CL ELEMENTS OF A CRIME: STEP BY STEP

Voluntary Act (or Omission of a Legal Duty)

Standard. A movement of the human body that is willed or directed by the actor. Conversely, not meeting ones legal duty to assist another can satisfy this element. Legal Duty Types. (1) Status relationship with the victim (parent); (2) contractual duty to the victim (bodyguard); (3) voluntary assumption of care that isolates a victim (telling onlooker you got it); (4) defendant created the peril (pushing a victim off the dock when the victim cannot swim); or (5) the duty is defined by the law.

Social Harm
Standard. The negation, endangering, or destruction of an individual, group, or state interest which is deemed socially valuable.

Mens Rea
Statutory Interpretation. General maxim is to construe penal statutes narrowly against the state. Mens Rea terms apply to all conduct/attendant circumstances in statute (they travel). Statutory interpretation starts at plain language, then goes to legislative history, and finally policy but stops at plain language if clear. Strict Liability. Determining: (1) No MR requirement is necessary (only the AR must be proven) OR (2) An attendant circumstance to which no MR is required to attach (statutory rape). Types of Strict Liability Offenses. (1) Public Welfare, i.e. selling alcohol to minors. Statutory STD must be reasonable and penalty should be relatively minor. (2) Regulatory Offense, i.e. statutory rape. Conduct is inherently dangerous. Specific Intent. Can be defined 3 ways: (1) Intent by the actor to commit some future act, separate from the AR of the offense (possession of marijuana with intent to sell); (2) Offense may require proof of a special motive or purpose for committing the AR (offensive contact upon another with the intent to cause humiliation); or (3) Offense requires proof of the actors awareness of an attendant circumstance (intentional sale of obscene literature to a person known to be under the age of 18). General Intent. Any mental state, whether expressed or implied, in the definition of the offense that relates solely to the acts that constitute the social harm (an intentional application of force upon another). Transferred Intent. Intent follows the bullet, or you intend all the consequences of your actions. Argument that this is unjust because there is a moral difference between crimes that TI would still punish (intending to shoot a dog and actually shooting a human being). Oblique Intent. Result is practically certain if the actor achieves his intended goal. Treat as if actor intended result. Wilful Blindness. Exists if actor: (a) is aware of a high probability of the existence of the fact in question; and (b) deliberately fails to investigate in order to avoid confirmation of the fact.

Culpability may be based on failure to take obvious and simple steps to confirm/dispel suspicions. At most, person is reckless, but doesnt have actual knowledge. Mistake of Law. Generally ignorance of the law is not a viable defense. Exceptions include: Entrapment by Estoppel. Reliance is not permitted for ones own / private counsels interpretation. Elements: (1) Reasonable reliance; (2) Official interpretation of the law; (3) Later proved to be incorrect; and (4) Obtained from a public official charged with making such an interpretation. Fair Notice / Lambert Principle. Ignorance allowed when a person commits a crime and the facts follow this pattern: (1) Law punishes omission (not registering presence), (2) Duty to act was imposed on basis of status instead of activity (being in LA), and (3) the offense was unlawful only by virtue of statute/ordinance. Different-Law Mistake. Claimed mistake relates to a law other than Ds charged criminal offense. i.e. Person charged with bigamy even though she thought she was legally divorced. Understands bigamy, but misunderstood divorce law. Analysis: Step 1: Determine nature of MR specific intent, general intent, or strict liability? Step 2: Apply rules below. Specific Intent: Different-law mistake, whether unreasonable or reasonable, is a defense if it negates the specific intent in the charged offense. See Cheek case. General Intent: Different-law mistake is not a defense. Strict Liability: Different-law mistake is not a defense. Mistake of Fact. Analysis: Step 1: Determine whether the crime is strict liability, specific intent, or general intent. Step 2: Apply rules below. Strict Liability: Mistake of fact cannot negate liability. Specific Intent: D not guilty if mistake of fact negates the specific intent portion of the crime (lacks intent required in definition of the offense). i.e. D generally believes property is abandoned mistake of fact negates larceny. [SUBJ Does not have to be reasonable] General Intent: D not guilty with reasonable mistake of fact (but not unreasonable). Moral Wrong Doctrine: Used with General Intent. A person who knowingly performs a morally wrong act assumes the risk that the attendant circumstances are not as they appear. Step 1: Determine if mistake was reasonable (unreasonable = still guilty). Step 2: If reasonable, look at facts through Ds eyes and guess their motive. i.e. What is the purpose of the Ds actions? Step 3: Evaluate morality of Ds conduct, based on facts as D reasonably believed them.

