under the MPC approach. [70 - 72]
4. The federal standard: The modern
federal standard (in force since 1984) sets a very stringent standard for
federal prosecutions. D wins only if “as a result of a severe mental
disease or defect, [he] was unable to appreciate the nature and quality or
the wrongfulness of his acts....” This is essentially the M'Naghten
standard. The fact that D was unable to conform his conduct to the
requirements of the law is irrelevant -- in other words, in federal suits,
there is no “irresistible impulse” defense. [72]
1. Who raises defense: In nearly
all states, the insanity defense is an affirmative defense. That is, D is
required to come forward with evidence showing that he is insane -- only
then does D's sanity enter the case. [73]
2. Burden of persuasion: After D
bears his burden of production by showing some evidence of insanity, courts
are split about who bears the “burden of persuasion,” i.e., the burden
of convincing the fact-finder on the insanity issue. In half the states, the
prosecution must prove beyond a reasonable doubt that D is not insane. In
the remaining states, D bears the burden of proving his insanity, but only
by a “preponderance of the evidence.” In the federal system, the rule is
even tougher on D: D must prove insanity by “clear and convincing
evidence.” [73]
a. Court-appointed expert:
Whether or not a psychiatrist is appointed for D's benefit, in most states
the court has the power to appoint a theoretically impartial psychiatrist
to conduct an independent examination of D, the results of which will be
admissible at the trial. Often, this appointment is done at the request of
the prosecution. [74]
a. Decision left to jury: Courts
try hard to ensure that the ultimate decision is in fact made by the jury,
not by the psychiatric expert witnesses. The jury is always free to
disregard or disbelieve the expert witness' evaluation of D's condition.
In fact, in federal trials, the federal insanity statute prevents either
side's expert from even testifying as to the ultimate issue of D's sanity.
See FRE 704(b). [75]
D. XYY chromosome defense: Some
states allow D to buttress his insanity defense by showing that he has a
certain chromosomal abnormality, the so-called “XYY chromosome defense,”
since XYY men are much more likely to commit certain kinds of crimes than men
with normal chromosomes. [77 - 77]
E. Commitment following insanity
acquittal: In nearly every state, if D is acquitted by reason of insanity, he
will end up being committed to a mental institution. In some states (and in
the federal system) the judge is required by law to commit D to a mental
institution, without even a hearing as to present sanity. [77] (Such a
mandatory commitment procedure does not violate the constitution. [Jones v. U.S., 463 U.S. 354
(1983)]) In
other states, the judge or the jury conducts a hearing to decide whether D is
still insane and in need of commitment. [77 - 78]
a. Constitutional requirements:
The Due Process Clause of the federal Constitution places limits on the
conditions under which an insanity acquitee may be kept in an institution.
The state may automatically commit an insanity acquitee without a hearing,
as noted above. But the state must then periodically offer D the
opportunity to be released. The state must release D if he bears the
burden of proving that he is either no longer insane or no longer
dangerous. (Probably the state may not impose on D any burden more
difficult than the “preponderance of the evidence” standard for
establishing either that he is no longer insane or that he is no longer
dangerous.) [Foucha v. Louisiana, 112
S.Ct. 1780 (1992)] [78]
F. Fitness to stand trial: The
insanity defense can also be asserted as a grounds for not trying D on the
grounds that he is incompetent to stand trial. In general, D will be held to
be incompetent to stand trial if he is unable to do both of the following: (1)
understand the proceedings against him; and (2) assist counsel in his defense.
[78 - 79]
1. Burden of proof: Many
jurisdictions place the burden of proof as to incompetence upon the
defendant. The U.S. Supreme Court has held that it is not unconstitutional
for the state to place upon D the burden of proving by a preponderance of
the evidence that he is incompetent to stand trial. [Medina v. California, 505
U.S. 437 (1992)] [78]
G. Insanity at time set for
execution: If the defendant is insane at the time set for his execution, he
may not be executed. Execution of a prisoner who is currently insane violates
the Eighth Amendment's ban on cruel and unusual punishment. [Ford v. Wainwright, 477 U.S.
399 (1986)]
[79]
II. DIMINISHED RESPONSIBILITY
A. Where and how used: Under the
defense of “diminished responsibility,” a non-insane D argues that he
suffers such a mental impairment that he is unable to formulate the requisite
intent. [80 - 83]
B. Insanity supersedes: More than
half of the states reject the doctrine of diminished responsibility. Usually,
they do so by holding that no evidence that D suffers from a mental disease or
defect may be introduced, except pursuant to a formal insanity defense. [81]
III. AUTOMATISM
A. Defense generally: Under the
“automatism” defense, D tries to show that a mental or physical condition
prevented his act from being voluntary. [83 - 84]
Example: While D is in bed with his
wife, V, he strangles her. D shows that the strangling occurred while he was
in the throes of an epileptic seizure, and that he was not conscious of what
he was doing. If the fact-finder believes this story, D will be acquitted,
because the strangling was not a voluntary act.
B. Generally allowed: Most courts
allow the automatism defense as a distinct defense from the insanity defense.
[83]
2. Other variants: Apart from the
common instance of epileptic seizures, the automatism defense might be used
where: (1) D lapsed into unconsciousness because of low blood sugar; (2) D
was unable to control her actions because of Premenstrual Syndrome; or (3) D
was unable to control his conduct because of Post Traumatic Stress Disorder
(PTSD) suffered as the result of wartime experiences. [83]
IV. INTOXICATION
A. Voluntary intoxication: Voluntary
self-induced intoxication does not “excuse” criminal conduct, in general.
[84 - 89]
Example: D decides to rob a bank.
Normally, he would be too timid to do so. However, he takes several drinks to
increase his courage, and goes out and does the robbery. The fact that D was
legally intoxicated when he committed the robbery will be completely
irrelevant.
a. General/specific intent
distinction: Traditionally, courts have distinguished between crimes of
“general intent” and “specific intent.” In a crime of “general
intent,” intoxication would never be a defense. In a crime requiring
“specific intent” (i.e., intent to do an act other than the actus
reus, such as the intent to commit a felony as required for burglary), D
would be allowed to show that intoxication prevented him from having the
requisite specific intent. (Example: If D was charged with assault with
intent to kill, he could show that he was too drunk to have an intent to
kill.) [85]
2. Modern trend: But modern courts
usually don't distinguish between general and specific intent. Instead,
modern courts generally allow D to show that his intoxication, even
involuntary, prevented him from having the requisite mental state. See MPC
§2.08(1) (self-induced intoxication “is not a defense unless it negatives
an element of the offense”). [85]
Example: Suppose that in a
particular jurisdiction, first degree murder is defined so that D must be
shown to have had the intent to kill, and it is not enough for him to
recklessly disregard the risk of death. At a time when D has no intent to do
anyone harm, he gets drunk in a bar. He then shoots his pistol towards V,
intending only to frighten V as a joke. Had D been sober, he would have
realized that V would be hit and possibly killed. D should be acquitted,
because his drunken state prevented him from having the required intent,
namely an intent to kill.
a. Pre-intoxication intent:
Remember that it is not necessary for D to have the required intent at the
time of the actus reus. Therefore, the fact that D's drunkenness prevented
him from having the requisite intent at the time of the actus reus will
not necessarily get him off the hook if he had the intent earlier. [87]
Example: D, sober, decides to
place a bomb under V's car, in the hopes that V will be blown up. D
prepares the bomb. D then gets drunk. In his drunken stupor, he places the
bomb under X's car; he is so drunk that he forgets why he is doing this,
and at the moment the bomb is placed (and the moment a little while later
when it goes off), D has no intent to harm anyone. D's drunkenness will
not get him off the hook, because he had the requisite intent to kill at
the moment he first prepared the bomb.
4. Doesn't negate recklessness: The
most important single fact to remember about intoxication is that in most
courts, intoxication will not negate the element of recklessness. In other
words, if a particular element of a crime can be satisfied by a mental state
of recklessness, D's intoxication will be irrelevant. [86]
a. Rape: For instance, in many
“date rape” cases, D argues that V consented, or at least that D
believed that V was consenting. But in most states (and under the MPC),
D's reckless mistake about whether V consented will satisfy the mens rea
requirements for that aspect of the crime. Consequently, if D's
drunkenness prevents him from realizing that V is not consenting, D's
defense of “I thought she was consenting” will fail, if a sober
defendant would have realized V's lack of consent. [88]
b. Voluntary manslaughter:
Similarly, D will generally not be allowed to introduce evidence of his
intoxication in an attempt to get a murder charge reduced to voluntary
manslaughter. This reduction is available only where D, acting in the heat
of passion, acts under provocation that would have been enough to cause an
ordinary person to lose control. But the assumption is that the ordinary
man is sober, so D's drunkenness does not help him. [ 87]
Example: D, after getting drunk
in a bar, believes that V is attacking him with a deadly weapon. An
ordinary sober man would have realized that V was merely holding his car
keys. D shoots V in an honest attempt to save his own life, and now seeks
a reduction from murder to voluntary manslaughter. Because the defense of
self-defense is not available when D's belief in the need for that defense
is reckless, D's drunkenness will not help him -- the act of voluntarily
getting drunk itself constitutes recklessness.
B. Involuntary intoxication: In the
rare case where D can show that his intoxication was “involuntary,” D is
much more likely to have a valid defense. [89 - 91]
1. Mistake as to nature of
substance: For instance, if D intentionally ingests a substance, but
mistakenly believes that it is not intoxicating, he may have two related
defenses: (1) a sort of “temporary insanity” defense, due to his
temporary lack of mental capacity; and (2) a defense that the intoxication
negated an element of the offense, even if the element was one for which
recklessness will suffice. [90]
Example: Assume the facts of the
above example, except that D's intoxication is involuntary because his
friend gave him LSD-laced punch. Now, D will probably win with his
self-defense claims, since he did not act recklessly in getting drunk, and a
reasonable person in his “unintentionally impaired” situation might have
made the same mistake.
C. Alcoholism and narcotics
addiction: Defendants who are chronic alcoholics or narcotics addicts
sometimes try to use their condition as a defense. [91 - 92]
1. Rejected: But courts almost
always reject any defense based upon these diseases. For instance, D might
argue that because he was an alcoholic, his intoxication was
“involuntary,” and he should therefore be subject to the more liberal
standards for “involuntary” as opposed to “voluntary”
self-intoxication described above. But almost all courts would reject the
“involuntary” defense for alcoholics and addicts. [91]
2. Crimes to gain funds: Similarly,
many Ds commit crimes to gain funds to support their addictions. Arguments
by such Ds that they lack free will or self-control, and should thus be
acquitted, are even more certain to be rejected by the courts. [91]
Chapter 4
JUSTIFICATION AND EXCUSE
I. GENERAL PRINCIPLES
A. Justification and excuse
generally: The twin doctrines of “justification” and “excuse” allow D
to escape conviction even if the prosecution proves all elements of the case.
There is no important distinction between those defenses referred to as
“justification” and those referred to as “excuses.” Here is a list of
the main justifications/excuses: [98]
B. Effect of mistake: The effect of a
mistake of fact by D on these defenses has changed over time: [98 - 99]
2. Modern view: But the modern
trend, as exemplified by the MPC, is to hold that so long as D genuinely
believes (even if unreasonably) that the facts are such that the defense is
merited, the defense will stand. (There is an exception if D is charged with
an act that may be committed “recklessly” or “negligently” -- here,
he loses the defense if the mistake was “reckless” or “negligent.”)
[99]
II. DURESS
A. General nature: D is said to have
committed a crime under “duress” if he performed the crime because of a
threat of, or use of, force by a third person sufficiently strong that D's
will was overborne. The term applies to force placed upon D's mind, not his
body. [100]
Example: X forces D to rob Y, by
threatening D with immediate death if he does not. D will be able to raise the
defense of duress.
C. Model Penal Code test: Under the
MPC, the defense is available where the threat to D was sufficiently great
that “a person of reasonable firmness in [D's] situation would have been
unable to resist.” MPC §2.09(1). [100]
D. Not available for homicide:
Traditionally, the defense of duress is not available if D is charged with
homicide, i.e., the intentional killing of another. [100 - 101]
Example: D is a member of a gang run
by X. X and the other gang members tell D that if D does not kill V, an
innocent witness to one of the group's crimes, they will kill D immediately. D
reasonably and honestly believes this threat. D kills V. Few if any courts
will allow D to assert the defense of duress on these facts, because he is
charged with the intentional killing of another. (The result probably would
not change even if D had originally been coerced into joining the gang.)
2. Felony-murder: Also, duress is
accepted as a defense to a charge of felony-murder. (Example: D is coerced
into driving X to a robbery site. During the robbery, X intentionally kills
V, a witness, to stop V from calling the police. Although in most states D
would ordinarily be liable for felony-murder, most states would allow him to
raise the defense of duress here.) [101]
E. Imminence of threatened harm: D
must be threatened with imminent or immediate harm, in most courts. Thus the
threat of future harm is not sufficient. But modern courts are more willing to
relax this requirement. [101]
Example: D witnesses X kill V. X
phones D to say that if D testifies against X at X's murder trial, X will kill
D after the trial. D lies on the stand to avoid implicating X. D is then
charged with perjury. Traditionally, most courts would not allow D to raise
the defense of duress, since the threatened harm was not imminent. But a
modern court, and the Model Penal Code, might not impose this requirement of
immediacy.
F. Threat directed at person other
than defendant: Traditionally, most courts have required that the threatened
harm be directed at the defendant. [101]
1. Modern view: But modern courts,
and the MPC, are more liberal. Many courts now recognize the defense where
the threat is made against a member of D's family. The MPC imposes no
requirement at all about who must be threatened (but remember that under the
MPC the test is whether a person of “reasonable firmness” would be
coerced, and this may be hard to prove if D is coerced by the threat of harm
to a complete stranger). [102]
G. Defendant subjects self to danger:
Nearly all courts deny the defense to a D who has voluntarily placed himself
in a situation where there is a substantial probability that he will be
subjected to duress.
Example: D voluntarily joins an
organized crime group known to have the policy of omerta, or death to anyone
who informs on the gang. D is called to the witness stand, and lies to protect
other gang members. D will not be able to raise the defense of duress, since
he voluntarily or at least recklessly placed himself in a position where he
was likely to be subjected to duress. [102]
H. Guilt of coercer: Even though the
person subjected to duress may have a valid defense on that ground, this will
not absolve the person who did the coercing. [102]
Example: A forces B to rob V, by
threatening to kill B if he does not. Even though B probably has a duress
defense to a robbery charge, A will be guilty of robbery, on an accomplice
theory.
III. NECESSITY
A. Generally: The defense of
“necessity” may be raised when D has been compelled to commit a criminal
act, not by coercion from another human being, but by non-human events. The
essence of the defense is that D has chosen the lesser of two evils. [103 -
106]
Example: D needs to get his seriously
ill wife to the hospital. He therefore violates the speed limit. Assuming that
there is no available alternative, such as an ambulance, D may claim the
defense of necessity, since the traffic violations were a lesser evil than
letting his wife get sicker or die.
B. Requirements for defense: The
principal requirements which D must meet for the necessity defense are: [104]
C. Homicide: Courts have
traditionally been very reluctant to permit the necessity defense where D is
charged with an intentional killing. [105 - 106]
1. Model Penal Code view: The MPC
does not rule out the necessity defense even in intentional homicide cases.
But under the MPC, one may not sacrifice one life to save another, since the
Code requires the choice of the lesser of two evils, not merely the equal of
two evils, and all lives are presumed to be of equal value. But if a life
can be sacrificed to save two or more lives, the Code would allow the
defense. (Example: D, a mountain climber, is roped to V, who has fallen over
a cliff. If the only alternative is that both climbers will die, D may cut
the rope even if this will inevitably cause V's death.) [106]
D. Economic necessity not sufficient:
The harm that confronts D may be of a non-bodily nature, such as damage to his
property. But courts do not accept the defense of “economic necessity.”
(Example: D, an unemployed worker, may not steal food and then claim the
defense of necessity. But if he is actually about to starve to death, then the
defense may be allowed.) [106]
E. Civil disobedience: The necessity
defense is almost always rejected in cases of “civil disobedience.” [106]
Example: To protest U.S. military
assistance to El Salvador, the Ds trespass in their local IRS office, splash
blood on the walls, and do other criminal acts to draw attention to why U.S.
policy is bad. Held, the Ds' necessity defense is invalid, because there were
lawful ways of attempting to bring about changed government policies. [U.S. v. Schoon]
IV. SELF-DEFENSE
A. Self-defense generally: There is a
general right to defend oneself against the use of unlawful force. When
successfully asserted, the defense is a complete one, leading to acquittal.
[107]
4. Aggressor: D must not have been
the aggressor, unless: (1) he was a non-deadly aggressor confronted with the
unexpected use of deadly force; or (2) he withdrew after his initial
aggression, and the other party continued to attack; and [107]
C. Requirement of “unlawful
force”: Self-defense applies only where D is resisting force that is
unlawful. [107 - 108]
a. Other party has privilege:
Thus if the other party, even though he is using force, is entitled to do
so, the force is not unlawful, and D may not use force to defend against
it. For instance, a property owner who is using non-deadly force to defend
his property against attempted theft is not using “unlawful” force.
[107]
Example: D tries to pick V's
pocket. V, not a trained or dangerous fistfighter, hits D lightly with his
fist. V has a privilege to use reasonable non-deadly force to defend his
property, so V is not using “unlawful” force, and D therefore has no
right to use any force in self-defense.
b. Other party uses excessive
force: However, if the other party is entitled to use some degree of
force, but uses more than is lawfully allowed, the excess will probably be
treated as unlawful, and D may resist it by using force himself. [107]
Example: On the facts of the
above example, suppose that V pulls out a gun and aims it at D and starts
to pull the trigger, even though V realizes that D is unarmed and not
dangerous. D may probably tackle V and knock away the gun, because V has
gone beyond the scope of the privilege to use reasonable force to defend
property.
c. Reasonable mistake by D: If D
makes a reasonable mistake about the unlawful status of the force being
used against her, she will nonetheless be protected. (In general, the
defense of self-defense is not voided by a reasonable mistake.) But in
most states, D will lose the defense if her mistaken belief that the
opposing force was unlawful was unreasonable. See the further discussion
of mistake in self-defense below. [108 - 109]
Example 2: D, not a
particularly capable fistfighter, swings his fist at V's stomach,
intending to immobilize V. V unexpectedly suffers a ruptured spleen, and
dies. D will not be deemed to have used deadly force, since the force
was neither intended nor likely to cause death or serious bodily harm.
c. Effect of mistake: As with
other sorts of mistakes, if D is reasonably mistaken in the belief that he
is threatened with serious bodily harm, he will not lose the right to
reply with deadly force. [109]
Example 2: D is stranded in his
broken-down car in the middle of a neighborhood he does not know well. V
sees D defenseless, and says, “I'm gonna go get my friends and we're gonna
come back and strip the tires off your car.” Under the MPC, D may use
non-violent force to prevent V from getting his friends, because the threat
is that unlawful force will be used “on the present occasion,” even
though the force is not completely imminent.
2. Withdrawal by aggressor: One
consequence of the requirement that the danger be imminent is that if the
aggressor withdraws from the conflict, the victim loses his right to use
force, at least where the withdrawal should reasonably be interpreted as
indicating that the danger is over. (But if the assailant seems to be
getting reinforcements, that's not a “withdrawal,” and the victim can
keep using force.)
Example: V and D are friends. They
get into a verbal dispute, and V takes a swing at D. D starts to swing back.
V stops swinging and says, “Wait a minute, we've always been friends,
let's stop fighting.” D (who has no reason to believe that V's offer to
stop the fight is phony) continues to beat V up. D will not be able to use
the defense of self-defense if he is charged with battery occurring after
V's offer to stop -- once V withdrew from the conflict, the occasion
requiring self-defense was over.
F. Aggressor may not claim
self-defense: If D is the initial aggressor -- that is, one who strikes the
first blow or otherwise precipitates the conflict -- he may ordinarily not
claim self-defense. [110 - 111]
Example: D starts a fight in a bar
with V, by brandishing a knife at V. V, using his own knife, tries to cut D's
knife-wielding hand. D hits V in the face with his other hand, injuring him. D
cannot claim self-defense, because he precipitated the conflict by brandishing
the knife.
