Donated by Dan Assenmacher Criminal Law Outline P.

Lysaght 2005

Criminal Law Sources and Nature of Criminal Law Model Penal Code is key Basic difference is criminal law punishes people for doing wrong things Conviction itself is crucial Individual is determined as a moral wrong doer The whole community and society condemns the individual Theories of Punishment There needs to be an explanation or justification as to why bad things happen to good people Pain is being inflicted in the name of the people when convict, stigmatize, and punish wrong doers. Theory of punishment goes on to explain the reasons why it may be okay under certain circumstances to inflict pain-to punish others Is it morally justifiable to punish that particular person for committing this particular act on this particular occasion? Rules of criminal law Understandings of common law judges when punishment is appropriate Two conflicting theories of punishment o Retribution-or retributive theory Doesnt mean vengeance People deserve to be punished if they have done something wrong Retributivists need to come up with the explanation as to why its appropriate to punish a wrong doer Explanation is: human beings in general possess free will People have the capacity to act freely to do right or wrong When they choose to do wrong, its appropriate to punish them When a person has chosen to commit a crime, a person has chosen to take something from society While the rest of us are obeying the law this person has taken something from us all and therefore owes a debt to society Punishment is a payment of that debt

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o Done proportional to what they have taken from us o Proportional to the crime they committed o Proportional to the moral blameworthiness for causing the harm o Way of bringing criminal back into moral equilibrium Criminal is given burdens which were burdens upon society Retributivist looks backward-looks back at what the defendant has done o Utilitaritism-punishment is bad, its a form of pain, but so is crime a form of pain Society should punish a person if and only if the imposition of that punishment will reduce the net societal pain that is felt People are rational calculators-balance of the pleasure of committing the crime is weighed against the pain if the person is caught-will rationalize if its worth the risk General deterrence-using an individual as an object lesson for the rest of society; to convince the rest of society not to commit same or similar acts because you will get punished Specific deterrence-deter the individual While in jail, specific deterrence by incapacitation-person can not commit another crime while incapacitated Specific deterrence by intimidationindividual will remember the pain of punishment Rehabilitation-find out why person committed crime and try to rehabilitate that person Legality It is the most basic principle-we dont punish a person because hes bad, immoral or because hes dangerous We dont punish a person because that person has committed a bad, dangerous or immoral act We only punish a person if that bad, immoral, and/or dangerous act is a crime No crime without law, no punishment without law