Actual Causation
But For Test. But for a defendants actions, would the social harm have resulted when it resulted?

Multiple Actual Causes. When a victims injuries or death are sustained from two different sources, any of the multiple wrongdoers can be found culpable if his act was "a" cause-in-fact of the injury or death. It is not necessary that any act be the sole and exclusive cause-in-fact of injury. Substantial Factors Test. Where two defendants act independently, each doing something sufficient by itself to cause the social harm to occur when it occurred. Only apply this test when it fits this definition! Accelerating a Result. Even if an outcome is inevitable e.g., everyone dies if defendants act accelerated death, he can be found criminally liable. E.g., a defendant shoots a terminally ill patient may still be found guilty of homicide since although the victims death was inevitable, it would not likely have occurred when it did but for the Ds unlawful act.

Proximate Causation
Analysis. (1) Whats the voluntary act? (2) Whats the social harm? (3) What actions occurred in between (query if each is an intervener)? Only analyze PC if (a) another action exists which could be intervening, and (b) AC is established. Standard. An act that is a direct cause of social harm is also a LC of it. Intervening Cause. An independent force (another but for cause) that operates in producing social harm. Only comes into play after the Ds voluntary act/omission. Supervening Cause. An intervening cause that breaks the chain of liability such that the D is not a PC of the social harm. Supervening Cause Tests. These turn an intervening cause into a supervening cause: LaFave Forseeability Test: Coincidence puts victim in certain place at certain time, allowing intervening cause to occur. Generally supersedes, unless the intervention was foreseeable. i.e. D carjacks V and leaves them on the highway, where X hits V. This was foreseeable because highways have traffic. Response happens because of the defendants actions. General rule is it doesnt supersede, unless Abnormal + Unforeseeable (breaks chain). Apparent Safety: When a Ds active force has come to rest in a position of apparent safety, the original risk came to rest. i.e. Wife leaves house after threatened and goes to parents house. Stays outside in the yard to not wake them up and freezes to death. Apparent Safety once she hit parents house. Free, deliberate, informed human assent: Voluntary FDI actions can supersede. Wife example above she chose to sleep out in the cold, knowing that she was only dressed in a light coat. De Minimis Contribution: Very minor but for factors are not valid for LC when there is a much more substantial factor leading to the harm. D non-fatally hits V. As V goes for stitches, he dies in a tornado.

Intended Consequences: If an intentional wrongdoer gets the result they desired and in the manner they desired, they should not escape criminal responsibility even if an unforeseeable event intervened. Omissions: No matter how unforeseeable an omission may be, this negative act will not cut off liability of an earlier positive act. In essence, nothing does not supersede something.

Concurrence of the Elements

Temporal Concurrence. D must possess the requisite MR at the same moment that their voluntary act (or omission) causes the social harm. i.e. D plans to kill V. D changes her mind, but innocently kills V while on a hike. D did not have the MR required at the time V died. Motivational Concurrence. Ds voluntary act (or omission) that caused the social harm must have been set into motion or impelled by the thought process that constituted the MR of the offense.

MPC ELEMENTS OF A CRIME: STEP BY STEP

Concurrence of the Elements Still applies Voluntary Act (or Omission of a Legal Duty) 2.01 (p. 967)
Standard. A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission of a legal duty. Omissions. Same as CL. Not Voluntary Acts. (a) a reflex or convulsion; (b) a bodily movement during unconsciousness or sleep; (c) conduct during hypnosis or resulting from hypnotic suggestion; or (d) a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual.

Social Harm What is the crime forbidding?

Analysis: Identify the material elements of the crime. ( Conduct = physical behavior, i.e. driving a car. Attendant Circumstance = Objective fact/condition that exists in the real world when the person engages in conduct. i.e. Person enters house and steals TV at night. At night is an AC that must exist for a crime that specifies at night. Result = Consequence or outcome caused by Ds conduct.) What is Material? Material element of an offense means an element that does not relate exclusive to the S/L, jurisdiction, venue, or to any other matter unconnected with: (i) the harm or evil sought to be prevented by the law defining the offense, or (ii) the existence of a justification/excuse for such conduct.