1. Aggression without actual force:
D can be treated as an aggressor, and thus lose the right of self-defense,
even if D did not actually strike the first blow. It is enough if D did an
unlawful (i.e., tortious or criminal) act which “provoked” the physical
conflict. [110]
a. Non-deadly force met with
deadly force: First, if D provokes the exchange but uses no actual force
or only non-deadly force, and the other party responds with deadly force,
D may then defend himself (even with deadly force, if necessary). [111]
Example: D attacks V with his
fists. V defends by knocking D down, then starting to smash D's head
against the wall, so that D is in danger of being killed or badly hurt. D
manages to pull a knife, and kills X. Probably D is entitled to a claim of
self-defense. V, by meeting non-deadly force with deadly force, was acting
unlawfully, and D will be permitted to save his life. (All of this assumes
that D did not have the duty and opportunity to retreat, a duty which he
might have in some states under some circumstances.)
b. Withdrawal: Second, if D
withdraws from the conflict, and the other party (V) initiates a second
conflict, D may use non-deadly force (and even deadly force if he is
threatened with death or serious bodily harm). This is true even if D
started the initial conflict with the use of deadly force. All of this is
so because once D (the initial aggressor) withdraws, the conflict is over,
so V's use of force becomes unlawful force that D can defend against.
[111]
Example: In a bar, D attacks V
with his fists, hits him several times, and knocks him down. D leaves the
bar and gets into his car, intending to drive away. V, after getting up,
follows D outside, and attacks D with his fists, just as D is getting to
the car. D swings back, hitting and injuring V. D will be entitled to
claim self-defense, because he withdrew from the conflict, and V was in
effect starting a new conflict in which V was really the aggressor.
G. Retreat: Some states (but not yet
a majority) require that if D could safely retreat, he must do so rather than
use deadly force. [112 - 113]
Example: V attacks D with
non-deadly force. D could withdraw from the encounter with complete safety,
by getting into his car and driving away. D instead stands his ground and
fights back with his fists, with which he is not especially proficient. In
all states, even those with a general “duty to retreat,” D is
privileged, because no retreat is ever required before the use of non-deadly
force.
2. Retreat only required where it
can be safely done: The retreat rule, in states requiring it, only applies
where D could retreat with complete safety to himself and others. Also, if D
reasonably but mistakenly believes that retreat cannot be safely done, he
will be protected. [112]
Example: D invites V to D's house,
and the two parties get into a dispute. V attacks D with a knife. D could
easily go into a bedroom which can be locked from the inside; while there,
he could readily call the police. Instead, D grabs a knife -- the only
reasonably available means of combating V, given D's inferior martial arts
skills -- and seriously wounds V. Even in states imposing a general duty of
retreat, D is exempt from the duty here, since the attack is taking place in
his own dwelling.
b. Assailant also resident: Also,
some courts hold that the dwelling exception to the retreat requirement
does not apply where the assailant is also a resident of the dwelling. But
other courts, probably representing the more modern view, do not remove
the exception in this situation. [113]
Example: H and W are married. H
attacks W at home. W could easily retreat to a lockable bedroom, but
instead uses deadly force (though no more than reasonably necessary) to
rebut the attack. Of the states requiring a duty to retreat, most would
give W an exemption because she is in her dwelling, but a few would impose
the duty of retreat even here because H is also a resident of the
dwelling.
H. Effect of mistake: The effect of a
mistake by D concerning the need for self-defense will depend largely on
whether the mistake is “reasonable.” Observe that there are various kinds
of mistakes that D might make concerning the need for self-defense: (1) a
mistaken belief that he is about to be attacked; (2) a mistake in belief that
the force used against him is unlawful; (3) a mistaken belief that only deadly
force will suffice to repel the threat; or (4) a mistaken belief that retreat
could not be accomplished safely. [113 - 115]
Example: While D is walking down
the street one evening, V says, “Your money or your life,” and points
what appears to be a gun at D. In fact, the “gun” is merely V's finger
poking through V's jacket. A reasonable person in D's position would be
likely to believe that there was a real gun. D also reasonably believes that
V may shoot D even if D gives up the property, because this has happened in
the neighborhood on several recent occasions. D pulls his own gun and shoots
V to death. Later evidence shows that V, a career mugger, would never have
dreamt of actually doing physical harm to a victim. Because D's mistakes
(about the existence of a gun, and about whether it would be used against
him) were “reasonable,” D is entitled to claim self-defense despite the
mistakes.
Example: D travels on a New York
City subway while carrying an unlicensed loaded pistol. Four youths approach
him, and one states, “Give me $5.” D pulls out the gun and shoots at
each of the four, one of whom is sitting on a bench and apparently posing no
imminent threat to D at the time. D later admits that he did not think the
youths had a gun, but that he had a fear, based on prior times when he was
mugged, that he might be maimed as a result of this encounter.
Held, D's claim of self-defense is
valid only if he “reasonably believed” that one of the victims was about
to use deadly physical force or about to commit one of certain violent
crimes upon him. This imposes an objective standard, by which D's conduct
must be that of a reasonable person in D's situation. [People v. Goetz, 497 N.E.2d
41 (N.Y. 1986)]
a. MPC/minority view: A minority
of courts, and the Model Penal Code, hold that even an unreasonable (but
genuine) mistake as to the need for self-defense will protect D. This is,
in a sense, the more “modern” view. (But if the crime is one that can
be committed by a “reckless” or “negligent” state of mind, even
under the MPC D's reckless or negligent mistake as to the need for
self-defense will not absolve him.) [115]
Example: In People v. Goetz, supra, D was allowed
to put on evidence that he was previously mugged, thus contributing to
his belief that danger to him was likely in the present encounter.
c. Intoxication: If the cause of
D's unreasonable mistake as to the need for self-defense is his
intoxication, all courts agree that the intoxication does not excuse the
mistake, and D will not be entitled to a claim of self-defense. [115]
Example: D gets drunk in a bar.
He mistakenly believes that V is about to shoot him. He instead draws
first, and shoots V to death. Had D been sober, he would have realized
that V was not about to attack him. All courts agree that because D's
mistake was caused by his intoxication, he loses the claim of
self-defense.
I. Battered women and self-defense:
Where a woman kills her spouse because she believes this is the only way she
can protect herself against ongoing battering by him, courts normally do not
change the generally-applicable rules of self-defense. [115 - 118]
1. Standard for
“reasonableness”: In a battered-woman case, the courts try not to allow
too much subjectivity into the determination of whether the woman has acted
reasonably. Most courts make the test, What would a reasonable woman do in
the defendant's situation, taking into account the prior history of abuse,
but not taking into account the particular psychology of the woman herself
(e.g., that she is unusually depressed, or aggressive, or otherwise
different)? [117]
2. Imminence of danger: Nearly all
courts continue to require in battered-woman cases, as in other cases, that
self-defense be used only where the danger is imminent. For instance, courts
have not modified the traditional requirement of imminent danger to cover
situations where the woman's counter-strike does not come during a physical
confrontation. Thus D would probably be convicted of murder for killing her
abusing husband, V, in any of the following situations:
V, after abusing D, has
gone to sleep, and D shoots him in the head while he sleeps;
D waits for V to return
home, and kills him immediately, before any kind of argument has arisen;
and
(But if the absence of
confrontation is merely a momentary lull in the attack -- e.g., V's back is
temporarily turned, but D reasonably believes that the attack will resume
any moment -- then the requirement of imminence is typically found to be
satisfied.) [117 - 118]
3. Battered child: Essentially the
same rules apply where a battered child kills the abusive parent or
step-parent, typically the father. Thus many courts allow psychologists to
testify about a “battered child's syndrome.” But courts apply the
imminence requirement in the case of killings by children, just as in the
case of killings by the wife. [118]
J. Resisting arrest: A person's right
to use force to resist an unlawful arrest is much more limited than his right
to use force to resist other kinds of unlawful attack. [118]
2. Non-deadly force: A substantial
minority of states now bar even the use of non-deadly force against an
unlawful arrest. The MPC, for instance, refuses to allow the use of force to
resist an unlawful arrest, if D knows that the person doing the arresting is
a police officer. MPC §3.04(2)(a)(i). [119]
Example: Officer comes to D's house
to arrest D for a felony committed a long time ago, as to which the police
have long suspected D. Officer does not have a warrant. D knows that Officer
is a police officer, but D also knows that constitutionally, a warrant is
required for entering a suspect's house to arrest him unless there are
exigent circumstances. Although D thus knows that the arrest is unlawful, D
may not use even non-deadly force -- such as punching or kicking the officer
-- to resist arrest, under minority/MPC view.
3. Excessive force: Nearly all
states allow the use of non-deadly force to resist an arrest made with
excessive force, or in any situation where D reasonably believes that he
will be injured. (But even here, deadly force may not be used.) [119]
Example: In a Rodney King-like
scenario, D is arrested properly, then kicked and beaten with truncheons for
several minutes, while he does not resist. Nearly all states would allow D
to punch or kick the arresting officer and to run away, in order to escape
the blows. But D could not pull out a knife and stab the arresting officer,
even in this extreme situation.
K. Injury to third persons: If while
D is using force to protect himself, he injures a bystander, his criminal
liability with respect to this injury will be measured by the same standards
as if it was the assailant who was injured. [119]
1. D not reckless or negligent:
Thus if D's conduct was not reckless or negligent with respect to the
bystander, he will not be liable, assuming that self-defense as to the
assailant was proper. [119]
2. Recklessness or negligence:
Conversely, if D is reckless or negligent with respect to the risk of
injuring a bystander, D may not claim self-defense if the charge is one that
requires only recklessness or negligence (as the case may be). [120]
Example: X, wielding a knife,
attacks D in a crowded bar. D pulls out what he knows to be a very powerful
gun, and shoots at X. The bullet misses X and kills Y, a bystander. Even if,
as seems likely, D had a general right to use deadly force in his own
defense in this situation, a jury could find that D was reckless as to the
risk of killing a bystander. If the jury so concluded, D would then be
guilty of voluntary manslaughter, because his mental state with respect to Y
-- recklessness -- suffices for manslaughter.
L. “Imperfect” self-defense: D
may be entitled to a claim of “imperfect” self-defense, sufficient to
reduce his crime from murder to voluntary manslaughter, if D killed in
self-defense but failed to satisfy one of the requirements for acquittal by
reason of self-defense. [120]
1. Unreasonable mistake: Thus if D
makes an unreasonable mistake as to the need for force, or as to the
unlawfulness of the other party's force, most states give him the claim of
imperfect self-defense. [120]
2. Initial aggressor: Similarly, if
D was the initial aggressor, and thus lost the right to claim true
self-defense, he can still use imperfect self-defense to get his crime
reduced to manslaughter. [120]
Example: X insults D. D pulls a
knife and advances towards X. X pulls a gun and is about to shoot D. With
his spare hand, D pulls a gun and shoots X to death. Because D was the
aggressor -- and he was the first to use physical violence rather than mere
words -- he does not have a “full” claim of self-defense. However, he
met all the requirements for use of deadly force except that he not have
been the aggressor, so he'll probably be entitled to have the charge reduced
from murder to voluntary manslaughter.
3. Model Penal Code view: The MPC
similarly says that an unreasonable belief in the need for deadly force will
give rise to manslaughter if D was reckless in his mistake. (If D's
unreasonable belief was merely negligent, under the MPC he cannot be charged
with anything higher than criminally negligent homicide.) [120]
M. Burden of proof: Nearly all states
make a claim of self-defense an affirmative defense, i.e., one which must be
raised, in the first instance, by D. Many states also place the burden of
persuasion on D, requiring him to prove by a preponderance of the evidence
that all the requirements for the defense are met. It is constitutional for a
state to put this burden of persuasion upon the defendant. [Martin v. Ohio, 480 U.S. 228
(1987)] [120]
V. DEFENSE OF OTHERS
A. Right to defend others in general:
A person may use force to defend another in roughly the same circumstances in
which he would be justified in using force in his own defense. [121]
B. Relation between defendant and
aided person: At common law, a person was permitted to defend only his
relatives. [121]
1. Modern rule: Today, however,
most courts and statutes permit one to use force to defend anyone, even a
total stranger, from threat of harm from another. [121]
C. Requirements: D must generally
meet the following requirements in order to have a claim of defense of others:
[121]
D. Retreat: Most courts hold that D
may not use deadly force if he has reason to believe that the person being
aided could retreat with safety. Thus the MPC requires that D at least “try
to cause” the person being aided to retreat if retreat with safety is
possible (although D may then use deadly force if his attempt at causing
retreat fails). [121]
E. Mistake as to who is aggressor:
Courts are split about the effect of D's mistake concerning who was really the
aggressor. [122 - 122]
1. Traditional view: The
traditional view, called the “alter ego” rule, is that D “stands in
the shoes” of the person he aids. Under this view, if the person aided
would not have had the right to use that degree of force in his own defense,
D's claim fails. [122]
Example: D observes two middle-aged
men beating and struggling with an 18-year-old youth; D reasonably concludes
that these two are unlawfully attacking the youth. D hits X, one of the
older men, in an attempt to get him off the youth; he breaks X's jaw. It
turns out that X and the other older man were plainclothes police officers
trying to make a lawful arrest of the youth for an attempted mugging. Under
the traditional “alter ego” view, since the youth did not have the
privilege to hit back to prevent a lawful arrest, D did not have that
privilege to do so for the youth's benefit.
2. Modern view: But the modern view
is that so long as D's belief that unlawful force is being used against the
aidee is reasonable, D may assert a claim of defense of others even if his
evaluation turns out to have been wrong. Thus the MPC gives the right based
on “the circumstances as the actor believes them to be....” (Example: On
the facts of the above example, the modern/MPC view would permit D to use
the claim of defense of others.) [122]
VI. DEFENSE OF PROPERTY
A. Generally: A person has a limited
right to use force to defend his or her property against a wrongful taking.
[123]
2. Reasonable degree: The degree of
force used must not be more than appears reasonably necessary to prevent the
taking. For instance, if one in D's position should believe that a request
to desist would be sufficient, force may not be used. [123]
Example of proper use of non-deadly
force: D sees X attempting to break into D's car, parked on the street. At
least if D has no reason to believe that words alone will dissuade X, D may
punch X, spray mace at him, or otherwise use non-deadly force to stop the
break-in.
3. Subsequent use of deadly force:
If D begins by using a reasonable degree of non-deadly force, and the
wrongdoer responds with a personal attack, then the rules governing
self-defense come into play. It may then become permissible for D to use
deadly force to protect himself. [123]
B. Deadly force: In general, one may
not use deadly force to defend personal property or real estate. [123 - 124]
a. Modern view requires violent
felony: Under the modern view, deadly force may be used only where the
intrusion appears to pose a danger of a violent felony. Under this view, a
homeowner may not shoot a suspected burglar, unless the owner believes the
burglar to be armed or dangerous to the safety of the inhabitants. [123]
C. Mechanical devices: A property
owner may ordinarily use mechanical devices to protect his property. [124 -
125]
1. Non-deadly devices: A device
that is non-deadly (i.e., one that is not likely or intended to cause death
or serious bodily harm) may be used whenever it is reasonable to do so. Thus
a property owner may put barbed wire or a spiked fence (but not an
electrical fence) around his property. (Under the MPC, the owner must give a
warning to intruders about the device unless it is one that is
“customarily used for such a purpose.”) [124]
Example: D, a homeowner, sets up
a spring gun attached to the door. The gun shoots X, who turns out to be
an armed and dangerous burglar. Under the traditional view, D would not be
guilty of anything, since he would have had the right to use deadly force
against the burglar personally.
D. Recapture of chattel and re-entry
on land: A person has a privilege to use reasonable force to re-take his
personal or real property. [125]
1. Personal property: Where
personal property has been taken, all courts agree that D may use reasonable
non-deadly force to recapture it, provided that he does so immediately
following the taking. [125]
a. Interval: But if a substantial
period of time has elapsed since the taking, courts are split. The
modern/MPC view is that D may use force to retake his property at any
time, provided that the owner believes that the other has no “claim of
right” to possess the object. (Example: D's bicycle is stolen, and he
sees X riding down the street on it several days later. If D reasonably
believes he recognizes X as being the thief, he can use reasonable force
to take back the bicycle. But if he sees that X is not the thief, and
believes that X may have bought it from the thief, D cannot use reasonable
force because X would be acting under a “claim of right to possession”
of the bike, even though X does not have title.) [125]
2. Re-entry on real estate:
Similarly, under the modern view, D may use force to re-enter his real
estate, even if there has been a lapse of time, if the non-owner has no
claim of right to possession and it would be a hardship for the owner to
wait to get a court order. [125]
VII. LAW ENFORCEMENT (ARREST;
PREVENTION OF ESCAPE AND CRIME)
A. General privilege: A person
engaged in law enforcement has a general privilege to violate the law when it
is reasonable to do so. [125]
Example: D, a police officer, is
chasing a fleeing convict. D may drive his car through a stop light, or 20
m.p.h. above the speed limit, provided that a reasonable officer in D's
position would believe that this was necessary to recapture the escapee.
B. Arrest: A law enforcement officer
is privileged to use reasonable force in effecting an arrest. However, this
privilege exists only where the arrest being made is a lawful one. [126 - 129]
a. Felony: At common law, a
police officer may make an arrest for a felony if: (1) it was committed in
the officer's presence; or (2) it was committed outside the officer's
presence, but the officer has reasonable cause to believe that it was
committed, and by the person to be arrested. [126]
i. Warrant: If the misdemeanor
occurred in the officer's presence, no warrant is required. But at
common law, if the misdemeanor occurred outside of the officer's
presence, then a warrant is required (though this rule has often been
changed by statute).
2. Arrest resisted: If an officer
who is attempting to make a lawful arrest meets resistance, he may use
reasonable force to protect himself. In general, the rules applicable to
self-defense apply here. [126]
Example: If the police are
chasing a garden-variety speeder, they may not shoot at him or at his car.
If they shoot at the tires and cause a fatal crash, they will be liable
for manslaughter, since shooting a gun in the direction of a person, even
without intent to hit him, is generally considered to be the use of deadly
force.
b. Non-dangerous felony: Where
the suspect is fleeing an arrest for a non-dangerous felony, the modern,
and Supreme Court, view is that the police may not use deadly force to
catch the suspect. [127 - 128]
Example: Where an officer is
chasing an escaping burglar whom the officer has no reason to believe is
armed, the officer may not shoot the burglar in the back. This is true
even if the burglar ignores a command to stop and raise his hands. [Tennessee v. Garner, 471
U.S. 1 (1985)]
c. Dangerous
felony: If the felony or the felon is a “dangerous” one, the arresting
officer may use deadly force if that is the only way that the arrest can
be made. The issue is whether the suspect poses a threat of serious physical harm, either to the
officer or to others. [128]
Example: The typical car thief or
burglar is not “dangerous,” and thus cannot be stopped with deadly
force. But the typical armed bank robbery suspect, and perhaps the typical
rapist, is probably “dangerous” and thus may be stopped with deadly
force.
Example: If it turns out that no
dangerous felony was actually committed, or that the suspect was not the one
who committed it, the citizen will be criminally liable for death or injury
to the suspect.
a. More extreme view: Some
states, and the MPC, go further: they do not allow private citizens to use
deadly force at all to make a citizen's arrest, even if the suspect really
has committed a dangerous felony.
b. Escape of non-deadly felon:
Virtually all courts agree that a private citizen, like a police officer,
may not use deadly force to stop a fleeing felon if the felon poses no
immediate threat to the citizen or to others. That is, the rationale of
Tennessee v. Garner (see supra) presumably applies to attempted arrests by
private citizens just as to attempted arrests by police officers. (Of
course, this rule would be invoked only where the court rejects - as most
courts do - the MPC's blanket rule that the arresting citizen may never
use deadly force, even to arrest a felon who is dangerous.) [129]
C. Prevention of escape: An officer
may use reasonable force to prevent the escape of a suspect who has already
been arrested. The above rules apply in this situation as well. [129]
D. Crime prevention: Similarly,
officers may use force to prevent a crime from taking place, or from being
completed. [129]
VIII. MAINTAINING AUTHORITY
A. Right to maintain authority
generally: Parents of minor children, school teachers, and other persons who
have a duty of supervision, have a limited right to use force to discharge
their duties. [130]
B. Parents of minor: Parents of a
minor child may use a reasonable degree of force to guard the child's welfare.