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Unless an act defined as a crime, then that person may not be punished under that act Criminal statute should not be vague-must have fair notice and be sufficiently clear Burden of Proof Government must prove the defendants guilt in a case beyond a reasonable doubt o Must prove every element of a crime beyond a reasonable doubt o Jurors must have an abiding conviction of the defendants guilt Every element of the crime (definition) must be proven to a moral certainty Crime has two components o Actus reus-the external part of the crime (the physical part of the crime) What happens in the world that we dont want to have happen o Mens rea-mental part of the crime With what state of mind did the defendant commit the actus reus o elements of crime Must be some conduct by the defendant that includes a voluntary act or failed to act where there was a duty Voluntary act (or omission) must cause social harm Mens rea Causation Actual cause Proximate cause Voluntary Act Requirement Actus Reas-dont punish people for thoughts, punish for their actions Defendants conduct must include a Voluntary Act Model Penal Code 2.01 o Willed muscular contraction o Even coerced reactions can be deemed voluntary acts o Tricky point-it isnt necessary that every act be voluntary, only the relevant conduct needs to be voluntary (ie. Driving an automobile with a seizure) Involuntary act-seizures, sleepwalking, drug addiction use, etc. Omissions A person held responsible for what he/she has not done Only in a few limited cases does a person have a duty to act o Statutory duties-file income tax forms, parent to provide food and shelter o Status relationships-common law establishes a duty based on relationship, ie. Husband-wife, parent-child, employer-employee o Contractual duty to aide-ie. Babysitter-implied contract o Actor creates a risk of harm to the victim, but fails to do something to diminish that risk-the risk which may occur during the omission of action o When the defendant starts to act, but then stops-ie. If you start to act but decide not to, and then stop, making matters worse for the victim Social Harm Requirement Punish people for acts or omissions which result in social harm Dealing with harm to whole society, not just one victim Look at external acts expressed in a statute to determine the social harm
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Actus Reus-conduct involves a voluntary act required o Define the term voluntary act-a willed muscular contraction Omission-no criminal responsibility for failure to act o Exception-need to review to see if there are any Social harm-physical offensive harm of the act which did or did not take place Mens Rea (InGeneral) A Guilty Mind-mental state present during the Actus Reus there must be a Mens Rea proven in order to convict a person of a crime significant ambiguityo sometimes a guilty mind o if defendant committed the crime which is a morally blameworthy state of mine o a particular state of mind-the intent to commit that particular crime Culpability Elemental-specific mens rea of the crime Strict liability crimes require no mens rea Public welfare-not morally wrongful but rather dangerous to the public o Generally involve conduct that is not morally wrongful (mollum prohibitum) ie. Traffic violations o The conduct is bad only because we made it bad o Usually involve minimal or minor punishment o Conviction usually wont stigmatize the individual o No mens rea requirement in the statute General rule is that all crimes have a mens rea Mens Rea Terms Defined Requirement of men rea-model penal code always states the requirements o Purposely If it was the actors conscience object to cause that result o Knowingly If that person is aware if the result in question is virtually certain to occur o Recklessly A person consciously takes a substantial and unjustifiable risk of causing the particular harm that occurred Unjustifiable taking of a risk-if a reasonable person in that actors situation would not have taken that risk Gravity of the harm thats likely to occur Probability of the harm occurring Reasons why the risk was being taken Unjustifiable risk must be substantial-must be completely unreasonable behavior Actor must have been aware that this risk has been taken Known that the risk was substantial
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 Did it anyway All 3 elements must be present in order to be reckless o Negligently Higher degree than in tort law Substantial, unjustifiable risk taking-much like recklessness Person should have been aware but wasnt Intentionally-common law combines purposely and knowingly Specific Intent vs. General Intent Specific intent crime-requires proof of some particular mens rea that goes beyond simply intending the act that caused the social harm o Requires actual knowledge by the actor of some very specific circumstance General intent crime-does not mention a mens rea requirement within the statute-so no specific mens rea will be mentioned Mistake of Fact The fact at issue is mistaken What does it take to prove the defendants mens rea Common law o Characterize the crime for which the defendant is charged Strict liability Any mistake of fact is legally irrelevant Guilty at all-any time No mens rea required to commit strict liability crime General intent crime All that needs to be proven is that the defendant committed the actus reas with the morally culpable state of mind Did the defendant commit the crime in a morally culpable manner? A reasonable mistake of fact is a non-culpable mistake of fact An unreasonable mistake of fact is a morally blameworthy mistake of fact and the defendant would be held guilty because the mens rea is met Sometimes the court will find the defendant guilty regardless using the moral wrong doctrine Specific intent crime A mistake a fact will exculpate the defendant charged with the specific intent crime if the mistake negates the specific intent crime The mens rea must be proven in order to find the defendant guilty o Model Penal Code Draws absolutely no distinctions between general and specific intent Does the defendant have the particular mens rea found within the definition of the crime

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Either the mistake negates the particular state of mind or it does not mistake the particular state of mind

Mistake of Law The legal system is less likely to let someone off if they claim a mistake of law o Defendants mistake of law-reasonable or unreasonable is not a defense o Retributive theories of punishment-punishment is only justifiable on the showing of moral blameworthiness. Moral blameworthiness would be based upon a claim that a person has chosen to violate the law or at least acted unreasonably in misunderstanding the law o Doesnt follow retributivist theory but utilitarian theory o If we dont learn the law correctly, we act at our own risk o Ways to successfully claim a mistake of law If at the time of the crime the conduct fell outside the scope of the law if her misunderstanding of the law was based on an official yet erroneous interpretation of the law by a party who is in position to enforce or interpret the law in question A person must be relying on an official interpretation of the lawprivate attorneys are not valid to provide official interpretations If the criminal statute by its own definition happens to require that the defendant be aware of a particular law Causation Link between defendants conduct and the social harm that occurred A person is not the cause of the harm or the result unless these 2 elements can be proven o Cause in fact-actual cause What really happened factually Who caused the death to the victim Criminal homicide cases (usually) Test: But-for test (But for the defendants voluntary act or omission, would the social harm have occurred when it did?) If a person accelerates a death, then that person is the actual cause of the death. o Proximate cause Broader question-there is no one actual cause of harm Need to find the one person who is responsible for the social harm which was caused The particular But-For cause which created the harm Policy judgment-of all the causes, we want to hold this defendant liable Very few bright lines to determine proximate cause Draw a line down the page, on the left, put the defendants voluntary act, on the right, put the social harm-see if anything which is relevant between these two to see if any intervening causes which could be responsible for the harm