[130]
Example: A parent who hits or spanks
his child will not be guilty of battery, provided that the purpose is to
promote the welfare of the child, including preventing or punishing
misconduct. However, the parent loses the privilege if the degree of force is
unreasonable under the circumstances.
IX. CONSENT
A. Effect of consent by victim:
Generally, the fact that the victim of a crime has consented does not bar
criminal liability. [131 - 131]
Example: Suppose V, who is terminally
ill, consents to have D perform a mercy killing on V. This consent does not
protect D from murder charges.
However, there are two major
exceptions to this rule that consent does not bar criminal liability:
Example: Common-law rape is defined
to include the element of lack of consent. Therefore, if V consents, there
is automatically no crime, no matter how culpable D's mental state.
2. Consent as negating of harm:
Second, for some crimes, in some courts, the fact that V has consented
prevents D's conduct from constituting the harm from arising that the law is
trying to prevent. [131]
Example: D and V agree to a
lawfully-sanctioned boxing match. D strikes V repeatedly, trying to injure
V, knowing that V is already hurt. D will not be liable for battery,
attempted murder, murder, or any other crime. See MPC §2.11(1).
B. Incapacity to consent: Even where
the crime is one as to which consent can be a defense, consent will not be
found where V is too young, mentally defective, intoxicated, or for other
reasons unable to give a meaningful assent. [132]
1. Fraud: Similarly, if the consent
was obtained by fraud, it will generally not be valid. However, the fraud
will negate the consent only where it goes to the essence of the harmful
activity. [132]
C. Contributory negligence of V: The
fact that V may have been contributorily negligent will not, by itself, be a
defense to any crime. [132]
Example: D and V agree to drag race.
D's car slams into V's, killing him. If D is prosecuted for criminally
negligent homicide or voluntary manslaughter, V's consent will not be a
defense, though it might give D a chance to show that V's negligence, not his
own, was the sole proximate cause of the accident.
D. Guilt of V: The fact that V is
himself engaged in the same or a different illegal activity will not generally
prevent the person who takes advantage of him from being criminally liable.
(Example: D and V agree to an illegal boxing match, during which V is killed.
V's equal culpability will not be a defense for D.) [132]
E. Forgiveness or settlement: The
fact that V forgives the injury, is unwilling to prosecute, or settles a civil
suit against D, will not absolve D from liability. The crime is considered to
be against the people, not against V as an individual. [132]
X. ENTRAPMENT
A. Entrapment generally: The defense
of entrapment exists where a law enforcement official, or someone cooperating
with him, has induced D to commit the crime. [133 - 134]
B. Two tests for entrapment: There
are two distinct tests used by courts for whether there has been entrapment:
[133 - 134]
1. “Predisposition” test: The
majority test, and the one used in the federal system, is that entrapment
exists where: (1) the government originates the crime and induces its
commission; and (2) D is an innocent person, i.e., one who is not
predisposed to committing this sort of crime. This is the so-called
“predisposition” test. [133 - 134]
Example: X, an undercover narcotics
operative, offers to sell V heroin for V's own use. If the offer originated
entirely with X, and V had never used or sought heroin, V would have a good
chance at an entrapment defense, on the theory that he was an “innocent”
person who was not predisposed to committing this sort of crime. But if the
evidence showed that V had frequently purchased heroin from other sources,
then V would not be entrapped under the “predisposition” test, even if
the transaction between X and V was entirely at X's instigation.
2. “Police conduct” rule: A
minority of courts apply the “police conduct” rule. Under this rule,
entrapment exists where the government agents originate the crime, and their
participation is such as is likely to induce unpredisposed persons to commit
the crime, regardless of whether D himself is predisposed. This test is
usually easier for the defendant to meet. [134]
Example: X, a government agent,
suspects that D is a confidence man who swindles people out of their
property. X pretends to go along with D's scheme, and gives D money which D
appropriates. D is not guilty of obtaining money by false pretenses, because
one of the elements of that crime is reliance on the part of the victim, and
X was not really fooled.
Chapter 5
ATTEMPT
I. INTRODUCTION
A. Attempt generally: All states, in
general, punish certain unsuccessful attempts to commit crimes. [146 - 147]
1. General attempt statutes: Nearly
all prosecutions for attempt occur under general attempt statutes. That is,
the typical criminal code does not specifically make it a crime to attempt
murder, to attempt robbery, etc. Instead, a separate statutory section makes
it a crime to attempt to commit any of the substantive crimes enumerated
elsewhere in the code. [147]
B. Two requirements: For most attempt
statutes, there are two principal requirements, corresponding to the mens rea
and the actus reus: [148]
1. Mental state: First, D must have
had a mental state which would have been enough to satisfy the mens rea
requirement of the substantive crime itself. Typically, D will intend to
commit the crime. But if a mental state less than intent (e.g.,
recklessness) suffices for the substantive crime, there may be instances
where this same less-than-intent mental state will suffice for attempted
commission of that crime. This is discussed further below. [147]
2. Act requirement: Second, D must
be shown to have committed some overt act in furtherance of his plan of
criminality. A leading modern view, that of the MPC, is that the act must
constitute “a substantial step” in a course of conduct planned to
culminate in the commission of the crime, but only if the substantial step
is “strongly corroborative” of D's criminal purpose. MPC §5.01(1)(c).
[147]
C. Broader liability: Modern courts
impose attempt liability more broadly than older cases did. Two major
illustrations of this broader trend are: [147 - 147]
II. MENTAL STATE
A. Intent usually required:
Generally, D will be liable for an attempt only if he intended to do acts
which, if they had been carried out, would have resulted in the commission of
that crime. [148 - 149]
Example: D hits V in the jaw,
intending only to slightly injure V. Instead, V suffers serious injuries due
to hemophilia, but recovers. D will not be liable for attempted murder, even
though he came close to killing V; this is because D is liable for attempted
murder only if he had the mental state needed for actual murder (in this case,
either an intent to kill or an intent to do serious bodily injury).
Example: On the facts of the above
example, it is not enough that D attempted a crime, namely battery against
V. What must be shown by the prosecution is that D had the mental state
needed for the very crime D is charged with attempting - murder.
a. “Substantially certain”
results: But if it is shown that D knew that a certain result was
“substantially certain” to occur, then this may be enough to meet the
intent requirement, even though D did not desire that result to occur.
[148]
Example: D gets into his car
knowing that it has bad brakes, but recklessly decides to take a chance. D
almost runs into V because he can't stop in time, but V dives out of the
way. D will not be guilty of attempted involuntary manslaughter, because
crimes defined in terms of recklessly or negligently bringing about a
certain result cannot give rise to attempt liability.
Example: A federal statute makes it
a federal crime to kill an FBI agent. Case law demonstrates that for the
completed crime, it is enough that the defendant was reckless or even
negligent with respect to the victim's identity. D tries to shoot V (an FBI
agent) to death, but his shot misses; D recklessly disregarded the chance
that V might be an FBI agent. Probably D may be found guilty of attempted
killing of an FBI agent.
III. THE ACT -- ATTEMPT VS. “MERE
PREPARATION”
A. The problem: All courts agree that
D cannot be convicted of attempt merely for thinking evil thoughts, or
plotting in his mind to commit a crime. Thus all courts agree that D must have
committed some “overt act” in furtherance of his plan of criminality. But
courts disagree about what sort of act will suffice. In general, modern courts
hold that D must come much less close to success than older courts required.
[150]
B. Various approaches: There are two
main approaches which courts use to decide whether D's act was sufficient, the
“proximity” approach and the “equivocality” approach. [150 - 156]
1. The “proximity” approach:
Most courts have based their decision on how close D came to completing the
offense. This is the “proximity” approach. In general, older decisions
required D to come very close to success - thus older decisions frequently
require D to achieve a “dangerous proximity to success.” But modern
courts tend to require merely that D take a “substantial step” towards
carrying out his criminal plan. [150 - 153]
2. The “equivocality” approach:
Other courts follow a completely different approach, concentrating not on
how close D came to success, but on whether D's conduct unequivocally
manifested his criminal intent. Under this “equivocality” approach, if
D's conduct could indicate either a non-criminal intent or a criminal one,
it is not sufficient - but if it does unequivocally manifest criminal
intent, it suffices even though completion of the plan is many steps away.
[153]
a. Confession excluded: Under the
“equivocality” test, any confession by D, made either to police or to
other persons, is usually not to be considered in determining whether D's
acts were unequivocally criminal in intent. [153]
3. MPC's “substantial step”
test: The MPC incorporates aspects of both the “proximity” test and the
“equivocality” test. But the incorporated aspects of each test are
relatively unstringent in the MPC approach, so that almost any conduct
meeting any of the variations of either of these tests would be sufficient
under the Code. Under the MPC, conduct meets the act requirement if, under
the circumstances as D believes them to be: (1) there occurs “an act or
omission constituting a substantial step in a course of conduct planned to
culminate in [D's] commission of the crime”; and (2) the act is
“strongly corroborative” of the actor's criminal purpose. [154 - 156]
v. Possession of materials to
be employed in the commission of the crime, if the materials are
specially designed for such unlawful use or can serve no lawful purpose
of D under the circumstances. (Example: D is stopped on the street at
night and is found to be in possession of lock-picking tools. Probably
he can be convicted of attempted burglary.) [156]
IV. IMPOSSIBILITY
A. Nature of “impossibility”
defense: The “impossibility” defense is raised where D has done everything
in his power to accomplish the result he desires, but, due to external
circumstances, no substantive crime has been committed. Most variants of the
defense are unsuccessful today, but it is still important to be able to
recognize situations where the defense might plausibly be raised. Here are
some examples: [157]
Example 1: D, a would-be pickpocket,
reaches into V's pocket, but discovers that it is empty.
Example 2: D, a would-be rapist,
achieves penetration of V, but discovers that V is a corpse, not a living
woman.
Example 3: D buys a substance from V,
thinking that it is heroin. In fact, the substance is sugar, because V is an
undercover narcotics operative.
Note: In these three examples, a
modern court would almost certainly hold that D is liable for attempt (to
commit the substantive crime of larceny, rape and narcotics possession,
respectively).
B. Factual impossibility: A claim of
factual impossibility arises out of D's mistake concerning an issue of fact. D
in effect says, “I made a mistake of fact. Had the facts been as I believed
them to be, there would have been a crime. But under the true facts, my
attempt to commit a crime could not possibly have succeeded.” [157 - 158]
1. Not accepted: The defense of
factual impossibility is rejected by all modern courts. Impossibility is no
defense in those cases where, had the facts been as D believed them to be,
there would have been a crime. Thus D is guilty of an attempt (and his
“factual impossibility” defense will fail) in all of the following
examples: [157]
Example 1: D points his gun at A,
and pulls the trigger. The gun does not fire because, unbeknownst to D, it
is not loaded.
C. “True legal” impossibility: A
different sort of defense arises where D is mistaken about how an offense is
defined. That is, D engages in conduct which he believes is forbidden by a
statute, but D has misunderstood the meaning of the statute. Here, D will be
acquitted - the defense of “true legal” impossibility is a successful one.
You can recognize the situation giving rise to the “true legal”
impossibility defense by looking for situations where, even had the facts been
as D supposed them to be, no crime would have been committed. [158]
Example 1: D obtains a check for
$2.50. He alters the numerals in the upper right hand corner, changing them to
“12.50.” But D does not change the written-out portion of the check, which
remains “two and 50/100 dollars.” Because the crime of forgery is defined
as the material alteration of an instrument, and the numerals are considered
an immaterial part of a check (the amount written out in words controls), D
will be acquitted of attempted forgery. [Wilson v. State]
Example 2: D is
questioned by X, a police officer, during a criminal investigation. D lies,
while believing that lying to the police constitutes perjury. D cannot be
convicted of attempted perjury, because the act he was performing (and in fact
the act he thought he was performing) is simply not a violation of the perjury
statute.
Note: The defense of
“true legal impossibility” is the flip side of the rule that “mistake of
law is no excuse.” Just as D cannot defend on the grounds that he did not
know that his acts were prohibited, so D will be acquitted where he commits an
act that he thinks is forbidden but that is not forbidden.
D. Mistake of fact
governing legal relationship: There is a third category, involving a mistake
of fact that bears upon legal relationships. In this situation, D understands
what the statute prohibits, but mistakenly believes that the facts bring his
situation within the statute. Here, D will be convicted of attempt. This is because had the facts been as D
supposed them to be, his conduct would have been a crime. [158 - 161]
Example: D buys goods which he
believes are stolen. In fact, the goods are police “bait,” and D has been
tricked by the seller, an undercover police officer, into thinking that they
are stolen. D is guilty of attempted possession of stolen property.
Example: D has intercourse with X,
who he believes is in an unconscious drunken stupor. In fact, X is already
dead at the time of intercourse. D is guilty of attempted rape, since had the
facts been as he supposed them to be, his conduct would have been a crime. [U.S. v. Thomas, 13 U.S.C.M.A.
278 (1962)]
Note: All three
categories - “factual” impossibility, “true legal impossibility” and
“factual mistake bearing on legal relationship” - can be explained with
one principle. Ask, “Would D's conduct have been criminal had the facts been
as D supposed them to be?” For the “true legal impossibility” situation,
the answer is “no.” For the other two situations, the answer is “yes,”
so D is guilty of attempt in just the latter two situations.
E. “Inherent”
impossibility (ineptness and superstition): If D's act is, to a reasonable
observer, so farfetched that it had no probability of success, D may be able
to successfully assert the defense of “inherent impossibility.” [161]
1. Courts split: Courts are split
about whether to recognize a defense of “inherent impossibility.” The
MPC authorizes a conviction in such cases, but also allows conviction of a
lesser grade or degree, or in extreme circumstances even a dismissal, if the
conduct charged “is so inherently unlikely to result or culminate in a
commission of a crime that neither such conduct nor the actor presents a
public danger....” [162]
Example: D, a Haitian witch doctor,
immigrates to the U.S. and continues practicing voodoo. A police officer
sees D sticking pins in a doll representing V, in an attempt to kill V. D is
charged with attempted murder of V. A court might conclude that D's conduct
was so inherently unlikely to kill V (and that D himself was so unlikely to
commit the substantive crime of murder or to make a more “serious”
attempt to kill V) that D should be acquitted, or convicted of a lesser
crime such as attempted battery.
V. RENUNCIATION
A. Defense generally accepted: Where
D is charged with an attempted crime, most courts accept the defense of
renunciation. To establish this defense, D must show that he voluntarily
abandoned his attempt before completion of the substantive crime. [162 - 163]
Example: D decides to shoot V when V
comes out of V's house. D carries a loaded gun, and waits in the bushes
outside V's house. Five minutes before he expects V to come out, D decides
that he doesn't really want to kill V at all. D returns home, and is arrested
and charged with attempted murder. All courts would acquit D in this
circumstance, because he voluntarily abandoned his plan before completing it
(even though the abandonment came after D took sufficient overt acts that he
could have been arrested for an attempt right before the renunciation).
B. Voluntariness: All courts
accepting the defense of abandonment require that the abandonment be
“voluntary.” [164 - 165]
1. Threat of imminent apprehension:
Thus if D, at the last moment, learns facts causing him to believe that he
will be caught if he goes through with his plan, the abandonment will
generally not be deemed voluntary. [164]
Example: On the facts of the above
example, just before V is scheduled to come out of his house, D spots a
police officer on the sidewalk near D. D's abandonment has been motivated by
the fear of imminent apprehension, so his abandonment will not be deemed
voluntary, and D can be convicted of attempted murder.
2. Generalized fear: On the other
hand, if D abandons because of a generalized fear of apprehension, not
linked to any particular threat or event, his abandonment will probably be
deemed voluntary. [164]
Example: On the facts of the above
two examples, suppose that D's decision to abandon is motivated not by the
appearance of a police officer, but by D's sudden thought, “If I get
caught, I'll go to prison for life.” D's abandonment will probably be
treated as voluntary, and will be a bar to his prosecution for attempt.
Example: D decides to rob V, a
pedestrian, on a secluded street at night. D says, “Your money or your
life,” and brandishes a knife at V. V pulls out his own switchblade and
says, “If you come any closer, I'll carve you up.” D turns around and
walks away. D's abandonment will almost certainly be found to be
involuntary, because it was motivated by the victim's conduct. Therefore,
D can be convicted of attempted robbery.
VI. ATTEMPT-LIKE CRIMES
A. Problem generally: Some
substantive crimes punish incomplete or “inchoate” behavior. If D intends
to commit acts which, if completed, would constitute one of these inchoate
crimes, D may raise the defense that he cannot be convicted of “an attempt
to commit a crime which is itself an attempt.” [165 - 166]
Example: D, who is very weak,
throws a rock at V, a police officer, but his arm is not strong enough to
get the rock even close to V. One type of “assault” defined by statute
in the jurisdiction is “an attempt to commit battery by one having present
ability to do so.” D is charged with “attempted assault.” A court
might hold that D should not be convicted, because the crime of assault (of
the attempted-battery type) is intended to cover near-battery, and the crime
here is effectively near-near-battery. But most courts would probably reject
this defense and would convict D on these facts.
VII. MECHANICS OF TRIAL; PUNISHMENT
A. Relation between charge and
conviction: Complications arise where D is: (1) charged with a completed
substantive crime, but shown at trial to be guilty of at most an attempt; or
(2) charged with attempt, but shown at trial to have committed the underlying
substantive crime. [166]
1. Substantive crime charged,
attempt proved: If D is charged with a completed crime but shown to have
committed only an attempt, the courts agree that D may be convicted of
attempt. The attempt is said to be a “lesser included offense.” [167]
2. Attempt charged, completed crime
proved: Conversely, if D is charged with an attempt and is shown at trial to
have committed the underlying complete crime, D may normally be convicted of
attempt. (But the attempt statute may be drafted so as to make failure an
element of attempt; if so, D will escape liability.) [167]
Chapter 6
CONSPIRACY
I. INTRODUCTION
A. Definition of “conspiracy”:
The common-law crime of conspiracy is defined as an agreement between two or
more persons to do either an unlawful act or a lawful act by unlawful means.
At common law, the prosecution must show the following: [174]
B. Procedural advantages: The
prosecution gets a number of procedural advantages in a conspiracy case. [175]
The two most important are:
2. Admission of hearsay: Statements
made by any member of the conspiracy can generally be admitted against all,
without constraint from the hearsay rule. Any previous incriminating
statement by any member of the conspiracy, if made in furtherance of the
conspiracy, may be introduced into evidence against all of the conspirators.
See FRE 801(d)(2)(E). [175]
Example: D1, D2 and
D3 are charged with conspiracy to rob a bank. D1, the mastermind, tries to
recruit X, an arms supplier, into the conspiracy, by telling X that D3 is
also part of the conspiracy. X refuses to join the conspiracy. At the Ds'
trial for conspiracy, X testifies as to D1's statements about D3's
participation. This testimony will be admitted against D3 for the
substantive purpose of showing that D3 was part of the conspiracy. This will
be true even though the statement by D1 is hearsay as to D3.
a. Hearsay considered in
determining admissibility: In the federal system, and in many states, the
judge may determine the admissibility of hearsay without respect to the
rules of evidence. This means that the incriminating statement by a member
of the alleged conspiracy may itself be considered in determining whether
the conspiracy has been sufficiently documented that the hearsay should be
admissible against the defendant. [175]
II. THE AGREEMENT
A. “Meeting of the minds” not
required: The essence of a conspiracy is an agreement for the joint pursuit of
unlawful ends. However, no true “meeting of the minds” is necessary -- all
that is needed is that the parties communicate to each other in some way their
intention to pursue a joint objective. [175 - 176]
Example: A is in the process of
mugging V on the street, when B comes along. B pins V to the ground, while A
takes his wallet. A conspiracy to commit robbery could be found on these
facts, even though there was no spoken communication between A and B.
Example: V, a politician, is riding
in a motorcade down a crowded city street. A and B both simultaneously shoot
at V. The fact that both people shot simultaneously would be strong, and
admissible, evidence that A and B had agreed to jointly attempt to kill V,
and would thus support prosecution of the two for conspiracy to commit
murder.
B. Aiding and abetting: Suppose that
A and B conspire to commit a crime (let's call the crime “X”). C then
“aids and abets” A and B in the commission of crime X, but never reaches
explicit agreement with A and B that he is helping them. It is clear that C
will be liable for X if A and B actually commit X. But if A and B never commit
X, courts are split about whether C, as a mere aider and abettor, is also
liable for conspiracy to commit X. The MPC holds that a person does not become
a co-conspirator merely by aiding and abetting the conspirators, if he himself
does not reach agreement with them. [176]
Example: D knows that A and B plan to
kill X. D, without making any agreement with A and B, prevents a telegram of
warning from reaching X. If X is thus unable to flee, and A and B kill X, it
is clear that D is liable for the substantive crime of murder, since he aided
and abetted A and B in carrying out the murder. But if X escapes, so there is
no substantive crime of murder to be charged, can D be convicted of conspiracy
to commit murder? Courts are split. The MPC would acquit D on these facts,
since under the MPC an aider and abettor is not liable for the conspiracy if
he did not reach any agreement with the conspirators.
C. Parties don't agree to commit
object crime: Although there must be an agreement, it is not necessary that
each conspirator agree to commit the substantive object crime(s). A particular
D can be a conspirator even though he agreed to help only in the planning
stages. (Example: D1, D2 and D3 work together to commit a bank robbery. D3's
only participation is to agree to obtain the getaway car, not to participate
in the bank robbery itself. D3 is still guilty of conspiracy to commit bank
robbery.) [177]
D. Feigned agreement: Courts disagree
about the proper result where one of the parties to a “conspiracy” is
merely feigning his agreement. The problem typically arises where one of the
parties is secretly an undercover agent. [177]
Example: A and B agree that they will
rob a bank. B is secretly an undercover agent, and never has any intention of
committing the robbery. In fact, B makes sure that the FBI is present at the
bank, and A is arrested when he and B show up. Courts disagree about whether
the requisite “agreement” between A and B took place, and thus about
whether A can be prosecuted for conspiracy to commit bank robbery.
1. Traditional view that there is
no conspiracy: The traditional, common-law view is that there is no
agreement, and therefore no conspiracy. Thus on the facts of the above
example, A could not be charged with conspiracy to commit bank robbery. This
traditional view is sometimes called the “bilateral” view, in the sense
that the agreement must be a bilateral one if either party is to be bound.
[177]
a. Model Penal Code agrees: The
Model Penal Code agrees with the modern view. The Code follows a
“unilateral” approach to conspiracy -- a given individual is liable
for conspiracy if he “agrees with another person or persons,” whether
or not the other person is really part of the plan. Thus under the MPC, A
in the above example has clearly agreed to rob the bank (even though B has
not truly agreed), and A can therefore be prosecuted for conspiracy. [178]
III. MENS REA
A. Intent to commit object crime:
Normally, the conspirators must be shown to have agreed to commit a crime. It
is then universally held that each of the conspirators must be shown to have
had at least the mental state required for the object crime. [178 - 182]
Example: A and B are caught trying to
break into a dwelling at night. The prosecution shows only that A and B agreed
to attempt to break and enter the dwelling, and does not show anything about
what A and B intended to do once they were inside. A and B cannot be convicted
of conspiracy to commit burglary, because there has been no showing that they
had the intent necessary for the substantive crime of burglary, i.e., it has
not been shown that they had the intent to commit any felony once they got
inside.
1. Must have intent to achieve
objective: Also, where the substantive crime is defined in terms of causing
a harmful result, for conspiracy to commit that crime the conspirators must
be shown to have intended to bring about that result. This is true even
though the intent is not necessary for conviction of the substantive crime.
[179]
Example: A and B plan to blow up a
building by exploding a bomb. They know there are people in the building who
are highly likely to be killed. If the bomb goes off and kills X, A and B
are guilty of murder even though they did not intend to kill X (because one
form of murder is the “depraved heart” or “reckless indifference to
the value of human life” kind). But A and B are not guilty of conspiracy
to murder X, because they did not have an affirmative intent to bring about
X's death.
3. Attendant circumstances: But
where the substantive crime contains some elements relating to the attendant
circumstances surrounding the crime, and strict liability applies to those
attendant circumstances, then two people can be convicted of conspiracy even
though they had no knowledge or intent regarding the surrounding
circumstances. [179 - 180]
Example: It is a federal crime to
assault a federal officer engaged in the performance of his duties. Cases
on this crime hold that the defendant need not be shown to have been aware
that his victim was a federal officer. D1 and D2 orally agree to attack V,
thinking he is a rival drug dealer. In fact, V is a federal officer. D1
and D2 can be convicted of conspiracy to assault a federal officer,
because V's status as such was merely an attendant circumstance, as to
which intent need not be shown. [U.S. v. Feola, 420 U.S.
671 (1975)]
B. Supplying of goods and services:
The Ds must be shown to have intended to further a criminal objective. It is
not generally enough that a particular D merely knew that his acts might tend
to enable others to pursue criminal ends. The issue arises most often where D
is charged with conspiracy because he supplied goods or services to others who
committed or planned to commit a substantive crime. [180 - 181]
1. Mere knowledge not sufficient:
It is not enough for the prosecution to show that D supplied goods or
services with knowledge that his supplies might enable others to pursue a
criminal objective. Instead, the supplier must be shown to have desired to
further the criminal objective. On the other hand, this desire or intent can
be shown by circumstantial evidence. [180 - 181]
Example: D and S agree that if S
supplies D with equipment to make an illegal still, D will pay S 10% of
the profits S makes from his illegal liquor operations. S will be held to
have had such a stake in the venture that the jury may infer that he
desired to bring about the illegal act of operating his still.
b. Controlled commodities: The
supplier is more likely to be found to be a participant in a conspiracy if
the substance he sold was a governmentally controlled one that could only
have been used for illegal purposes. (Example: S supplies the Ds with
horse-racing information of benefit only to bookmakers, in a state where
bookmaking is illegal.) [181]
IV. THE CONSPIRATORIAL OBJECTIVE
A. Non-criminal objective:
Traditionally, and in England, the Ds could be convicted of conspiracy upon
proof that they intended to commit acts that were “immoral” or “contrary
to the public interest.” In other words, the fact that the act or ultimate
object was not explicitly criminal was not an automatic defense. [182 - 183]
Example: D1 collaborates with
various prostitutes, with the intention of publishing a directory of
prostitutes. Under the traditional/English view, D1 and the prostitutes can
be convicted of conspiracy to “corrupt public morals,” even though
actual publication of the directory would not itself have been a crime. But
under the modern American view, there could be no conspiracy here, since no
act was intended which would have been criminal. [Shaw v. Dir. Pub. Prosec.,
2 W.L.R. 897 (Eng. 1961)]
B. The “overt act” requirement:
At common law, the crime of conspiracy is complete as soon as the agreement
has been made. But about half the states have statutes requiring, in addition,
that some overt act in furtherance of the conspiracy must also be committed.
[183]
2. Kind of act required: The overt
act, where required, may be any act which is taken in furtherance of the
conspiracy. It does not have to be an act that is criminal in itself. Thus
acts of mere preparation will be sufficient. (Example: If the conspiracy is
to make moonshine liquor, purchase of sugar from a grocery store would meet
the overt act requirement.) [183]
3. Act of one attributable to all:
Even in states requiring an overt act, it is not necessary that each D
charged with the conspiracy be shown to have committed an overt act.
Instead, if the overt act requirement applies, the overt act of a single
person will be attributable to all. [183]
C. Impossibility: The same rules
concerning “impossibility” apply in conspiracy as in attempt. [184 - 184]
For instance, the defense of “factual impossibility” is always rejected.
(Example: D1 and D2 agree to pick the pocket of a certain victim. The pocket
turns out to be empty. The Ds are liable for conspiracy to commit larceny.)
[184]
D. Substantive liability for crimes
of other conspirators: The most frequently-tested aspect of conspiracy law
relates to a member's liability for the substantive crimes committed by other
members of the conspiracy. This subject is complicated, and requires close
analysis. [184 - 185]
1. Aiding and abetting: Normally,
each conspirator “aids and abets” the others in furtherance of the aims
of the conspiracy. Where this is the case, a D who has aided and abetted one
of the others in accomplishing a particular substantive crime will be liable
for that substantive crime -- this is not a result having anything to do
with conspiracy law, but is instead merely a product of the general rules
about accomplice liability (discussed infra). [184 - 185]
Example: A and B
agree to a scheme whereby A will steal a car, pick B up in it, and wait
outside the First National Bank while B goes in and robs the teller. A
steals the car, picks up B, and delivers B to the bank. Before B can even
rob the teller, A is arrested out on the street. B robs the teller anyway. A
is clearly liable for the substantive crime of bank robbery, because he has
“aided and abetted” B in carrying out this crime. It is also true that A
and B are guilty of conspiracy to commit bank robbery, but this fact is not
necessary to a finding that A is liable for B's substantive crime -- aiding
and abetting is all that is required for A to be liable for bank robbery.
2. Substantive
liability without “aiding and abetting”: The more difficult question
arises where A and B conspire to commit crime X, and B commits additional
crimes “in furtherance” of the conspiracy, but without the direct
assistance of A. Does A, by his mere membership in the conspiracy, become
liable for these additional crimes by B in furtherance of the conspiracy?
[184 - 185]
a. Traditional view: The
traditional “common law” view is that each member of a conspiracy, by
virtue of his membership alone, is likely for reasonably foreseeable
crimes committed by the others in “furtherance” of the conspiracy.
[184]
Example: Same basic fact pattern
as prior example. Now, however, assume that A knows that B is carrying a
gun into the bank, and A also knows that B would rather shoot anyone
attempting to stop him than go to prison. However, A has done nothing to
help B get the gun, and has not encouraged B to use the gun. B goes into
the bank, and shoots V, a guard, while V is trying to capture B. V is
seriously wounded. Under the traditional view, if B is liable for assault
with a deadly weapon, A will be liable also, merely because he was a
member of a conspiracy, and the crime was committed by another member in
furtherance of the aims of the conspiracy (robbery with successful
escape).
b. Modern/MPC view: But modern
courts, and the MPC, are less likely to hold that mere membership in the
conspiracy, without anything more, automatically makes each member liable
for substantive crimes committed by any other member in furtherance of the
conspiracy. [185]
Example: Same facts as above
example. Assuming that A in no way encouraged or helped B to use his gun,
a modern court might not hold A substantively liable for the assault on V,
despite the fact that it was done in furtherance of the conspiracy.
V. SCOPE: MULTIPLE PARTIES
A. Not all parties know each other:
When not all parties know each other, you may have to decide whether there was
one large conspiracy or a series of smaller ones. [185]
B. “Wheel” conspiracies: In a
“wheel” or “circle” conspiracy, a “ring leader” participates with
each of the conspirators, but these conspirators deal only with the ring
leader, not with each other. [186 - 186]
1. “Community of interest”
test: In the “wheel” situation, there can either be a single large
conspiracy covering the entire wheel, or a series of smaller conspiracies,
each involving the “hub” (the ring leader) and a single spoke (an
individual who works with the ring leader). There will be a single
conspiracy only if two requirements are met: (1) each spoke knows that the
other spokes exist (though not necessarily the identity of each other
spoke); and (2) the various spokes have, and realize that they have, a
“community of interest.” [186 - 186]
C. “Chain” conspiracies: In a
“chain” conspiracy, there is a distribution chain of a commodity (usually
drugs). As with “wheel” conspiracies, the main determinant of whether
there is a single or multiple conspiracies is whether all the participants
have a “community of interest.” [187]
Example: A group of smugglers import
illegal drugs; they sell the drugs to middlemen, who distribute them to
retailers, who sell them to addicts. If all members of the conspiracy knew of
each other's existence, and regarded themselves as being engaged in a single
distribution venture, then a court might hold that there was a single
conspiracy. Otherwise, there might be merely individual conspiracies, one
involving smugglers and middlemen, another involving middlemen and retailers,
etc.
D. Party who comes late or leaves
early: Special problems arise as to a conspirator who enters the conspiracy
after it has begun, or leaves it before it is finished. [188]
Example: D is a fence who buys from
A and B, two jewelry thieves. D is clearly conspiring to receive stolen
property. But he will normally not be a conspirator to the original crime of
theft, unless he somehow involved himself in that venture, as by making the
request for particular items in advance.
Example: D agrees to help A and B
rob a bank; D is to procure the transportation, and to deliver it to A. D
steals a car and delivers it to A, then leaves the conspiracy. D is guilty
of conspiring to rob the bank even though he does nothing further, since the
bank robbery is part of the original agreement. But if A and B, totally
unbeknownst to D, decided after D left the conspiracy that they wished to
use the car to rob a grocery store, D would not be guilty of conspiracy to
rob the grocery store.
VI. DURATION OF THE CONSPIRACY
A. Why it matters: You may have to
determine the ending point of a conspiracy. Here are some issues on which the
ending point may make a difference: [188]
3. Statements by co-defendants:
Declarations of co-conspirators may be admissible against each other,
despite the hearsay rule, but only if those declarations were made in
furtherance of the conspiracy while it was still in progress. [188]
B. Abandonment: A conspiracy will
come to an end if it is abandoned by the participants. [189 - 191]
1. Abandoned by all: If all the
parties abandon the plan, this will be enough to end the conspiracy (and
thus, for instance, to start the statute of limitations running). [189]
a. No defense to conspiracy
charge: But abandonment does not serve as a defense to the conspiracy
charge itself. Under the common-law approach, the conspiracy is complete
as soon as the agreement is made. Therefore, abandonment is irrelevant.
[189]
Example: A and B, while in their
prison cell, decide to rob the first national bank the Tuesday after they
are released. Before they are even released, they decide not to go through
with the plan. However, X, to whom they previously confided their plans,
turns them into the authorities. A and B are liable for conspiracy to
commit bank robbery, even though they abandoned the plan -- their crime of
conspiracy was complete as soon as they made their agreement, and their
subsequent abandonment did not, at common law, change the result.
a. Procedural issues: Thus for
procedural purposes, D's withdrawal ends the conspiracy as to him. So long
as D has made an affirmative act bringing home the fact of his withdrawal
to his confederates, the conspiracy is over as to him, for purposes of:
(1) running of the statute of limitations; (2) inadmissibility of
declarations by other conspirators after he left; or (3) non-liability for
the substantive crimes committed by the others after his departure.
(Instead of notifying each of the other conspirators, the person
withdrawing can instead notify the police.) [189]
b. As defense to conspiracy
charge: But if D tries to show withdrawal as a substantive defense against
the conspiracy charge itself, he will fail: the common-law rule is that no
act of withdrawal, even thwarting the conspiracy by turning others into
the police, will be a defense. This comes from the principle that the
crime is complete once the agreement has been made. [189]
i. More liberal Model Penal
Code view: But the MPC relaxes the common-law rule a bit. The MPC allows
a limited defense of “renunciation of criminal purpose.” D can avoid
liability for the conspiracy itself if: (1) his renunciation was
voluntary; and (2) he thwarted the conspiracy, typically by informing
the police. (Good faith efforts by D to thwart the conspiracy, which
fail for reasons beyond D's control, such as police inefficiency, are
not enough, even under the liberal MPC view.) [190]
VII. PLURALITY
A. Significance of the plurality
requirement: A conspiracy necessarily involves two or more persons. This is
called the “plurality” requirement. [191]
B. Wharton's Rule: Under the
common-law Wharton's Rule, where a substantive offense is defined so as to
necessarily require more than one person, a prosecution for the substantive
offense must be brought, rather than a conspiracy prosecution. The classic
examples are adultery, incest, bigamy and dueling crimes. [191 - 193]
Example: Howard and Wanda are husband
and wife. Marsha is a single woman. Howard and Marsha agree to meet later one
night at a specified motel, to have sex. They are arrested before the
rendezvous can take place. Since the crime of adultery is defined so as to
require at least two people, Howard and Marsha cannot be convicted of
conspiracy to commit adultery, under the common law Wharton's Rule.
Example: Same facts as above
example. Now, however, assume that Steve, Howard's friend, has urged him to
have sex with Marsha, and has reserved the hotel room for them. Despite
Wharton's Rule, Howard, Marsha and Steve can all be prosecuted for
conspiracy, because there were more persons involved than merely the two
necessary direct parties to the substantive crime of adultery.
2. Sometimes only a presumption:
Modern courts, including the federal system, frequently hold that Wharton's
Rule is not an inflexible rule but merely a presumption about what the
legislature intended. Under courts following this approach, if the
legislative history behind the substantive crime is silent about whether the
legislature intended to bar conspiracy convictions, a conspiracy charge is
allowed. [192]
Example: A federal act makes it a
federal crime for five or more persons to conduct a gambling business
prohibited by state law. The five Ds are charged with conspiracy to violate
this federal act. Held, the legislative history behind the federal act shows
no congressional intent to merge conspiracy charges into the substantive
crime, so a conspiracy charge is valid here. [Iannelli v. U.S., 420 U.S.
770 (1975)]
a. No conviction for conspiracy
and substantive offense: However, the Code does provide that one may not
be convicted of both a substantive crime and a conspiracy to commit that
crime. (By contrast, most states allow this sort of “cumulative”
punishment scheme, as long as the situation is not the classic Wharton's
Rule scenario where only the parties logically necessary for the completed
crime have been charged.) [193]
C. Statutory purpose not to punish
one party: The court will not convict a party of conspiracy where it finds
that the legislature intended not to punish such a party for the substantive
crime. Typically, this situation arises where the legislature that defined the
substantive crime recognized that two parties were necessarily involved, but
chose to punish only one of those parties as being the “more guilty” one.
[193 - 193]
Example: Stewart and Barbara, who are
not married to each other, agree that Stewart will transport Barbara across
state lines, so that they can have sex. The federal Mann Act prohibits the
transportation of a woman across state lines for purposes of sexual
intercourse. Cases interpreting the Mann Act itself hold that the woman is an
innocent “victim” and thus does not violate the act merely by allowing
herself to be transported interstate. Stewart and Barbara are arrested before
they cross the state line, and are prosecuted for conspiracy to violate the
Mann Act.
Held, Barbara may not be convicted of
conspiracy, because the legislature did not intend to punish her for the
substantive crime that she is accused of conspiring to commit. (A modern court
would probably allow Stewart to be convicted, however.) [Gebardi v. U.S., 287 U.S. 112
(1932)]
1. Spouses: At common law, a
husband and wife cannot by themselves make up a conspiracy. But virtually
all modern courts have rejected this common law rule, so a conspiracy
composed solely of husband and wife is punishable. [194]
2. Corporations: There must at
least be two human members of any conspiracy. Thus although a corporation
can be punished as a conspirator, there can be no conspiracy when only one
corporation and one human being (e.g., an officer or stockholder of the
corporation) are implicated. [194]
E. Inconsistent disposition: Look out
for situations where one or more members of the alleged conspiracy are not
convicted -- does this prevent the conviction of the others? For now, let's
assume that there are only two purported members, A and B. [194 - 195]
1. Acquittal: Where A and B are
tried in the same proceeding, and A is acquitted, all courts agree that B
must also be acquitted. But if the two are tried in separate proceedings,
courts are split. Most courts today hold that A's acquittal does not require
B's release. [194]
Example: A and B are the only two
alleged conspirators. A is acquitted in his trial. B is then tried. B may
be convicted, because under the “unilateral” approach, we look only at
whether B conspired with anyone else, not whether “A and B conspired
together.”