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Direct causation-nothing intervened Intervening acts-acts of God, self inflicted, third party, etc. must determine if we should shift the cause to the intervening cause Factors of proximate cause Intended consequences rule-jury will look backwards from the result until they find an intent to cause the harm o Sometimes this factor can override intervening causes because those intervening causes may not have intent o Does not have to be actual cause Apparent safety doctrine-once the would-be victim is considered in a position of apparent safety the defendants involvement in the events drop out of the picture. If anything happens to the victim after this point, it will not be the responsibility of the defendant Voluntary Human Intervening Cause-free-will decision is thought to end legal responsibility of earlier parties Distinguish between responsive intervening causes-comes into existence as a response the defendants conduct vs. coincidental intervening causes-an intervening cause which already existed o Normally, when the intervening cause can be determined as responsive, the law will hold the initial wrong-doer responsible for the death o The defendant brought the intervening act or actor into existence by his/her own conduct o The only time a defendant will get off is when the response was totally bizarre, unforeseeable response and so out of the ordinary, then the blame could shift-usually is another criminal action o Coincidental intervening causes must be reviewed to see if the original actor is responsible for putting the victim in the position to get killed so long as it is reasonably foreseeable that such result would occur. Model Penal Code 2.03 (2)(b) and (3)(b)-requires the jury to ask and answer a basic question-was the outcome too remote or so coincidental that it would be unjust to hold the defendant responsible? Justification vs. Excuse Categories of defenses Justifiable-defendant did the right thing or did nothing wrong in causing the outcome (focuses on the act) Excusable-looks at the actor, the defendant didnt do the right thing but should not be responsible because of some excusable condition (we dont blame you) Self-Defense

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Use of deadly force in self defense o When, justifiably, deadly force can be used o Use of force was necessary o Proportional to the threat he/she was combating o Reasonable belief o Who initiated-initial aggressor If at the time the actor used deadly force, that actor believed reasonably, that such force was necessary to combat imminent unlawful deadly force (using deadly force to combat deadly force-proportionality) at the hands of the aggressor The law does not require the defendant be correct-a defendant does not have to show that the decedent would have killed defendant if defendant did not kill decedent o Using deadly force as the only means of preventing deadly threat against the defendant-must be proportional o Must be combating an unlawful deadly threat o Deadly threat must be imminent-just about to happen Use of non-deadly self defense Deadly force can not be used-even if threat is deadly, unless killing the aggressor is the only the absolute necessary action Running away or retreat-if you can retreat to a place of safety without killing then defendant must retreat. If defendant does not and kills, then such killing may not be justified. The only exception to this rule is within the defendants own home. Defendant does not have retreat of his/her own house Battered Woman Self Defense A woman who has been abused by her husband or partner on a regular basis Imminent harm situations-where woman kills a man who is in the process of beating the woman-basic self defense case Where the threat is not as imminent and the circumstances are more ambiguous is where the threats are not immediate, the test is a reasonable person test allows for prior behavior of the man to constitute reasonableness that the woman would have been severely harmed or even killed Relevant facts are allowed to paint the picture Can the battered woman claim self defense if the abuser is sleeping? o Most jurisdictions say no o Some jurisdictions will allow the evidence of Battered Woman Syndrome in which the abuse by the man is physical and psychological and in essence traps the woman into believing that her only relief is to kill the man o Why is it justifiable to kill a person who is not if at all a threat? o Who is the reasonable person? Which characteristics of the defendant should be included to define this reasonable person Defense of Others A person may use deadly force if the person they are aiding would have the right of deadly force as a defense

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Courts are split as to the defense of others (the example of the police officer apprehending person at gunpoint-third party steps in to defend without understanding the situation) o Those who defend others must have reasonable belief that the third party is truly in a position of deadly jeopardy-good Samaritan view o Act at own risk-issue will not be whether defendant reasonably believed if other person was in danger, but rather as a matter of fact that other person was in danger Defense of Property Bright line rule- a person may never use deadly force to protect property (common law) Defense of property can merge into other areas which can use deadly force o For example, if you try to use moderate means to protect property but then someone pulls a gun on you, you just went from defense of property to defense of life Defense of Habitation Can use deadly force to protect ones home (real property) Home is special, your castle, your sanctuary A person may use deadly force under certain circumstances o If the other person will imminently, unlawfully, enter ones home and can only be prevented by using deadly force o Today additional requirements include that the defendant must reasonably believe that the intruder intends to commit forcible or atrocious felonies when the intruder enters Forcible or atrocious felonies are any felony where there is a threat of deadly force or serious bodily harm Defense does give a right to defendant to kill while intruder is on the other side of the door What must be imminent is the entry Law Enforcement Defense Quite obviously it is justifiable for the police to use violence to prevent a crime Deadly force can only be used to prevent a felony Original common law rule was that deadly force could be used to prevent any felony However, the use of deadly force to prevent a felony is a last resort If the police officer reasonably believes that deadly force is the only option then deadly force is acceptable The common law has changed and the only types of felonies that can have deadly force used are forcible felonies Police can use deadly force in the prevention of an escape of a criminal of any felony (old common law) Tennessee v. Garner-use of deadly force to prevent any criminal from escaping is against the Fourth Amendment by constituting an unreasonable seizure o Only if the following conditions are met
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Deadly force was reasonably necessary to prevent the escape Must have probable cause that this person if not arrested immediately poses a significant threat of death or bodily harm to the police or others

Necessity Use it when no other defense will work Model Penal Code refers to the choice of evils Defense of last resort- if no other defense seems to apply Only apply necessity if nothing else applies Must be an imminent harm to defendant (of which the defendant believes) Defendant must reasonably believe that the this is the only way o Either break the law and be alright o Dont break law and suffers serious bodily injury or death Person must not be at fault to create the need for necessity What this person did is the lesser of the two evils (defendant did the right thing) Dudley and Stevens-need to kill was just not imminent but the court held they could not claim necessity, a person may never kill another in order to save lives However MPC 3.02 says that necessity can be used for any crime under the theory of the lesser of two evils. The threat must be identifiable but may not be required to be imminent Always talk about the elements of the crime first-if there are no elements of the crime, there is nothing to prove Duress Must meet the following criteria o Another person threatened the defendant or a relative o Threat had to be imminent-courts strictly enforce this o Threat had to be deadly, or serious bodily harm Reasonably believe that succumbing to the threat was the only way to prevent the threat from being effectuated-no way out Must not have been at fault for being in the coercive situation Murder is not excusable under duress-no kill or be killed in Common Law Model Penal Code (2.09) provides an affirmative defense if the threat is one of reasonable firmness would have been unable to resist o Applies to all crimes o No where indicates immanency o Must be just a threat for bodily harm and does not indicate to whom the threats need to be aimed at Duress only applies to other human being actions-not natural issues An excuse defense-not necessary that the defendant has made the right decision Intoxication Any intoxication case o Voluntary intoxication (self induced)