2. One conspirator not tried: If A
is not brought to justice at all, this will not prevent conviction of B
(assuming that the prosecution shows, in B's trial, that both A and B
participated in the agreement). [195]
VIII. PUNISHMENT
A. Cumulative sentencing: May a
member of the conspiracy be convicted of both conspiracy to commit the crime
and the substantive crime itself? [195]
a. Some objectives not realized:
If, however, the conspiracy has a number of objectives, and less than all
are carried out, even under the MPC there can be a conviction of both
conspiracy and the carried-out crimes. [195]
Chapter 7
ACCOMPLICE LIABILITY AND
SOLICITATION
I. PARTIES TO CRIME
A. Modern nomenclature: Modern courts
and statutes dispense with common-law designations like “principal in the
first degree,” “accessory before the fact,” “accessory after the
fact,” etc. Instead, modern courts and statutes usually refer only to two
different types of criminal actors: “accomplices” and “principals.”
[205 - 206]
Example: As part of a bank robbery
plan, A steals a car, and drives B to the First National Bank. A remains in
the car acting as lookout. B goes inside and demands money, which he
receives and leaves the bank with. A drives the getaway car. Since B carried
out the physical act of robbery, he is a “principal” to bank robbery.
Since A merely assisted B, but did not carry out the physical act of bank
robbery, he is an “accomplice” to bank robbery.
3. Significance of distinction:
Relatively little turns today on the distinction between “accomplice”
and “principal.” The main significance of the distinction is that
generally, the accomplice may not be convicted unless the prosecution also
proves that the principal is guilty of the substantive crime in question.
The most important rule to remember in dealing with accomplices is that
generally, the accomplice is guilty of the substantive crimes he assisted or
encouraged. [206]
II. ACCOMPLICES -- THE ACT REQUIREMENT
A. Liability for aiding and abetting:
The key principle of accomplice liability is that one who aids, abets,
encourages or assists another to perform a crime, will himself be liable for
that crime. [206 - 207]
Example 1: Same facts as the above
bank-robbery example. A is guilty of bank robbery, even though he did not
himself use any violence, or even set foot inside the bank or touch the money.
Example 2: A and B have a common
enemy, V. A and B, in conversation, realize that they would both like V dead.
A encourages B to kill V, and supplies B with a rifle with which to do the
deed. B kills V with the rifle. A is guilty of murder -- he assisted and
encouraged another to commit murder, so he is himself guilty of murder.
1. Words alone may be enough:
Words, by themselves, may be enough to constitute the requisite link between
accomplice and principal -- if the words constituted encouragement and
approval of the crime, and thereby assisted commission of the crime, then
the speaker is liable even if he did not take any physical acts. [206]
2. Presence at crime scene not
required: One can be an accomplice even without ever being present at the
crime scene. That is, the requisite encouragement, assistance, etc., may all
take place before the actual occasion on which the crime takes place. [206]
3. Presence not sufficient:
Conversely, mere presence at the scene of the crime is not, by itself,
sufficient to render one an accomplice. The prosecution must also show that
D was at the crime scene for the purpose of approving and encouraging
commission of the offense. [206]
Example: A and B, who are good
friends, walk down a city street together. B decides to shoplift a ring from
a sidewalk vendor. A remains silent, when he could easily have dissuaded B.
A is not an accomplice to theft of the ring.
a. Duty to intervene: There are a
few situations, however, where D has an affirmative legal duty to
intervene. If he fails to exercise this duty, he may be an accomplice.
[207]
Example: Under general legal
principles, both parents have an affirmative duty to safeguard the welfare
of their child. Mother severely beats Child while Father remains silently
by. Father is probably an accomplice to battery or child abuse, because he
had an affirmative duty to protect Child and failed to carry out that
duty.
B. Aid not crucial: Suppose that D
gives assistance in furtherance of a crime, but the assistance turns out not
to have been necessary. In this situation, D is generally guilty -- as long as
D intended to aid the crime, and took acts or spoke words in furtherance of
this goal, the fact that the crime would probably have been carried out anyway
will be irrelevant. [207 - 208]
Example: A gives B a gun with which
to kill V, and encourages B to do so. B shoots at V, but misses. A is guilty
of attempted murder, just as B is.
a. Crime not attempted by the
principal: If, on the other hand, the principal does not even attempt the
crime, most courts will not hold D guilty of even the crime of attempt on
an accomplice theory. However, D is probably guilty of the crime of
“solicitation,” and a minority of courts might hold him guilty of
attempt. [208]
Example: A tries to persuade B to
murder V, and gives B a rifle with which to do so. B turns A into the
police, rather than trying to kill V. In most states, A is not liable for
attempted murder on an accomplice theory, but may be liable for criminal
solicitation. A few states, and the MPC, would hold D liable for attempted
murder on these facts.
C. Conspiracy as meeting the act
requirement: Some cases, especially older ones, hold that if D is found to
have been in a conspiracy with another, he is automatically liable for any
crimes committed by the other in furtherance of the conspiracy. (See supra) [208]
1. Insufficient under modern view:
However, the modern view, and the view of the MPC, is that the act of
joining a conspiracy is not, by itself, enough to make one an accomplice to
all crimes carried out by any conspirator in furtherance of the conspiracy.
But even in courts following this modern view, membership in the conspiracy
will be strong evidence that D gave the other conspirators the required
assistance or encouragement in the commission of the crimes that were the
object of the conspiracy. [209]
III. ACCOMPLICES -- MENTAL STATE
A. General rule: For D to have
accomplice liability for a crime, the prosecution must generally show the
following about D's mental state: (1) that D intentionally aided or encouraged
the other to commit the criminal act; and (2) that D had the mental state
necessary for the crime actually committed by the other. [209 - 212]
Example: D writes to X, “Your
wife is sleeping with V.” X, enraged, shoots V to death. D does not have
the requisite mental state for accomplice liability for murder or
manslaughter merely by virtue of intending to write the letter -- the
prosecution must also show that D intended to encourage X to kill V.
Example: D believes that X will
commit a burglary, and wants to help X do so. D procures a weapon for X, and
drives X to the crime scene. Unbeknownst to D, X really intends all along to
use the weapon to frighten V so that X can rape V; X carries out this
scheme. D is not an accomplice to rape, because he did not have the mens rea
-- that is, he did not intend to cause unconsented-to sexual intercourse.
The fact that D may have had the mens rea for burglary or robbery is
irrelevant to the rape charge, though D might be held liable for attempted
burglary or attempted robbery on these facts.
B. Knowledge, but not intent, as to
criminal result: The most important thing to watch out for regarding the
mental state for accomplice is the situation where D knows that his conduct
will encourage or assist another person in committing a crime, but D does not
intend or desire to bring about that criminal result. [210 - 211]
Example: X asks his friend D for a
ride to a particular address. X is dressed all in black, and D knows that X
has previously committed burglary. D does not desire that X commit a
burglary, but figures, “If I don't give X a ride, someone else will, so I
might as well stay on his good side.” D drives X to the site, and X
burgles the site. D is not guilty of burglary on an accomplice theory,
because mere knowledge of X's purpose is not enough -- D must be shown to
have intended or desired to help X commit the crime.)
C. Assistance with crime of
recklessness or negligence: If the underlying crime is not one that requires
intent, but merely recklessness or negligence, some courts hold D liable as an
accomplice upon a mere showing that D was reckless or negligent concerning the
risk that the principal would commit the crime. [211 - 212]
1. Lending car to drunk driver:
Thus if D lends his car to one that he knows to be drunk, and the driver
kills or wounds a pedestrian or other driver, some courts find D liable as
an accomplice to manslaughter or battery. On these facts, D has had the
mental state of recklessness (sufficient for involuntary manslaughter or
battery), so a court may -- but will not necessarily -- hold that D's lack
of intent to bring about the death or injury to another is irrelevant. [211]
a. Negligence-manslaughter:
Observe that in the above “lend car to drunk driver” scenario, D may
be liable for manslaughter even if accomplice theory is not used -- the
crime of manslaughter is generally committed when one recklessly brings
about the death of another, so D may, by entrusting his car to a known
drunk, be guilty of manslaughter as a principal. [212]
IV. ACCOMPLICES -- ADDITIONAL CRIMES BY
PRINCIPAL
A. “Natural and probable” results
that are not intended: A frequently-tested scenario involves a principal who
commits not only the offense that the accomplice has assisted or encouraged,
but other offenses as well. The accomplice will be liable for these additional
crimes if: (1) the additional offenses are the “natural and probable”
consequences of the conduct that D did intend to assist (even though D did not
intend these additional offenses); and (2) the principal committed the
additional crimes in furtherance of the original criminal objective that D was
trying to assist. [212 - 215]
Example: D1 and D2 agree to commit an
armed robbery of a convenience store owned by V. D1 personally abhors
violence. However, he knows that D2 is armed, and that D2 has been known to
shoot in the course of prior robberies. D1 urges D2 not to shoot no matter
what, but D2 refuses to make this promise. During the robbery, V attempts to
trip an alarm, and D2 shoots her to death. A court would probably hold that D1
is liable for murder on an accomplice theory, since the shooting was a
“natural and probable” consequence of armed robbery, and the shooting was
carried out to further the original criminal objective of getting away with
robbery.
On the other hand, if D2 forcibly
raped V instead of shooting her, and D1 had no reason to expect D2 to do this,
D1 would not be liable for rape on an accomplice theory. This is because the
rape was not the “natural and probable” consequence of the conduct
encouraged by D1, nor was it committed in furtherance of the original
objective of robbery.
2. MPC rejects extended liability:
The Model Penal Code rejects even the basic principle allowing an accomplice
to be held liable for “natural and probable” crimes beyond those which
he intended to aid or encourage. Under the MPC, only those crimes that D
intended to aid or encourage will be laid at his door. [214]
3. Felony-murder and
misdemeanor-manslaughter rules: Wherever the additional offense is a death,
the accomplice may end up being guilty not because of the “natural and
probable consequences” rule, but because of the specialized felony-murder
or misdemeanor-manslaughter rules. For instance, under the felony-murder
rule (discussed infra),
if in the course of certain dangerous felonies the felon kills another, even
accidentally, he is liable for murder. This can be combined with the general
principles of accomplice liability to make the accessory liable for an
unintended death. [214 - 215]
Example: D1 and D2
agree to commit an armed robbery together, with D2 carrying the only gun. D1
does not desire that anybody be shot. D2 points his gun at V and asks for
money; the gun accidentally goes off, killing V. D1 is probably guilty of
murder on these facts. However, this is not because V's death was a
“natural and probable consequence” of armed robbery.
Instead, it is
because under the felony-murder doctrine, even an accidental death that
directly stems from the commission of a dangerous felony such as armed
robbery will constitute murder. By felony-murder alone, D2 is thus guilty of
murder even though he did not intend to shoot, let alone kill, V. Then,
since D1 was D2's accomplice in the armed robbery, D1 is liable for armed
robbery. Since the killing occurred in the furtherance of the robbery by D1
(even though he was not the shooter), and since D1 had the mental state
required for felony-murder (intent to commit a dangerous felony), D1 is
liable for murder without any use of the “natural and probable
consequences” rule.
V. GUILT OF THE PRINCIPAL
A. Principal must be guilty:
Generally, the accomplice cannot be convicted unless the prosecution shows
that the person being aided or encouraged -- the principal -- is in fact
guilty of the underlying crime. [216 - 217]
1. Principal's conviction not
necessary: But it is not necessary that the principal be convicted.
(Example: A is charged with assisting B to commit a robbery. B is never
arrested or brought to trial. Instead, B gets immunity and turns state's
evidence against A. A can be convicted of being an accomplice to the robbery
upon proof that B committed the robbery, and that A helped B carry it out --
the fact that B is never charged or convicted is irrelevant.) [216]
2. Inconsistent verdicts: But if
the principal is actually acquitted, the accomplice must normally be
acquitted as well. This is clearly true if the principal is acquitted in the
same trial, and probably true even if the principal is acquitted in an
earlier trial. [People v. Taylor, 527 P.2d
622 (Cal. 1974)] [216]
VI. WITHDRAWAL BY THE ACCOMPLICE
A. Withdrawal as defense: One who has
given aid or encouragement prior to a crime may withdraw and thus avoid
accomplice liability. In other words, withdrawal is generally a defense to
accomplice liability (in contrast to the conspiracy situation, where it is
usually not a defense to the conspiracy charge itself, merely to substantive
crimes later committed in furtherance of the conspiracy). The withdrawal will
only be effective if D has undone the effects of his assistance or
encouragement. [218]
Example: X tells D that X wants to
rob a gas station at gun point, and that he needs a gun to do so. D supplies X
with a gun for this purpose. D then has second thoughts, and takes the gun
back from X, while also telling X, “I don't think this robbery is a good
idea.” X gets a different gun from someone else, and carries out the same
robbery of the same store. D is not guilty of being an accomplice to the
robbery, because he withdrew, in a way that undid the effect of his earlier
assistance and encouragement.
1. Effect of aid must be undone: It
is not enough that D has a subjective change of heart, and gives no further
assistance prior to the crime. He must, at the very least, make it clear to
the other party that he is repudiating his past aid or encouragement. [219]
2. Verbal withdrawal not always
enough: If D's aid has been only verbal, he may be able to withdraw merely
by stating to the “principal” that he now withdraws and disapproves of
the project. But if D's assistance has been more tangible, he probably has
to take affirmative action to undo his affects. [219]
Example: On the facts of the prior
example, where D supplies a gun to X, it probably would not be enough for D
to say, “I think the robbery is a bad idea,” while letting X keep the
gun -- D probably has to get the gun back.
Example: D encourages X to commit a
particular burglary at a specified time and place. X thinks better of it,
and leaves a message at the local police station alerting the police to the
place and time for the crime. He does not make any effort to talk X out of
the crime, however. Due to police inefficiency, the message gets lost, and X
carries out the crime. D's notice to the authorities will probably be held
to be enough to constitute an effective withdrawal, even though D was not
successful in actually thwarting the crime.
VII. VICTIMS AND OTHER EXCEPTIONS TO
ACCOMPLICE LIABILITY
A. Exceptions for certain classes:
There are certain classes of persons as to whom no accomplice liability will
be imposed: [220]
b. Kidnapping and extortion:
Similarly, a person who meets the demands of an extortionist, or a person
who pays a ransom to kidnappers to secure the release of a loved one, will
not be an accomplice to the extortion or kidnapping. [220]
2. Crime logically requiring second
person: Where a crime is defined so as to logically require participation by
a second person, as to whom no direct punishment has been authorized by the
legislature, that second person will not be liable as an accomplice. [220]
Examples: Since an abortion cannot
be performed without a pregnant woman, the pregnant woman will not be liable
as an accomplice to her own abortion, assuming that the legislature has not
specifically authorized punishment for the woman in this situation. The same
would be true of a customer who patronizes a prostitute, or one who
purchases illegal drugs -- if the legislature has not specifically punished
customers of prostitutes or purchasers of drugs, these will not be liable as
accomplices to prostitution/drug sales.
VIII. POST-CRIME ASSISTANCE
A. Accessory after the fact: One who
knowingly gives assistance to felon, for the purpose of helping him avoid
apprehension following his crime, is an accessory after the fact. Under modern
law, the accessory after the fact is not liable for the felony itself, as an
accomplice would be. Instead, he has committed a distinct crime based upon
obstruction of justice, and his punishment does not depend on the punishment
for the underlying felony. [221]
C. Misprision of felony: At common
law, one who simply fails to report a crime or known felon -- without
committing any affirmative acts to hinder the felon's arrest -- is guilty of
the separate crime of “misprision of felony.” However, almost no states
recognize this crime today. [221]
IX. SOLICITATION
A. Solicitation defined: The
common-law crime of solicitation occurs when one requests or encourages
another to perform a criminal act, regardless of whether the latter agrees.
[222]
Example: Wendy is unhappily married
to Herbert, and has been having an affair with Bart. Wendy says to Bart,
“Won't you please kill Herbert? If you do, we can live happily ever
after.” Bart does not respond either way, but tells the police what has
happened. The police arrest Wendy before Bart takes any action regarding
Herbert. On these facts, Wendy is guilty of solicitation -- she has
requested or encouraged another to perform a criminal act, and it does not
matter that the other has refused.
B. No overt act required: The crime
of solicitation is never construed so as to require an overt act -- as soon as
D makes his request or proposal, the crime is complete (as in the above
example). [222]
C. Communication not received: Courts
disagree about whether D can be convicted of solicitation where he attempts to
communicate his criminal proposal, but the proposal is never received. [223]
Example: On the facts of the above
example, Wendy sends a letter to Bart asking Bart to kill Herbert. The
letter is intercepted by police before Bart can get it. Courts are split as
to whether Wendy can be convicted of solicitation; the MPC would impose
liability here. (Even courts not following the MPC approach would probably
allow a conviction for “attempted solicitation” on these facts.) [223]
D. Renunciation: Some courts allow
the defense that the solicitor voluntarily renounced his crime. Thus the MPC
allows the defense of renunciation if D prevents the commission of the crime,
and does so voluntarily. [223]
E. Solicitation as an attempted
crime: If all D has done is to request or encourage another to commit a crime
(“bare” solicitation), this is not enough to make D guilty of an attempt
to commit the object crime. However, if D has gone further, by making
extensive preparations with or on behalf of the solicitee, or otherwise making
overt acts, this may be enough to cause him to be guilty of not only
solicitation but an attempt [223] at the crime (even if the solicitee himself
refuses to participate).
Chapter 8
HOMICIDE AND OTHER
CRIMES AGAINST THE PERSON
I. HOMICIDE -- INTRODUCTION
A. Different grades of homicide: Any
unlawful taking of the life of another falls within the generic class
“homicide.” The two principal kinds of homicide are murder and
manslaughter. [230]
1. Degrees of murder: In many
jurisdictions, murder is divided into first-degree and second-degree murder.
Generally, first-degree murder consists of murders committed “with
premeditation and deliberation,” and killings committed during the course
of certain felonies. [230]
2. Two kinds of manslaughter:
Similarly, manslaughter is usually divided into: (1) voluntary manslaughter
(in most cases, a killing occurring the “heat of passion”); and (2)
involuntary manslaughter (an unintentional killing committed recklessly,
grossly negligently, or during commission of an unlawful act.) [230]
3. Other statutory forms of
homicide: Additional forms of homicide exist by statute in some states. Many
states have created the crime of vehicular homicide (an unintentional death
caused by the driver of a motor vehicle). Similarly, some states, and the
MPC, have created the crime of “negligent homicide.” [230]
II. MURDER -- GENERALLY
A. Definition of “murder”: There
is no simple definition of “murder” that is sufficient to distinguish
killings that are murder from killings that are not. At the most general
level, murder is defined as the unlawful killing of another person. [230]
B. Taking of life: Murder exists only
where a life has been taken. Therefore, be ready to spot situations where
there is no murder because either: (1) the victim had not yet been born alive
when D acted, and was never born alive; or (2) the victim's life had ended
before D's act. [230 - 232]
1. Fetus: A fetus is not a human
being for homicide purposes, in most states. Thus if D commits an act which
kills the fetus, this does not fall within the general murder statute in
most states. [231 - 231]
Example: D shoots X, a pregnant
woman. The bullet goes into X's uterus and instantly kills V, a fetus which
has not yet started the birth process. In most states, D has not committed
garden-variety murder of V, though he may have committed the separate
statutory crime of feticide, defined in many states.
a. Fetus born alive: But if the
infant is born alive and then dies, D is guilty of murdering it even
though his acts took place before the birth. (Example: Same facts as in
the above example. Now, however, assume that the shooting causes X to go
into premature labor, V is born alive, and immediately thereafter V dies
of the bullet wound. D has murdered V.) [231]
2. End of life: Traditionally,
death has been deemed to occur only when the victim's heart has stopped
beating. The modern tendency, however, is to recognize “brain death” as
also being a type of death. [232]
Example: D, a physician, concludes
that V is “brain dead,” and thus removes V's heart to use it in an organ
transplant. Most courts today would probably hold that D has not murdered V,
because V was already dead even though her heart was still beating.