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Gets drunk or takes drugs (even prescription medication) Not an excuse-ever Voluntary may still serve as a mens rea defense Voluntary intoxication may serve in the same way that mistake of law and fact serve May negate the mens rea and an essential element may not be available General Intent-not a defense to a general intent crime Specific Intent-most jurisdictions will hold that voluntary intoxication is a defense if at the time of the crime the individual is so intoxicated that he/she genuinely believes that no crime is being committed then the individual should be acquitted Montana vs. Egelhoff-supreme court held that such a statute is allowed o Involuntary intoxication Person ingested the intoxicant innocently Forced to take a drug If a person is taking a prescribed medication and an unforeseen unintended intoxicated response occurs such as an allergic reaction o the courts may be sympathetic to such circumstances and will allow the defendant to get off and will also apply this defense to general intent crimes as well as specific crimes o the courts will allow for the defendant to be insane if the intoxication has created such circumstances because the individual may not have been able to determine right from wrong Insanity Excuse-insanity is an excuse because we want to distinguish between the mad and the bad Sick vs. evil Still want to take these people off the street and provide medical care, but dont want to stigmatize these people Such people will be committed civilly committed until he/she is cured Insanity does not equal a mental illness but a person with a mental illness is not necessarily insane Insanity is a legal concept-all definitions require proof that the defendants has a mental disease or defect Definition-MNaghten-a defendant is insane if at the time of his act he was laboring under such a defective reason from a disease of the mind that he either did not know the nature and the quality of the act he was doing or he did not know what he was doing was wrong o First must have a mental illness o The defendant he did not know the nature and quality of the ACT o He did not know what he was doing was wrong

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o Cognitive based defense-not looking at volitional capabilities o Didnt appreciate the act o Doesnt know that killing wrong-split courts on the issue of whether it is legally wrong or morally wrong If a jurisdiction uses the moral wrong test-the test is not whether the person thought he was morally wrong, but rather society agrees whether he was morally wrong Irresistible impulse test-volition Person isnt to blame if the person couldnt control themselves Did the person lose the power to choose right from wrong Did the person lose the power to control themselves Model Penal Code Defendant is not responsible for their conduct if at the time of the crime the actor lacked the substantial capacity to appreciate the criminality or wrongfulness of the conduct or to conform the conduct to the requirements of the law Does not require total lack of capacity-only substantial Broader than MNaghten because it doesnt require impulse Durham Test-a person is not guilty of an offense if the persons criminal conduct is the product of a mental illness-but for the mental illness, the individual would not have committed the crime Diminished Capacity Excuse of diminished capacity o Mens rea version-looks and acts like voluntary intoxication-if person has mental illness but not insane, lacks the intent to commit a specific intent crime then can not be found guilty of committing a specific intent crime Negates the specific intent in the crimes o Partial responsibility-doesnt negate the mens rea Used to reduce the crime of murder to manslaughter Partial defense Person who is mentally ill is not as morally culpable of homicide as someone who is not mentally ill Homicide The killing of a human being by another human being-actus reus Two types of homicide o Murder o Manslaughter What do we mean by human being and when does a human stop being a human being and become a corpse? o Common Law-A human being becomes dead when there is permanent cessation of respiration (breathing) and pulsation (heart beating) o State statutes to be considered dead if the brain is considered deadregardless if heart is beating or breathing is taking place via artificial means

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o Look to whether there is a common law jurisdiction or statutes declaring death o Proximate cause could be influenced by those human beings on life support systems in common law jurisdictions o Life begins at time of birth-killed prior, no murder o BE CAREFUL-dates are important, year and a day rule. IF the death occurred a death and a day later, then no homicide has occurred Common Law Murder Degrees of Murder-never mention if discussing common law. This is a statutory provision First Degree o Homicides committed in a particular way-killing by lying in wait o Committed during the commission of another felon-felony murder o Willful, deliberate, and premeditated Willful-intent to kill Deliberate-to measure and evaluate what youre doing Premeditate-to think about beforehand Some courts have allowed that the premeditated killing by split second-the arguments are that every killing will be premeditated Other courts define premeditated as long enough to weigh out the actions o Deliberate and premeditated characterize a thought process undisturbed by emotion-a cold blooded killing Second Degree o Every other kind of murder o All other kinds of murder that are not listed under first degree murder Model Penal Code Does not have the concept of malice aforethought No degrees of murder o If defendant kills another purposefully Knowingly Recklessly manifesting in extreme indifference for the value of human life No felony murder rule Manslaughter An unlawful killing of a human being by another human being without malice aforethought Voluntary o Intentional manslaughter o Intent to kill manslaughter o The sudden heat of passion or provocation manslaughter Killed because of adequate provocation