C. Elements of murder: Here are the
elements which the prosecution must prove to obtain a murder conviction: [232
- 233]
Example: D and V are known to be
getting along badly, and D has a motive -- financial gain -- for wanting V
dead. V is last seen alive while about to visit D's remote mountain cabin. V
is never seen again, and no body is ever found. V's wallet is found in the
cabin. Seven years have gone by without a trace of V. A jury could probably
reasonably conclude that V is now dead, and that D caused the death by
methods unknown.
3. Mens rea: D must be shown to
have had an appropriate mental state for murder. The required mental state
is sometimes called “malice aforethought,” but this is merely a term of
art, which can be satisfied by any of several mental states. In most
jurisdictions, any of the four following intents will suffice: [233]
Note on four types of murder:
Anytime D can be said to have killed V, you should go through all four
types of murder before concluding that no murder has occurred. In other
words, examine the possibility that D: (1) intended to kill V; (2)
intended to inflict serious bodily harm upon V; (3) knew V or someone else
had a substantial chance of dying, but with “reckless indifference” or
“depraved heart” ignored this risk; or (4) intended to commit some
dangerous felony, not itself a form of homicide (e.g., robbery, rape,
kidnapping, etc.) Only if D's intent did not fall within any of these
cases can you be confident that V's death does not constitute murder.
D. Intent-to-kill murder: The most
common state of mind that suffices for murder is the intent to kill. [233 -
234]
2. Substantial certainty of death:
The requisite intent also exists where D knows that death is substantially
certain to occur, but does not actively desire to bring about V's death.
(Example: D, a terrorist, puts a bomb onto an airliner. He does not desire
the death of any passengers, but knows that at least one death is almost
certain to occur. D has the state of mind needed for “intent to kill”
murder.) [233]
3. Ill-will unnecessary: The
requisite intent to kill may exist even where D does not bear any ill will
towards the victim. (Example: D's wife, V, is suffering from terminal
cancer, but still has at least several weeks to live. D feeds her poison
without telling her what this is, in order to spare her suffering. As a
strictly legal matter, D has the mental state required for “intent to
kill” murder, though a jury might well decide to convict only of
manslaughter.) [234]
5. Compare with voluntary
manslaughter: It does not automatically follow that because D intended to
kill and did kill, that D is guilty of murder. (For instance, most cases of
voluntary manslaughter -- generally, a killing occurring in a “heat of
passion” -- are ones where D intended to kill.) In a prosecution for
intent-to-kill murder, the mental state is an intent to kill not accompanied
by other redeeming or mitigating factors. [234]
E. Intent-to-do-serious-bodily-injury
murder: In most states, the mens rea requirement for murder is satisfied if D
intended not to kill, but to do serious bodily injury to V. [234 - 235]
Example: D is angry at V for reneging
on a debt. D beats V with brass knuckles, intending only to break V's nose and
jaw, and to knock out most of his teeth. In most states, D has the mental
state required for murder of the “intent to do serious bodily injury”
sort. Therefore, if V unexpectedly dies, D is guilty of murder in these
states.
1. Subjective standard: Most states
apply a subjective standard as to the risk of serious bodily harm -- D has
the requisite mental state only if he actually realized that there was a
high probability of serious harm (not necessarily death) to V, and the fact
that a “reasonable person” would have realized the danger is not
sufficient. [235]
2. “Serious bodily injury”
defined: Some courts hold that only conduct which is likely to be “life
threatening” suffices for “intent to commit serious bodily injury.”
Other courts take a broader view of what constitutes serious bodily harm.
However, all courts recognizing this form of murder hold that a mere intent
to commit some sort of bodily injury does not suffice. [235]
Example: D punches V in the face,
intending merely to knock V down. V strikes his head while falling, and
dies. Probably no court would hold that D is liable for “intent to do
serious bodily harm” murder on these facts, though he would be liable for
manslaughter under the misdemeanor-manslaughter rule.
3. Model Penal Code rejects: The
Model Penal Code does not recognize “intent to do serious bodily harm”
murder. The MPC regards the “reckless indifference to value of human
life” or “depraved heart” standard, discussed below, as being enough
to take care of cases where D willfully endangers the life or safety of
others and death results. [235]
F. “Reckless indifference to value
of human life” or “depraved heart” murder: Nearly all states hold D
liable if he causes a death, while acting with such great recklessness that he
can be said to have a “depraved heart” or an “extreme indifference to
the value of human life.” [235 - 236]
Example 3: D, trying to escape from
pursuing police, drives his car at 75 mph the wrong way down a one-way
residential street that has a 30 mph speed limit. D hits V, a pedestrian.
III. FELONY-MURDER
A. Generally: Under the felony-murder
rule, if D, while he is in the process of committing certain felonies, kills
another (even accidentally), the killing is murder. In other words, the intent
to commit any of certain felonies (unrelated to homicide) is sufficient to
meet the mens rea requirement for murder. [237]
Example: D, while carrying a loaded
gun, decides to rob V, a pedestrian. While D is pointing his gun at V and
demanding money, the gun accidentally goes off, and kills V. Even though D
never intended to kill V or even shoot at him, D is guilty of murder,
because the killing occurred while D was in the course of carrying out a
dangerous felony.
B. Dangerous felonies: Nearly all
courts and legislatures today restrict application of the felony-murder
doctrine to certain felonies. [237 - 238]
a. Two standards: Courts are
split about how to determine whether a felony is “inherently
dangerous.” Some courts judge dangerousness in the abstract (e.g., by
asking whether larceny is in general a dangerous crime), whereas others
evaluate the felony based on the facts of that particular case (so that
if, say, the particular larceny in question is committed in a very
dangerous manner, the felony is “inherently dangerous” even though
most other larcenies are not physically dangerous). [238]
b. Listing: In courts that judge
“inherent dangerousness” in the abstract, here are felonies that are
typically considered inherently dangerous: robbery, burglary, rape, arson,
assault and kidnapping. By contrast, the various theft-related felonies
are generally not considered inherently dangerous: larceny, embezzlement
and false pretenses. [238]
C. Causal relationship: There must be
a causal relationship between the felony and the killing. First, the felony
must in some sense be the “but for” cause of the killing. Second, the
felony must be the proximate cause of the killing. [238 - 241]
a. Robber fires shot: If the
fatal shot is fired by the robber (even if accidentally), virtually all
courts agree that D is the proximate cause of death, and that the
felony-murder doctrine should apply. This is true whether the shot kills
the robbery victim, or a bystander. [239]
Example 1: On a city street, D
points a gun at V, and says, “Your money or your life.” While V is
reaching into his pocket for his wallet, D drops his gun. The gun strikes
the pavement and goes off accidentally, killing V. D's acts of robbery are
clearly the proximate cause of V's death, and D is guilty of murder under
the felony-murder rule.
Example 2: Same facts as above
example. Now, assume that when the gun strikes the pavement and goes off,
it kills B, a bystander 20 feet away. D's acts are the proximate cause of
B's death, so D is guilty of murdering B under the felony-murder doctrine.
b. Victim or police officer kills
bystander: Where the fatal shot is fired by the robbery victim or by a
police officer, and a bystander is accidentally killed, courts are split
as to whether the robber is the proximate cause of the death. California,
for instance, does not apply the felony-murder doctrine in any situation
where the fatal shot comes from the gun of a person other than the robber.
In other states, the result might depend on whether the robber fired the
first shot, so that if the first shot was fired by the victim and struck a
bystander, the robber would not be guilty. [239]
c. Robber dies, shot by victim,
police officer or other felon: Where the person who dies is one of the
robbers, and the fatal shot is fired by another robber, the robbery victim
or by police officers, courts are even more reluctant to apply the
felony-murder doctrine. Some courts hold that the felony-murder doctrine
is intended to protect only innocent persons, so it should not apply where
a robber is killed. Where a robber is killed not by one of his cohorts but
by the robbery victim or the police, the case for applying the felony
murder rule is the weakest of all. [240]
Note on
“depraved heart” as alternative: In any robbery situation, in addition
to the possibility of “felony murder” as a theory, examine the
possibility of using “depraved heart” as an alternate theory. For
instance, if D, while committing a robbery, initiates a gun fight, and a
police officer shoots back, killing a bystander, it may be easier to argue
that D behaved with reckless indifference to the value of human life (thus
making him guilty of “depraved heart” murder) than to find that the
felony murder doctrine should apply (since many courts hold that the
felony-murder doctrine applies only where the killing is by the
defendant's own hand or the hand of his accomplice). [241]
D. Accomplice liability of co-felons:
Frequently, the doctrine of felony-murder combines with the rules on
accomplice liability. The net result is that if two or more people work
together to commit a felony, and one of them commits a killing during the
felony, the others may also be guilty of felony-murder. [241 - 242]
1. “In furtherance” test: In
most courts, all of the co-felons are liable for a killing committed by one
of them, if the killing was: (1) committed in furtherance of the felony; and
(2) a “natural and probable” result of the felony. [242 - 242]
Example: A and B decide to rob a
convenience store together. A carries no gun. A knows that B is carrying a
loaded gun, but also knows that B has never used a gun in similar
robberies in the past, and that B does not believe in doing so. During the
robbery, B accidentally drops the gun, and the gun goes off when it hits
the floor, killing V, the convenience store operator. Because B was
holding the gun “in furtherance” of the robbery when he dropped it,
and because an accident involving a loaded gun is a somewhat “natural
and probable” consequence of carrying the loaded gun during the felony,
there is a good chance that the court will hold not only that B is guilty
of felony-murder, but that A is also guilty of felony murder as an
accomplice to B's act of felony murder.
b. Intentional killing:
Similarly, if the killing by one co-felon is intentional rather than
accidental, the other co-felons will probably still be liable under
accomplice principles as long as the killing was committed “in
furtherance” of the felony. This will normally be true even though the
other co-felons can show that they did not desire or foresee the killing.
But if the other co-felons can show that the killing was not committed for
the purpose of furthering the felony, they may be able to escape
accomplice liability. [242]
Example: A and B rob a
convenience store together; as A knows, B is carrying a loaded gun, but B
has never used the gun on any previous robberies and is generally opposed
to violence. Unknown to either, the new owner of the store is V, an old
enemy of B's. B decides to shoot V to death during the course of the
robbery, even though V is not threatening to call the police or resisting
the robbery in any way. A will have a good chance of persuading the court
that the killing was not “in furtherance of” the robbery, and thus of
escaping accomplice liability for felony-murder.
E. “In commission of” a felony:
The felony-murder doctrine applies only to killings which occur “in the
commission of” a felony. [242 - 243]
2. Escape as part of felony: If the
killing occurs while the felons are attempting to escape, it will probably
be held to have occurred “in the commission of” the felony, at least if
it occurred reasonably close, both in time and place, to the felony itself.
[242]
Example: D intends to rape V. In
order to quiet her, he puts his hand over her mouth, thereby asphyxiating
her. D is almost certainly liable for felony-murder, even though he killed V
before he tried to rape her, and even though the final felony was only an
attempted rape (since one cannot rape a corpse).
F. Felony must be independent of the
killing: For application of the felony-murder doctrine, the felony must
be independent of the killing. This prevents the felony-murder rule from
turning virtually any attack that culminates in death into automatic murder.
[243 - 244]
Example 1: D kills V in a heat of
passion, under circumstances that would justify a conviction of voluntary
manslaughter but not murder. Even though manslaughter is obviously a
“dangerous felony,” the felony-murder rule will not apply to upgrade the
manslaughter to felony-murder. The reason is that the underlying felony must
be independent of the killing, a requirement not satisfied here.
Example 2: D intends to punch V in
the jaw, but not to seriously injure him or kill him. V, while falling from
the blow, hits his head on the curb and dies. Even though D was committing the
dangerous felony of assault or battery, this will not be upgraded to
felony-murder, because the felony was not independent of the killing.
G. Model Penal Code approach: The
Model Penal Code does not adopt the felony-murder rule per se. Instead, the
MPC establishes a rebuttable presumption of “recklessness...manifesting
extreme indifference to the value of life” where D is engaged in or an
accomplice to robbery, rape, arson, burglary, kidnapping or felonious escape.
Thus if an unintentional killing occurs during one of these crimes, the
prosecution gets to the jury on the issue of “depraved heart” murder. But
D is free to rebut the presumption that he acted with reckless indifference to
the value of human life. The MPC provision is thus quite different from the
usual felony-murder provision, by which D is automatically guilty of murder
even if he can show that he was not reckless with respect to the risk of
death. [245]
IV. DEGREES OF MURDER
A. Death penalty: At least 35 states
now authorize the death penalty for some kinds of murder. [246 - 248]
1. Not necessarily “cruel and
unusual”: The death penalty is not necessarily a “cruel and unusual”
punishment, and thus does not necessarily violate the Eighth Amendment. [Gregg v. Georgia, 428 U.S.
153 (1976)]
[246]
2. Must not be
“arbitrary or capricious”: However, a state's death-penalty scheme must
not be “arbitrary or capricious.” That is, the state may not give too
much discretion to juries in deciding whether or not to recommend the death
penalty in a particular case. Typically, the state avoids undue discretion
by listing in the death penalty statute certain aggravating circumstances
(e.g., the presence of torture) -- then, if the jury finds one or more of
the aggravating circumstances to exist beyond a reasonable doubt, the jury
may recommend the death penalty. In general, this “aggravating
circumstance” approach has been upheld by the Supreme Court as
constitutional. [246]
3. Mandatory
sentences not constitutional: By contrast, it is usually unconstitutional
for a state to try to avoid undue jury discretion by making a death sentence
mandatory for certain crimes (e.g., killing of a police officer, or killing
by one already under life sentence). The Supreme Court has held that the
states must basically allow the jury to consider the individual
circumstances of a particular case (e.g., the presence of extenuating
circumstances), and a mandatory-sentence scheme by definition does not allow
this. [Woodson v. North Carolina,
428 U.S. 280 (1976)] [247]
4. Racial
prejudice: A defendant can avoid a death sentence by showing that the jury
was motivated by racial considerations, in violation of his Eighth Amendment
or equal protection rights. However, the Supreme Court has held that any
proof of impermissible racial bias must be directed to the facts of the
particular case, and may not be proved by large-scale statistical studies. [McCleskey v. Kemp, 481 U.S.
279 (1987).]
[247]
5. Non-intentional
killings: The Eighth Amendment appears to prevent use of the death penalty
against a defendant who does not himself kill, attempt to kill or intend
that a killing take place, or that lethal force be employed. [Enmund v. Florida, 458 U.S.
782 (1982).]
[247]
Example: D drives a
getaway car while his two accomplices go into a farm house and murder the
inhabitants. Held, since D did not commit the killing or desire it, he may
not be executed, even though he is guilty of murder by virtue of the
felony-murder doctrine and the rules on accomplice liability. [Enmund,
supra]
B. First-degree murder: Most states
recognize at least two degrees of murder. First-degree murder in most states
is a killing that is “premeditated and deliberate.” [248 - 250]
1. Only short time required for
premeditation: Courts do not require a long period of premeditation.
Traditionally, no substantial amount of time has needed to elapse between
formation of the intent to kill and execution of the killing. Most modern
courts require a reasonable period of time during which deliberation exists,
but even this is not a very stringent requirement -- five minutes, for
example, would suffice in most courts even today. [248]
a. Planning, motive or careful
manner of killing: Like any other form of intent, premeditation and
deliberation can be shown by circumstantial evidence. Typical ways of
showing that D premeditated are: (1) planning activity occurring prior to
the killing (e.g., purchase of a weapon just before the crime); (2)
evidence of a “motive” in contrast to a sudden impulse; and (3) a
manner of killing so precise that it suggests D must have a preconceived
design. [249]
2. Intoxication as negating
deliberation: If D is so intoxicated that he lost the ability to deliberate
or premeditate, this may be a defense to first-degree murder (though not a
defense to murder generally, such as second-degree murder). [249]
3. Certain felony murders: Statutes
in some states make some or all felony-murders (typically, those involving
rape, robbery, arson and burglary) first-degree. [250]
C. Second-degree murder: Murders that
are not first-degree are second-degree. These typically include the following
classes: [250]
4. Felony-murders: Killings
committed during the course of felonies other than those specified in the
first-degree murder statute (i.e., typically felonies other than rape,
robbery, arson and burglary). [250]
V. MANSLAUGHTER -- VOLUNTARY
A. Two types of manslaughter: In most
states, there are two types of manslaughter: (1) voluntary manslaughter, in
which there is generally an intent to kill; and (2) involuntary manslaughter,
in which the death is accidental. [250]
B. “Heat of passion”
manslaughter: The most common kind of voluntary manslaughter is that in which
D kills while in a “heat of passion,” i.e., an extremely angry or
disturbed state. [250]
c. No time for reasonable person
to cool off: The lapse of time between the provocation and the killing was
not great enough that a reasonable person would have “cooled off,”
i.e., regained his self-control; [250] and
2. Consequence of missing hurdle:
If D fails to clear hurdles (a) or (c) above (i.e., he is actually provoked,
and has not cooled off, but a reasonable person would have either not lost
his self-control or would have cooled off), D will normally be liable only
for second-degree murder, not first-degree, since he will probably be found
to have lacked the necessary premeditation. But if D trips up on hurdles (b)
or (d) (i.e., he is not in fact driven into a heat of passion, or has in
fact already cooled off), he is likely to be convicted of first-degree
murder, since his act of killing is in “cold blood.” [251]
C. Provocation: As noted, D's act
must be in response to a provocation that is: (1) sufficiently strong that a
“reasonable person” would have been caused to lose his self control; and
(2) strong enough that D himself lost his self-control. [251 - 254]
2. Objective standard for emotional
characteristics: Courts generally do not recognize the peculiar emotional
characteristics of D in determining how a reasonable person would act.
(Example: All courts agree that the fact that D is unusually bad-tempered,
or unusually quick to anger, is not to be taken into account.) [251]
Example: V, a man, slaps D, a
man, because D has failed to pay back a debt. This will probably
constitute adequate provocation, so if D then flies into a rage and kills
V, this will be manslaughter rather than murder.
c. Adultery: The classic
voluntary manslaughter situation is that in which Husband surprises Wife
in the act of adultery with her paramour, and kills either Wife or Lover.
This will almost always be sufficient provocation. (But courts do not
necessarily recognize provocation where the couple is unmarried.) [252]
d. Words alone: Traditionally,
words alone cannot constitute the requisite provocation -- no matter how
abusive, insulting or harassing, D will be guilty of murder, not
manslaughter, if he kills in retaliation. [253]
Example: V says to D, formerly
his best friend, “You know, I've been having an affair with your wife
for the last six months. She's a heck of a girl, and we'd like you to
give her a divorce so that we can get married.” This is probably
sufficient provocation, so that if D kills V, he is probably entitled to
a manslaughter verdict.
4. Effect of mistake: If D
reasonably but mistakenly reaches a conclusion which, if accurate, would
constitute sufficient provocation, courts will generally allow manslaughter.
(Example: Based on circumstantial evidence, D reasonably but erroneously
suspects that his wife has been sleeping with his best-friend. Probably this
will suffice as provocation.) [254]
Example: D finds his wife together
with V, his best friend. D has in fact suspected the affair for some time,
and thus coolly says to himself, “Now's my chance to kill V and get off
with just voluntary manslaughter.” He cold-bloodedly shoots V in the
heart. Even though the provocation would have been sufficient to cause a
reasonable person to lose control, D does not qualify for manslaughter here
because he was not in fact enraged at the moment of the shooting.