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Common law felt that a provoked actors degree of culpability is less than for murder if he/she has been adequately provoked Adequate provocation is that which might render an ordinary person of average temperament liable to act irrationally and thus without due deliberation; responding out of passion rather than out of reason Heat of passion Must be in an act of passion Can not kill when cool and calm Model Penal Code-broader version o Killing that occurs as a result of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse is guilty of manslaughter rather than murder Heat of passion must have occurred before defendant had an opportunity to cool off The timing must be shown that a reasonable person would not have had the opportunity to cool down Simply being informed of the heat of passion issue was not enough to provoke Words alone never constitute provocation Murder can be diminished from murder to manslaughter if you can show that the person killed as a matter of diminished capacity

Involuntary o A killing that occurs as result of criminal negligence A commission of a lawful act which might produce death committed in an unlawful manner or without due caution or circumspection (language found in a lot of statutes) Person was doing a lawful act in a dangerous manner Usually the difference between voluntary and involuntary is knowledge that the crime is harmful Misdemeanor manslaughter or unlawful act version of manslaughter-an unintended homicide that occurs during the commission of an unlawful act not amounting to a felony constitutes common law involuntary manslaughter Model Penal Code-is a killing that occurs recklessly but doesnt manifest the extreme indifference to human life Negligent homicide-negligently kills another person At common law, both voluntary and involuntary were punished as the same

Rape Common law definition (controversial) o Sexual intercourse by a male with a female not his wife without her consent o Carnal knowledge forcibly and against her will
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Grievous bodily injury Resistance requirement-in order to constitute forcible rape Whatever the amount of force it took to overcome the victims resistance If the male overcame the resistance then it becomes forcible rape Or if the male used such force like a gun, knife, or threatened so she did not resist-non consensual sex would also constitute forcible rape If defendant only use moderate force and woman did not resist then did not have forcible rape o Statutory forms of rape Intercourse while woman is unconscious Intoxicated woman Very minor force which would not be considered in common law as forcible rape Marital exemption-no longer applies o The only real issue is whether the male constituted intercourse with a female-actus reus. o However, as the resistance is no longer a fighting back (even silence can constitute resistance) the mens rea becomes more important in these cases Larceny Common law larceny-the trespassory taking and carrying away of the personal property of another with the intent to steal o Trespass-wrongful o Trespassory taking-protects the possessory rights not the ownership rights Physically posses property Constructive possession-defeats custody issues because one converts custody into wrongful possession Employer gives an employee custody of employers property only for the use of the property on the job Fraud-obtains possession with false representation or a predetermined mens rea to commit theft; comes into possession that appears to be lawful transfer to the victim-sometimes referred to as larceny by trick Prosecutors have to figure out what the intent of the defendant is at the time defendant comes into possession of the property o Carrying away of-even so much as an inch of moving of the property is satisfied o Of another-can not be guilty of larceny of oneself; refers to possession though, not title. If you lease something to someone, they are in possession of the item legally, you are the owner, but you can not just repossess the item lawfully

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o With the intent to steal-defendant must intend to permanently deprive the party of the property If a person takes an item but does not have the intent to permanently deprive someone of the property (took it wrongfully-but without intent to steal), but changes their mind and decides to keep the property, then the defendant is guilty of continuing trespassory taking because the person is guilty of a trespassory taking every moment they are unlawfully in possession-which can convert into larceny-ONLY APPLICABLE TO TRESPASSORY TAKING Embezzlement Statutory crime-not common law Deals with a person receiving lawful not trespassory possession of property but then converts the property to his/her own use Bailor/bailee relationship is the most common type of embezzlement Look for issues that challenge custody vs. possession-if possession changes, then the crime may become larceny False Pretenses Obtaining property by false pretenses-trespassory possession and trespassory title occurs A misrepresentation to obtain not only possession, but also title Criminal Attempt Inchoate offenses or incomplete offenses Attempt-crime was not successfully completed either due to failure or arrested prior to completion Want to give police opportunity to stop the crime before it is fully committed If we let the police step in too early, then we may be arresting innocent people who seem suspicious We, living in a society of free will, want to give people an opportunity to change their mind and abandon their criminal activity Actus reus-if a police officer must wait, then effectively, the police can not stop the crime from occurring. It is clear that a person should be guilty and can be perpetrated before they commit the last act necessary At what point can the line be drawn where preparation ends and perpetration begins? It all depends Common law has devised a series of points based on how close the defendant is to completing the crime Tests focusing on what needs to be done to complete the crime may not find the person guilty of attempt while tests focusing on what the party has already done may justify conviction Physical proximity test-person can not be guilty of an attempt unless the actor has the apparent power to complete the crime immediatelyvery close to completing the crime Dangerous proximity How close physically to committing the crime

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How close temporally-how much time is there still to go How serious is the crime-the more serious, the less close the defendant has to be Equivicality or unequivicality Test Look at the defendants conduct and at a certain point, one may conclude unequivocally what the defendant was going to do Person is guilty of attempt because defendant went further than that of a reasonable person Model Penal Code Person has gone past the point of committing the crime if that person has taken a substantial step in the direction of committing the crime-even if there is a lot more to be done Substantial step must corroborate the defendants intent Will result in conviction a lot sooner than most other tests Mens rea-to be guilty of the crime of attempt, the person must have the specific intent to commit the crime in question Crucial thing to remember-intent to commit the target offense must be proven even if the intent is not required to be proven in the target crime must be proven for attempt

Defenses to Attempt Defense of impossibility-must draw a distinction between factual impossibility and legal impossibility o Common Law distinctions Legal impossibility occurs when the defendants conduct even if it was fully carried out as the defendant desired would not constitute a crime Factual impossibility occurs when the object of the defendant is a crime but some factual circumstance unknown to the actor prevented him from bringing about the crime o If the legal impossibility is abolished in the jurisdiction, then you need to go back an deal with the legality of the crime as your defense vs. the defense of legal impossibility of attempt o Its good to show both legal impossibility and factual-legal-defense, factualno defense o Abandonment-renunciation of criminal purpose (at common law, this is not a defense) If the line has been crossed for attempt but no arrest has been made and voluntarily renounces criminal activity then this could be argued as a defense Solicitation An accord crime which is completed sooner than attempt If a person requests, or encourages, or asks another person to commit a crime with the intent that the other person commit the crime, then the person who has made the

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request or encouraged the other person to commit the crime is guilty of solicitation the moment the request is made There must be requisite intent Does not require the other party to agree to commit the crime Can be guilty of solicitation by mail the moment the letter is sent-does not even have to arrive Conspiracy An agreement between 2 or more persons to commit an unlawful act Must have an intention to commit an unlawful act Many states by statute require an overt act in furtherance of the conspiracy but DOES NOT have to constitute an attempt The 2 or more persons must have the requisite mens rea o If one party is legally insane and can not fit the capacity of mens rea to commit the crime then no conspiracy o Whartons rule: can be no conspiracy if by definition it takes 2 or more people to commit a crime (example: selling marijuana) The fact that there is two people willing to commit a crime which normally takes only one person, then by involving additional parties, makes it more dangerous that 2 or more have the mens rea versus just one Accomplice Liability Person will be held accountable for the actions of another (accomplice liability) There is not crime of aiding and abetting a crime Accomplice is guilty derives liability from the actions of the perpetrator To become sufficiently involved, one must Principal in the first degree: perpetrator of the crime Principal in the second degree: accessory at the fact o Is at the scene of the crime helping in the act Accessory before the fact: not at the scene of the crime but assists in the crime o Giving the first degree perpetrator a gun to commit a crime is an example Elements of an accomplice o Actus reas-individual who solicits another to commit a crime, guilty of the crime committed. Note: if A solicits B to commit a crime and B does not do it, then A is guilty of solicitation of a crime. If A solicits B to commit a crime and B commits the crime, then A is an accomplice o A person may become an accomplice by furnishing an instrumentality used in the crime o A person may become an accomplice by providing moral encouragement o Does not matter if the perpetrator would have committed the crime without the accomplices involvement anyway, the accomplice can still be found guilty o It is not enough just to help commit the crime, must have mens rea. o First must intend to do the acts that constitute the assistance o Secondly, must promote the facilitation of the crime Complications in the mens rea of accomplices

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o If the person must have as his purpose to commit the assistance o If the person knows that a crime will be committed enough Natural and probable consequences doctrine o If a person intentionally assists in one crime and another crime results which is a natural or probable consequence then the person assisting is guilty of accomplishing both

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