D. “Cooling off” period: The time
between D's discovery of the upsetting facts and his act of killing must be
sufficiently short that: (1) a reasonable person would not have had time to
“cool off”; and (2) D himself did not in fact cool off. [254]
1. Rekindling: But even if there is
a substantial cooling-off period between the initial provocation and the
killing, if a new provocation occurs which would rekindle the passion of a
reasonable person, the cooling-off rule is not violated. This is true even
if the new provocation would not by itself be sufficient to inflame a
reasonable person. [254]
E. Other kinds of voluntary
manslaughter: In addition to manslaughter based upon a “heat of passion”
killing, there are a number of other situations in which voluntary
manslaughter may be found. [255 - 256]
a. Imperfect self-defense: Thus
some states give D a manslaughter verdict for “imperfect
self-defense,” where D killed to defend himself but is not entitled to
an acquittal because: (1) he was unreasonably mistaken about the existence
of danger; or (2) he was unreasonably mistaken about the need for deadly
force; or (3) he was the aggressor. [255]
b. Imperfect defense of others:
Similarly, if D uses deadly force in defense of another, but does not meet
all of the requirements for exculpation, some courts give him the lesser
charge of voluntary manslaughter. (Example: If D witnesses a fight between
V and X, and honestly but unreasonably concludes that X was the aggressor,
D may be entitled to manslaughter for killing V.) [255]
2. Mercy killings: Some courts --
and many juries -- frequently give D a lesser verdict of voluntary
manslaughter when he commits a mercy killing, i.e., a killing to terminate
the life of one suffering from a painful or incurable disease. [256]
VI. MANSLAUGHTER -- INVOLUNTARY
A. Involuntary manslaughter based on
criminal negligence: A person whose behavior is grossly negligent may be
liable for involuntary manslaughter if his conduct results in the accidental
death of another person. [257 - 259]
1. Gross negligence required:
Nearly all states hold that something more than ordinary tort negligence
must be shown before D is liable for involuntary manslaughter. Most states
require “gross negligence”. Usually, D must be shown to have disregarded
a very substantial danger not just of bodily harm, but of serious bodily
harm or death. [257]
Example: D kills V, a pedestrian,
by driving at 50 mph in a 30 mph residential zone. D's conduct may be
grossly negligent if D was out for a pleasure spin, but not if D was rushing
his critically ill wife to the hospital.
a. Awareness usually required: As
noted, most states require D to have acted with “gross negligence” or
“recklessness.” In these states, courts usually require that D have
been actually aware of the danger. [258]
i. Model Penal Code agrees: The
MPC, which requires “recklessness” for involuntary manslaughter,
similarly requires actual awareness. Under the MPC, a person acts
recklessly only when he consciously disregards a substantial and
unjustifiable risk. [258]
5. Victim's contributory
negligence: The fact that the victim was contributorily negligent is not a
defense to manslaughter. (However, the victim's negligence may tend to show
that the accident was proximately caused by this action on the victim's
part, rather than by any gross negligence on D's part.) [259]
6. Vehicular homicide: Many states
have defined the lesser crime of vehicular homicide, for cases in which
death has occurred as the result of the defendant's poor driving, but where
the driving was not reckless or grossly negligent. (Most successful
involuntary manslaughter cases also involve death by automobile.) [259]
b. Criminally negligent homicide:
Additionally, some states define the crime of “criminally negligent
homicide,” whose penalties are typically less than the penalties for
involuntary manslaughter. These statutes are not limited to vehicular
deaths. (Example: The MPC defines the crime of “negligent homicide,”
which covers cases where D behaves with gross negligence, but is not aware
of the risk posed by his conduct.) [259]
B. The misdemeanor-manslaughter rule:
Just as the felony-murder rule permits a murder conviction when a death occurs
during the course of certain felonies, so the “misdemeanor-manslaughter”
rule permits a conviction for involuntary manslaughter when a death occurs
accidentally during the commission of a misdemeanor or other unlawful act.
[259 - 261]
3. “Unlawful act” defined: Any
misdemeanor may serve as the basis for application of the
misdemeanor-manslaughter doctrine. Also, some states permit the prosecution
to show that D violated a local ordinance or administrative regulation. And
if a particular felony does not suffice for the felony-murder rule (e.g.,
because it is not “inherently dangerous to life”), it may be used. [259]
Example: D gets into an argument
with V, and gives him a light tap on the chin with his fist. D intends
only to stun V. Unbeknownst to D, V is a hemophiliac and bleeds to death.
Since D has committed the misdemeanor of simple battery, and a death has
resulted, he is guilty of manslaughter under the misdemeanor-manslaughter
rule. The same result would occur if as the result of the light tap, V
fell and fatally hit his head on the sidewalk.
Example: D fails to stop at a
stop sign, and hits V, a pedestrian crossing at a crosswalk. V dies. Even
if D does not have the “gross negligence” typically required for
ordinary voluntary manslaughter, D's violation of the traffic rule
requiring that one stop at stop signs will be enough to make him guilty of
manslaughter under the misdemeanor-manslaughter rule.
a. Malum in se: In the case of a
violation that is “malum in se” (dangerous in itself, such as driving
at an excessive speed), the requisite causal relationship is often found
so long as the violation is the “cause in fact” of the death, even
though it was not “natural and probable” or even “foreseeable”
that the death would occur. That is, in malum in se cases, the usual
requirement of “proximate cause” is often suspended. [260]
b. Malum prohibitum: But if D's
offense is “malum prohibitum,” (i.e., not dangerous in itself, but
simply in violation of a public-welfare regulation), most states do
require a showing that the violation was the proximate cause of the death.
[260 - 261]
i. “Natural” or
“foreseeable” result: Some courts impose a requirement of proximate
cause by holding that the death must be the “natural” or
“foreseeable” consequence of the unlawful conduct. (Example: D fails
to renew his driver's license, and then runs over V, a pedestrian. A
court might well hold that since failure to renew a driver's license is
malum prohibitum, and since V's death was not a “natural” or
“probable” consequence of D's failure, D is not guilty under the
misdemeanor-manslaughter rule.)
5. Model Penal Code abolishes: The
Model Penal Code rejects the misdemeanor-manslaughter rule in its entirety.
However, under the MPC, the fact that an act is unlawful may be evidence
that the act was reckless (the Code's mens rea for manslaughter). [261]
VII. ASSAULT, BATTERY AND MAYHEM
A. Battery: The crime of battery
exists where D causes either: (1) bodily injury; or (2) offensive touching.
[266 - 267]
1. Injury or offensive touching:
Any kind of physical injury, even a bruise from a blow, will meet the
physical harm requirement. Also, in most states an offensive touching will
suffice. (Example: D, without V's consent, kisses V. Since this is an
offensive touching, it will constitute battery in most states even though V
was not physically injured.) [266]
2. Mental state: D's intent to
inflict the offensive touching or the injury will suffice, of course. But
also, in most states, if the contact is committed recklessly, or with gross
negligence, this will also suffice. [266]
Example: D throws a baseball with a
friend, in a crowded city street. The ball strikes V, a passerby. If a court
finds that D behaved recklessly, he will probably be guilty of battery, even
though he did not intend to touch or injure V.
3. Degrees of battery: Simple
battery is generally a misdemeanor. However, most states have one or more
additional, aggravated, forms of battery, some of which are felonies.
(Examples: Some states make it aggravated battery if D uses a deadly weapon,
or acts with “intent to kill” or with “intent to rape.”) [266]
B. Assault: The crime of assault
exists where either: (1) D attempts to commit a battery, and fails; or (2) D
places another in fear of imminent injury. [267 - 268]
Example: During an attempted bank
robbery, D points his gun at V, a customer at the bank, and says, “One
false step and I'll fill you full of lead.” This is assault of the
intentional-frightening variety; the fact that D's threat is conditional
does not prevent the crime from existing.
3. Aggravated assault: Simple
assault is a misdemeanor. However, most states recognize various kinds of
felonious aggravated assault (e.g., “assault with intent to kill” or
“assault with intent to rape”). [268]
C. Mayhem: The common-law crime of
mayhem is committed whenever D intentionally maims or permanently disables his
victim. Thus mayhem is a battery causing great bodily harm. [268]
1. Injury must be permanent: The
injury must not only be serious, but permanent. (Example: It is not mayhem
to break V's jaw, or to cut him with a knife in a way that causes a small
scar. On the other hand, it is mayhem to cut out V's eye, or to make him a
cripple by shooting off his kneecap.) [268]
VIII. RAPE
A. Rape defined: Rape is generally
defined as unlawful sexual intercourse with a female without her consent. [268
- 271]
a. Forcible rape even while
living together: A substantial minority of states now permit prosecution
for forcible rape even if H and W are living together. In other words, in
these states, the spousal exemption is virtually eliminated. [269]
b. Separated or living apart: An
additional substantial minority eliminate the spousal exemption based on
the parties' current living arrangements or marital status. Some of these
eliminate the exemption where the parties are not living together. Others
eliminate it only if the parties are separated by court order, or one has
filed for divorce or separation. [269]
a. Victim drunk or drugged: If D
causes V to become drunk, drugged or unconscious, the requisite lack of
consent is present. In some but not all states, consent is lacking if the
woman is drunk, drugged or unconscious even if this condition was not
induced by D. [269]
b. Fraud: If consent is obtained
by fraud, the status depends on the nature of the fraud. Where D tells a
lie in order to induce V to agree to have what V knows is intercourse with
him, the fraud is “in the inducement” and does not vitiate the
consent. (Example: D says to V, “Have sex with me, and I promise we'll
get married tomorrow.” Even if D is knowingly misleading V about the
probability of marriage, D has not committed rape.) [269]
i. Fraud in the essence: But if
the fraud is such that V does not even realize that she is having
intercourse at all (“fraud in the essence”), this will suffice for
rape. (Example: D, a doctor, has sex with V by telling her that he is
treating her with a surgical instrument. This is rape.) [269]
c. Mistake as to consent: If D
makes a reasonable mistake as to whether V consented, he does not have the
mens rea for rape. If D's mistake, however, is a negligent or reckless
one, courts are split about whether it furnishes a defense. [269]
4. Force: The vast majority of rape
statutes apply only where the intercourse is committed by “force” or
“forcible compulsion.” In other words, it is not enough that the woman
fails to consent; she must also be “forced” to have the intercourse. (If
the woman is unconscious or drugged, or is under-age, force is not an
element of the crime; but in other instances of rape, force is required.)
[269 - 271]
a. Threat of force: D's threat to
commit imminent serious bodily harm on the woman will be a substitute for
the use of actual physical force, in virtually all states. Some states
also recognize the threat to do other kinds of acts not involving serious
bodily harm (e.g., a threat of “extreme pain or kidnapping” may
suffice under the Model Penal Code). [270]
i. Implied threats or threats
of non-imminent harm: On the other hand, implied threats, or threats to
commit harm on some future occasion, or duress stemming from the
victim's circumstances, are all things that will not suffice, because
they are not threats to use force on the particular occasion. [270]
i. Reasonable resistance: No
state requires that the woman resist “to the utmost” anymore, as
some states used to. Typically, the woman must now make merely
“reasonable” resistance, as measured by the circumstances. (Example:
Where D is threatening V with a gun or knife, presumably it is
“reasonable” for V not to resist at all.) [270]
5. Homosexual rape: Because
common-law rape is defined so as to require both penetration and a female
victim, there can be no common-law homosexual rape. (However, a majority of
states have amended their rape statutes to be gender-neutral, so that
homosexual rape is now the same crime as heterosexual rape in most states.)
[271 - 271]
B. Statutory rape: All states
establish an age of consent, below which the law regards a female's consent as
impossible. One who has intercourse with a female below this age is punished
for what is usually called “statutory rape.” [271]
2. Encouragement by girl: The fact
that the under-age girl has encouraged the sex is irrelevant. Also, the fact
that the girl has lied about her age is no defense (unless it contributes to
D's reasonable mistake as to age, in a state recognizing reasonable mistake
as a defense). [271]
IX. KIDNAPPING
A. Definition of kidnapping:
Kidnapping is the unlawful confinement of another, accompanied by either a
moving of the victim or a secreting of him. [272]
a. Large distance not required:
The asportation need not be over a large distance. (Example: D accosts V
on the street, and makes her walk a few feet to his car, where he detains
her. The requisite asportation will probably be found.) [272]
Example: D, in order to rob V,
forces him to stand up and put his hands against the wall, while D empties
V's pockets. There is probably no asportation since there was no
independent purpose to the confinement and movement; therefore, there is
probably no kidnapping. But if B had been bound and gagged and left in a
strange place to allow D to escape, this probably would be kidnapping.
Chapter 9
THEFT CRIMES
I. INTRODUCTION
B. Distinguishing the basic three:
The three “basic” theft crimes are larceny, embezzlement and false
pretenses. Most exam questions relating to theft focus on the distinctions
among these three categories. Therefore, you must focus on two particular
dividing lines: [283]
1. Larceny vs. embezzlement: First,
focus on the dividing line between larceny and embezzlement. This comes down
to the question, “Was possession originally obtained unlawfully [larceny]
or lawfully [embezzlement]?” [283 - 284]
2. Larceny vs. false pretenses:
Second, focus on the dividing line between larceny and false pretenses. This
comes down to the question, “What was obtained unlawfully, mere possession
[larceny] or title [false pretenses]?” [284]
II. LARCENY
Example: D, a pickpocket, removes
V's wallet from V's pocket, and runs away with it, without V discovering for
some time what has happened. D has committed common-law larceny. That is, he
has taken property that belonged to another and that was in the other's
possession, and has carried it away, with an intent to steal it.
B. Trespassory taking: The
requirement of a “trespassory taking” means that if D is already in
rightful possession of the property at the time he appropriates it to his own
use, he cannot be guilty of larceny. [284 - 288]
Example: D rents a car from V, a
car-rental agency. At the time D consummates the rental transaction, he
intends to use the car for one week (and so notifies V), then return it. After
the week has passed, D decides to keep the car permanently, without paying any
further rental fee. At common law, D is not guilty of larceny. This is because
at the time he made the decision to appropriate the car, he was already in
rightful possession, under the rental contract. But if at the moment D rented
the car he intended to steal it, this would be a “trespassory taking” and
thus larceny.
1. Taking by employee: Where an
employee steals property belonging to the employer, and the employee had at
least some physical control over the property at the time he made the
decision to steal it, the existence of the requisite “trespassory
taking” can be unclear. [286 - 286]
a. Minor employee: If the
employee is a relatively low-level one, the court is likely to hold that
she had only custody, so that the employer retained possession. In this
event, the employee would commit the necessary trespass, and would be
guilty of common-law larceny. [286]
Example: D is an entry-level bank
clerk at V, a bank. D takes a stack of $100 bills out of her cash drawer,
and walks out of the bank with them. A court would probably hold that D
had only temporary “custody” of the bills in her cash register, not
true “possession.” Therefore, when D left the bank with the bills, she
trespassorily took the bills from V's possession, and is guilty of
common-law larceny.
i. Property received from third
person: But if the low-level employee receives property for the
employer's benefit from a third person, the employee will generally be
deemed to have possession, not mere custody -- if he then later
appropriates it, he is not guilty of larceny.
Example: D, a messenger, works
for V, a business. D goes to the bank and picks up money from the bank,
which is V's property needed for payroll. Here, D has possession, not
mere custody, so if he then absconds with the money he is not guilty of
larceny. Instead, he would be guilty of embezzlement.
b. High employee: If the employee
is one who has a high position, with broad authority, he will usually be
deemed to have possession, not just custody, of property that he holds for
the employer's benefit. Therefore, if he subsequently appropriates the
property for his own purposes, he is not guilty of larceny, but rather,
embezzlement. [286]
Example: D, the president of V, a
publicly-held corporation, has the right to sign checks on V's bank
accounts. He writes a check for $1,000, which he uses for his own
purposes, and in a way that is not authorized by his employment contract
with V. D has possession of the contents of the bank account, not mere
custody, so his use of the money for his own purposes is embezzlement
rather than larceny.
2. Transactions in owner's
presence: If the owner of property delivers it to D as part of an exchange
transaction which the owner intends to be completed in his presence, D
receives only custody, and the owner retains “constructive possession.”
Therefore, if D appropriates the property, the requisite trespass exists,
and the crime is larceny. [286]
Example: D drives into V's gas
station. He asks for his tank to be filled up, and drives off without
paying. Since the transaction was to be completed in V's presence, V
retained “constructive possession” of the gas, and D's driving away was
a trespassory taking and thus larceny. Some courts might call this
“larceny by trick,” but this is merely a particular way in which larceny
can be committed, not a separate crime.
a. Initial intent to keep it: If
D intends to keep the property at the time he finds it, he has committed
the requisite trespass, and can be liable for larceny. (But he will not be
guilty of larceny unless he also either knows who the owner is, or has
reason to believe that he may be able to find out who and where the owner
is. If D does not have such knowledge or reasonable belief at the time of
finding, he does not become guilty of common-law larceny even if,
subsequently, he discovers the owner's identity.) [287]
b. No initial intent to keep:
Conversely, if D does not intend to keep the property at the time he finds
it (that is, he intends to try to return it to the owner), his possession
is rightful and there is no trespass. Then, if D later changes his mind
and does keep the property, he is not guilty of larceny at common law,
since he is already in lawful possession. [287]
c. Property delivered by mistake:
The same rules apply where the owner of the property delivers it to D by
mistake -- D is not guilty of larceny, unless at the time he receives the
property, he both realizes the mistake and intends to keep the property.
[287]
d. MPC changes rule: The Model
Penal Code changes the common-law trespass rules in cases of lost, mislaid
or misdelivered property. Under the MPC, D's intent at the time he obtains
the property is irrelevant -- instead, D becomes liable for theft if
“with purpose to deprive the owner thereof, he fails to take reasonable
measures to restore the property to a person entitled to have it.” [288]
Example: D finds a wallet on the
street, with money in it. At the time he picks it up, he intends to return
it to V, its owner, who is identified on a driver's license inside the
wallet. After D keeps the wallet on his dresser for two days, he decides,
“I think I'll just keep it -- no one will ever know.” At common law, D
is not guilty of larceny, because at the time he found the wallet, he
intended to return it V. But under the MPC, D becomes guilty of larceny at
the moment he decides to keep the property and fails to take reasonable
steps to get it back to V.
4. Larceny by trick: If D gains
possession of property by fraud or deceit, the requisite trespassory taking
takes place. The larceny in this situation is said to be “by trick” --
larceny by trick is simply one way in which larceny may be committed, not a
separate crime. [288]
Example: D rents a car from V, a
car rental agency. At the moment of the rental transaction, D has already
decided that he will not return the car, and will not pay for it. D has
committed larceny of the “by trick” variety, because his initial taking
of possession was obtained by fraud or deceit.
C. Carrying away (“asportation”):
D, to commit larceny, must not only commit a trespassory taking, but must also
carry the property away. This is called “asportation.” [289 - 289]
Example: D enters V's car, turns on
the lights and starts the engine. At that point he is arrested. At common
law, this would probably not be enough movement to satisfy the asportation
requirement. But many courts today would hold that since D brought the car
under his dominion and control, he did enough to satisfy the requirement. If
D drove the car even a few feet, all courts would agree that he had met the
asportation requirement.
D. Personal property of another:
Common-law larceny exists only where the property that is taken is tangible
personal property. [289]
1. Intangibles: Thus at common law,
one could not commit larceny of intangible personal property, such as
stocks, bonds, checks, notes, etc. But today, all states have expanded
larceny to cover many intangible items such as stocks and bonds; some states
also cover such items as gas and electricity and services. [289]
E. Property of another: The property
taken, to constitute larceny, must be property belonging to another. Where D
and another person are co-owners, the common-law view is that there can be no
larceny. [290]
1. Recapture of chattel: If D is
attempting to retake a specific chattel that belongs to him, D will not be
guilty of larceny, because he is not taking property “of another.” In
most states, this is also true if D is genuinely mistaken (even if
unreasonably) in thinking that the thing he is taking belongs to himself
rather than the other person. But this rule does not apply where D is taking
cash or some other property in satisfaction of a debt (though the “claim
of right” defense may exist here; see infra). [290]
Example 1: D's
bicycle is stolen. Two days later he sees what is apparently the same bike,
chained to a lamp post. D genuinely believes that this is his own stolen
bike. He cuts the chain and removes the bike. If the bike was in fact his
own, D is clearly not guilty of larceny, because he has not taken the
property “of another.” If D genuinely believes that the bike was his --
even if this belief is unreasonable -- most courts will similarly hold that
he has not committed larceny.
Example 2: D is
owed $100 by V. D sees V's bicycle (worth $75) parked on the street. If D
takes the bike as a substitute form of payment, he probably cannot defend on
the grounds that the bike is not “property of another.” On the other
hand, most states would allow him to raise the “claim of right” defense,
discussed in Par. F(2) below.
F. Intent to steal: Larceny is a
crime that can only be committed intentionally, not negligently or recklessly.
[291 - 293]
Example: D enters V's car,
intending to take it on a three-mile “joy ride.” After one mile, D
crashes the car, destroying it totally. At common law, D is not guilty of
larceny, because he did not intend to permanently deprive V of his property.
a. Substantial deprivation: But
if D intends to use the property for such a long time, or in such a way,
that the owner will be deprived of a significant portion of the property's
economic value, the requisite intent to steal exists. [291]
Example: D takes a lawnmower
belonging to V, with an intent to keep it all summer and fall. This
probably constitutes larceny, because D intends to deprive V of a
substantial part of the useful life of the mower.
Example: In the above example
concerning the joy ride, D did not meet the intent-to steal requirement
because he did not intend to permanently deprive V of the car, even though
this was the result of D's acts. Conversely, if D takes a car with intent
to resell it or strip it for parts, D will not avoid a larceny conviction
because the police stop him one block away with the car in perfect
condition.
a. Money taken to satisfy claim:
Thus if D takes V's property with an intent to collect a debt which V owes
D, or to satisfy some other kind of claim which D has against V, D will
not be guilty of larceny. D is especially likely to have a good defense
where D's claim against V is a “liquidated” one, that is, one is with
a fixed monetary value. [292]
Example: D works for V. V fires
D, and illegally refuses to pay D D's last week of wages, equaling $100. D
reaches into V's cash register and removes $100 and walks out with it. D
is not guilty of larceny, because his intent was to collect a debt which V
owed him.
i. Mistake: Most significantly,
D lacks the requisite intent for larceny even if he is mistaken about
the validity of his claim against V. And this is true even if D's
mistake is unreasonable, so long as it is sincere. [292]
Example: D works for V. V fires
D, and refuses to pay him for three weeks of vacation pay, which D
genuinely believes is owed to him. Assume that under applicable legal
principles, and as any reasonably knowledgeable employee would
understand, D was not entitled to any vacation pay, because D had taken
all the vacation to which he was entitled up to the moment he was fired.
D nonetheless reaches into V's cash register and removes three weeks'
pay. D is not guilty of larceny, because he took pursuant to an honest,
though unreasonable and mistaken, belief that he had a
legally-enforceable claim against V for the money.
Example: V owes D $25. D and V
meet on the street, and V refuses to pay any of the money back, even
though it is overdue. D sees that V has the entire sum owed, $25, on V's
person. D takes the $25 back by force. Most courts would hold that this is
robbery, because the “claim of right” defense is not available for
crimes of violence such as robbery. [People v. Reid, 508 N.E.2d
661 (N.Y.1987)]
III. EMBEZZLEMENT
B. No overlap with larceny:
Embezzlement statutes are generally construed so as not to overlap with
larceny -- a given fact pattern must be either larceny or embezzlement, and
cannot be both. [295]
C. Conversion: For most larceny, D
needs only to take and carry away the property. But for embezzlement, D must
convert it, i.e., deprive the owner of a significant part of its usefulness.
If D merely uses the property for a short time, or moves it slightly, he is
not guilty of embezzlement (regardless of whether he intended to convert it.)
[295]
Example: D's boss lends D the company
car to do a company errand, and D decides to abscond with it or sell it. The
police stop D after he has driven the car for one mile. D is not technically
guilty of embezzlement, since he has not yet deprived the company of a
significant part of the car's usefulness, and thus has not converted it.
1. Meaning of “property”:
Embezzlement statutes typically are somewhat broader than larceny statutes,
in terms of the property covered. Anything that can be taken by larceny may
be embezzled (i.e., not just tangible personal property but, for instance,
stocks and bonds). Also, some embezzlement statutes cover real property
(e.g., D uses a power of attorney received from O to deed O's property to
D.) [295]
Example: D, a coal mine operator,
has his employees sign orders directing D to deduct from their wages the
amount that each owes to a grocery store. D deducts the amount, but then
fails to pay the store owner. D is not guilty of common-law embezzlement,
because he did not misappropriate the employees' money, but rather, failed
to make payment from his own funds. He is civilly liable but not
criminally liable. [Commonwealth v. Mitchneck,
198 A. 463 (Pa. 1938)]
i. Model Penal Code changes:
The Model Penal Code changes the common law rule described above, by
creating a new crime of “theft by failure to make the required
disposition of funds received.” The provision applies wherever D not
only agrees to make a payment but reserves funds for this obligation. D
in Mitchneck, supra, would be liable under the MPC rule.
b. Co-owners: One who is co-owner
of the property together with another cannot, at common law, embezzle the
joint property, because it is deemed to be his “own.” Thus one partner
in a business cannot commit common-law embezzlement against the other.
(But some modern embezzlement statutes explicitly apply to co-owned
property.)
c. Security interest: Suppose D
buys goods on credit, and gives the seller a “security interest,”
entitling the seller to repossess the goods if D does not pay the price.
If D then fails to repay the money and sells the goods in violation of the
security agreement, this will usually not be treated as embezzlement.
[296]
E. “By one in lawful possession”:
The main distinction between larceny and embezzlement is that embezzlement is
committed by one who is already in lawful possession of the property before he
appropriates it to his own use. [297 - 298]
Example: D, a lawyer, is appointed
trustee of a trust for the benefit of V. The trust principal consists of
$10,000, held by D in a bank account named “D in trust for V.” D takes the
money and buys a new car for himself. D is guilty of embezzlement, because he
took property of which he was already in lawful possession.
a. Minor employee: But remember
that a low-level employee may be held to have received only custody of the
item, not true “possession.” If such a minor employee takes the
property for his own purposes, he would be committing larceny rather than
embezzlement. (Many states have changed this rule by statute, however --
they make it embezzlement rather than larceny for any employee to take
property in his possession or “under his care,” thus covering even
low-level employees who have only custody.) [298]
2. Finders: Recall that one who
finds lost or mislaid property, or to whom property is mistakenly delivered,
is not guilty of common law larceny if he gains possession without intent to
steal (see supra).
But most embezzlement statutes don't cover this situation either. However,
some states have special “larceny by bailee” statutes covering this
situation, and other states have embezzlement statutes that explicitly cover
finders and other bailees. [298]
1. Claim of right: Thus if D
honestly believes that he has a right to take the property, this will
usually negate the existence of fraud. Thus if D mistakenly believes that
the property is his, or that he is authorized to use it in a certain way,
this will be a defense (probably even if the mistake is unreasonable). [298]
Example: D, president of V Corp.,
is dismissed by the board of directors. The board refuses to pay D a $20,000
bonus, which D genuinely believes the company was contractually committed to
pay D for D's work in the prior year. D writes himself out a check for
$20,000. D's taking here is probably not “fraudulent” and D is not an
embezzler, even if D's claim of right was a mistaken one.
Example: D, president of V Corp.,
“borrows” $10,000 from the corporate treasury with which to play the
stock market. At the time of this borrowing, D has a net worth of several
million dollars, and honestly intends to repay the money within one week. D
is arrested before he can repay the money. It is clear that D is guilty of
embezzlement, despite his intent and ability to repay.
Note: But if the property is
something other than money, and D shows that he has an intent to return the
very property taken (and has a substantial ability to do so at the time of
taking), this will be a defense to embezzlement. (Example: D uses the
company car for a two-hour personal trip, intending to return it. He is not
an embezzler even if he accidentally destroys the car.)
IV. FALSE PRETENSES
A. Definition: The crime of obtaining
property by false pretenses -- usually called simply “false pretenses” --
has these elements: [299]
B. Nature of crime: Thus false
pretenses occurs where D uses fraud or deceit to obtain not only possession
but also ownership (title). The crime differs from larceny with respect to
what is obtained: in larceny, D obtains possession only, not title. [300]
C. False representation of present or
past fact: There must be a false representation of a material present or past
fact. [300 - 301]
Example: Buyer wants to buy
Seller's ring, which as Seller knows Buyer thinks is diamond. Seller knows
that the ring is really glass. Seller quotes a price that would be a low
price for diamonds, but hundreds of times too high for glass. Seller has
probably committed a false representation as to the nature of the ring by
reinforcing what he knows to be Buyer's misconception.
Example: D, owner of a car whose
engine block is broken, paints the engine block in such a way as to
conceal the defect, then sells the car to V at a price that would be a
fair price for a car with a good engine. D would probably be held to have
made a misrepresentation by his act of concealment and would therefore be
guilty of false pretenses.
Example: D has long been the
family jeweler for V and his family. D knows that V trusts D in matters
relating to jewelry. V sees a ring in D's window and says, “Oh, what a
lovely diamond ring; I'll pay you $1,000.” D knows that the ring is
cubic zirconium, but remains silent and accepts the $1,000. Because D
probably had a fiduciary relationship with V based on their past dealing
and V's extra trust in D, D has probably made a misrepresentation and can
be guilty of false pretenses.
2. False promises not sufficient:
Most courts hold that the representation must relate to a past or present
fact. False promises, even when made with an intent not to keep them, are
not sufficient in most courts. (But an increasing minority of courts do
treat knowingly false promises as sufficient.) [301 - 301]
Example: D borrows money from V
Bank, promising to repay it on a particular date. D in reality has no
intention of ever repaying the money, and plans to abscond with it to South
America. In most courts, this is not taking money by false pretenses, but in
an increasing minority of courts it is.
2. Materiality: Also, the false
representation must be a “material” one. That is, it must be a
representation which would play an important role in a reasonable person's
decision whether to enter into the transaction. [301]
E. Passing of title: Remember that
title, not merely possession, must pass for false pretenses. Generally, this
turns on what the victim intends to do. [302 - 302]
1. Sale as opposed to loan or
lease: If the victim parts with property in return for other property or
money, there is a transfer of title if a sale occurs, of course. But if the
victim merely lends or leases his property, only possession has been
transferred, so that the offense is larceny by trick rather than false
pretenses. [302]
2. Handing over money: Where V
hands over money to D, this will usually be a passing of title, and the
crime will thus be false pretenses. (Example: D borrows money from V, a
bank, by lying on the credit application. The bank is deemed to have passed
over title to the money in return for D's promise to repay with interest, so
D has committed false pretenses.) [302]
a. Money for specific purposes:
But if V gives D money with the understanding that D will apply it towards
a particular purpose, this is likely to be a passage of possession rather
than title, and thus larceny rather than false pretenses. This is
especially the case where it can be argued that D has taken the money in
“constructive trust” for V.
Example: V, a client, gives
$1,000 to D, a lawyer who is assisting V in the sale of some property. V
tells D that D should use the money to pay off a tax lien against the
property. Instead, D gambles away the money. Assuming that from the very
moment of the transfer of funds D intended to misuse the money -- thus
preventing the case from being embezzlement -- D would be guilty of
larceny rather than false pretenses, because the property was given to him
earmarked for a specific purpose.
G. D's mental state: False pretenses
is essentially a crime requiring intent. However, the intent requirement is
deemed met if either: (1) D knows that the representation is untrue; (2) D
believes, but does not know, that the representation is untrue; or (3) D knows
that he does not know whether the representation is true or false. [303]
Example: D has a painting found in
his attic, signed “van Gogh.” D knows nothing about art or the
circumstances in which the painting came to be in his attic. D nonetheless
tells V, a prospective amateur buyer who also knows nothing about art, “This
painting is a genuine van Gogh.” Because D knows that he does not in fact
know the provenance of the painting, D has committed the requisite false
representation. He is therefore guilty of false pretenses when he makes the
sale to V at a price that would be appropriate for a genuine van Gogh.
2. Claim of right: If D goes
through the transaction under a claim of right, this will be a defense to
false pretenses just as to embezzlement or larceny. This is true, for
instance, where D uses subterfuge to collect a debt. [304]
Example: V owes D $1,000, which V
has refused to repay in a timely way. D then offers to sell V a ring which D
says is a true diamond worth $2,000. The ring is in fact cubic zirconium
worth $20. V agrees to buy the ring for $1,000. Assuming that D's purpose in
entering into the “fraudulent” transaction was merely to recoup the
$1,000 that V owed him, D's misrepresentation is not truly fraudulent, and D
is not guilty of false pretenses.
2. No pecuniary loss: Similarly,
the fact that V has suffered no actual pecuniary loss is usually not a
defense. So long as D has knowingly made the requisite material false
representation of fact that causes V to transfer property, the fact that the
trade may be approximately “even” is irrelevant. [304]
Example: D sells office supplies to
V, a large company, by bribing V's purchasing agent. The prices charged by D
are “ordinary” prices in the trade, neither as low as some charge nor as
high as others charge. D cannot defend a false pretenses prosecution on the
grounds that V has suffered no financial loss. This is because D has
acquired property (V's money) by fraud, and V would not have paid the money
had it known that the sales were procured by bribery of an employee.
I. Related crimes: Here are some
statutory crimes, found in many jurisdictions, that are related to false
pretenses but deal with slightly different situations: [304]
2. Federal mail fraud: The federal
mail fraud statute makes it a crime to use the mails as part of a scheme to
defraud a victim of his property. Here, too, the scheme does not have to be
successful for liability to exist. [304]
3. Forgery: The crime of forgery
exists where a document (usually a check or other negotiable instrument) is
falsified. The falsification must relate to the genuineness of the
instrument itself. Again, it is not necessary that the forged document
actually be used to obtain property from another. (Example: D steals checks
from V, then signs V's name to them. If D is found with the checks in his
possession, he is already liable for forgery even if he has not used the
checks to gain property.) [305]
V. CONSOLIDATION OF THEFT CRIMES
A. Consolidation generally: Some
states, though still a minority, have joined two or more of the group of
larceny, embezzlement and false pretenses into a unified crime called
“theft.” [305 - 306]
1. MPC consolidation: The MPC
achieves a similar, though not identical, consolidation. Larceny and
embezzlement are consolidated as “theft by unlawful taking or
disposition.” “Larceny by trick” (classically a form of larceny) and
false pretenses are combined into “theft by deception.” Also, several
new crimes are created, including “theft of property lost, mislaid, or
delivered by mistake” (which previously could have been either larceny or
embezzlement, depending on the facts). [305]
VI. RECEIVING STOLEN PROPERTY
A. Targeted at fences: The crime of
“receipt of stolen property” is directed primarily at “fences,”
middlemen who buy goods at a very low price from thieves and resell them to
end-users. [306]
2. Trap laid by police: If property
is sold by a thief who is cooperating with the police, or by the police
themselves, the fence who buys it is not guilty of receiving stolen
property, even if he believes the property is stolen. This is because the
property is no longer in fact stolen. However, the fence will typically be
guilty of attempted receipt of stolen goods. [306]
b. Suspicion: On the other hand,
if D merely suspected that the goods might be stolen (in the sense that he
recognized a possibility that they were stolen), this will not meet the
knowledge requirement. And needless to say, the mere fact that a
reasonable person in D's position would have suspected that the goods were
stolen, or would have believed them to be stolen, is not enough (though
this will of course be circumstantial evidence as to what D actually
believed). [307]
c. Model Penal Code applies
presumption: The MPC institutes a presumption that a dealer possesses the
required knowledge or belief in some circumstances (e.g., he is found in
possession of property stolen from two or more persons on separate
occasions, or buys for far below the goods' reasonable value). But under
the MPC, the dealer can rebut this presumption. [307]
VII. BURGLARY
B. Breaking: At common law, there
must be a “breaking.” This means that an opening must be created by the
burglar. [307 - 307]
Example: If Owner simply leaves his
door or window open, the requisite breaking does not exist. However, no force
or violence is needed; the mere opening of a closed but unlocked door,
followed by entry, suffices.
C. Entry: There must also be, at
common law, an entry following a breaking. However, it is sufficient that any
part of D's anatomy enters the structure, even for a moment. [307]
Example: D reaches his hand through a
window to grab an item just on the inside of the window; this suffices for
breaking and entering, so if D carries the property away, he has committed
common-law burglary.
D. Dwelling of another: The common
law required that the structure be the dwelling of another. Thus a place of
business did not suffice. [308]
E. Nighttime: At common law, the
breaking and entering had to occur at night. [308]
F. Intent to commit felony therein:
At common law, the burglar must, at the time he entered, have intended to
commit a felony once he got inside. [308]
VIII. ROBBERY
Example: D accosts V on the street
at night, and says to V, “Give me your wallet or I'll punch you in the
face.” V complies, and D carries the property away. D has committed
robbery, because D has committed larceny (the taking and carrying away of
the property of another with intent to permanently deprive him of it), and
has done so by taking the property from V's person, and putting V in fear of
what would happen if he did not comply with D's demand.
B. Presence or person of V: The
property must be taken from the presence or person of its owner. [309]
1. “Presence” of victim: Most
robberies take place directly from the victim's “person.” But it is
enough that the taking is from V's “presence.” The test for
“presence” is whether V, if he had not been intimidated or forcibly
restrained, could have prevented the taking. [309]
Example: D enters V's house and
bedroom. While pointing a gun at V, who is on the bed, D takes V's purse
from her dresser, and carries it away. Since the property was taken from V's
“presence” -- V could have prevented the taking if not intimidated --
robbery has taken place even though the taking was not from V's
“person.”
Example 1: V is walking down the
street, and is momentarily distracted by a near collision. D stealthily
plucks V's wallet out of V's half-open purse. V does not realize what has
happened until some time later. D has committed larceny but not robbery,
because D did not use violence or intimidation.
Example 2: Same basic fact pattern
as prior example, except that D simply snatches V's purse from her grasp. V
has no chance to resist, though she is aware for a fleeting second of what
is happening. This is not robbery, because there has been no violence or
intimidation. (But if V had been able to put up even a brief struggle, the
requisite violence would exist for robbery.)
1. Intimidation: A threat of harm
may suffice in lieu of violence. V must be placed in apprehension of harm.
(Example: D pulls a gun on V, and says, “Your money or your life.”
This is robbery even though no actual force is used.) [309]
D. No simultaneous larceny and
robbery: The same transaction cannot give rise to simultaneous convictions for
larceny and robbery. This is because robbery is a form of larceny, with the
additional element of force present. [309]
E. “Armed” robbery: One
aggravated form of robbery, defined in most states, is “armed robbery.”
This exists where D uses a deadly weapon. [309]
IX. BLACKMAIL AND EXTORTION
A. Definition: If D obtains property
by a threat of future harm, he is guilty of extortion. The crime is called
“blackmail” in some states (but there is no significant difference between
what some states call blackmail and other call extortion). [310]
B. Nature of threat: The threat can
be of various types: to cause physical harm to V or his family or relatives;
to cause economic injury; or (most commonly) to accuse V of a crime, or to
divulge disgracing information about V. [310]
Example: D secretly photographs V, a
married man, in the arms of V's lover. D shows V copies of the photos, and
threatens to send the photos to V's wife if V does not pay D $2,000. This is
extortion, because D has threatened to cause V future harm (exposure) if V
does not give D property.
C. Attempt by D to recover property:
Suppose D uses threats of future harm to recover property that V has taken
from D. Courts are split as to whether D may defend against an extortion
charge by showing that he was operating under a “claim of right.” Most
courts today would probably allow this defense, provided that D is merely
recovering the same property or value that V previously, and wrongfully, took
from him. [310]
Example: D, a storekeeper, watches V
shoplift $50 worth of merchandise. D is unable to stop V as V leaves the
store. The next day, V comes back to the store. D, after writing down V's
license plate number, tells V, “If you don't sign a confession to
shoplifting and pay me $50, I will turn you in to the police.” Most courts
today would probably hold that this is not extortion by D, because D is merely
making an effort to reclaim property which V has taken from him.
1. Reasonable mistake: Some of the
courts allowing D a defense on facts like those in the above example would
probably also grant a defense where D has made a reasonable mistake about
whether V owed the property or money to D. (Example: On the facts of the
above example, some courts would grant D a defense to extortion if he showed
that he mistakenly, but reasonably, believed that V had stolen $50 of
merchandise.) [310]
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