Mens Rea 2.02 generally (p.968)

Statutory Analysis. If the law does not distinguish culpability levels for different material elements, the prescribed culpability requirement applies to all material elements. Statutory interpretation implies that a legislature intends the consequences of what it omits / includes with the MPC Standard. Except for strict liability crimes, a person is not guilty of an offense unless he acted purposely, knowingly, recklessly, or negligently, as the law may require, with respect to each material element of the offense. Culp. Level Purposely Knowingl y Recklessl y Conduct
Ds conscious object is to engage in such conduct D is aware his conduct is of this nature D consciously disregards a Substantial and Unjustifiable risk that he is engaging in the proscribed conduct D fails to recognize a S+U

Attendant Circumstances
D is aware/hopes/believes the circumstance exists D is aware the circumstances exist D consciously disregards a S+U risk that the proscribed circumstances exist

Result
Ds conscious object is to cause this result D is aware that the result is practically certain D consciously disregards a S+U risk that the result will occur

Negligent

D fails to recognize a S+U

D fails to recognize a S+U risk

ly

risk he is engaging in this conduct

risk that the proscribed circumstances exist

that the result will occur

Purposely/Conscious Object. The reason why someone is acting. Can be their motive. Knowingly. Awareness can be actual or inferred through high probability of the existence of a fact. (MPC 2.202(7)) Recklessly/Conscious Disregard vs. Type of Risk. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation. SUBJ+OBJ Negligently. The (1) failure to recognize the (2) S+U risk, given Ds purpose and the circumstances known to him, involved a gross deviation from the standard of care a reasonable person would observe. Inferences. MPC 1.12(5) permits inference that an actor intended the obvious consequences of her voluntary acts. No MR Stated. If the law does not specify a Mens Rea, the minimum culpability required is reckless. Wilful Blindness. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist. Mistake of Fact/Law. Mistake is a defense if it negates the mental state required to establish any element of the offense. Caveat: Defense is not available if D would be guilty of another offense, had the circumstances been what D thought they were. Fair Notice. A belief that conduct does not legally constitute an offense is a defense when: The statute/law is (i) not known to the actor and (ii) has not been published or reasonably made available prior to the conduct. Reasonable Reliance. Defense if: (1) Person relies on an official, but erroneous statement of law. (2) Statement of law is official [List of what is official. 971]. (3) Reliance is otherwise reasonable based on a preponderance of evidence. Strict Liability. Not recognized by the MPC (minus violations 2.05)! Must apply MR culpability to all crimes. Violations are offenses that cannot result in imprisonment or probation, but may result in fines. i.e. Typical speeding ticket.

Actual Causation 2.03 (p.969) Proximate Causation MPC only has Actual Causation
Analysis: Under the MPC, the issue is whether an actor (a) (but for) caused the prohibited result (b) with the level of culpability required by the definition of the offense; and (c) the social harm actually inflicted must not be too remote or accidental in its occurrence from that which was designed, contemplated or risked.

Purpose/Knowing. When purposely or knowingly causing a particular result is an element of an offense, the element is not established if the actual result is not within the purpose or the contemplation of the actor, unless: Transferred Intent. The actual result differs from that designed or contemplated, only in the sense that a different person/property is injured or affected Actor Meant Greater Harm. The harm contemplated would have been more serious than that caused. Proximate Causation. The actual result involves the same kind of harm as that contemplated and is not too remote or accidental in its occurrence to have a [just] bearing on the actors liability. Reckless/Negligent. When recklessly or negligently causing a particular result is an element of an offense, the element is not established if the actual result is not within the risk of which the actor is aware or, in the case of negligence, of which he should be aware unless: Transferred Intent / Actor Meant Greater Harm / Proximate Causation.

CL HOMICIDE: OVERVIEW
Voluntary Act (or Omission of a Legal Duty)
Act or Omission

Social Harm
Result not wanted by society

Mens Rea
Strict Liability (Statutory Interpretation) Murder: Intent to Kill Murder: Intent to Cause SBI Murder: Depraved Heart Murder: Felony Murder Rule Voluntary Manslaughter: Rule of Provocation Involuntary Manslaughter: Reckless/Negligent Homicide Mistake of Fact Mistake of Law

Actual Causation
But For

Proximate Causation
Intervening/Supervening Factors

Concurrence of the Elements Defenses

Self Defense Intoxication Insanity

CL HOMICIDE: STEP BY STEP

Voluntary Act (or Omission of a Legal Duty)
Define it broadly enough to widen the timeline, making it easier to prove the elements concurred.

Social Harm
What bad result occurred?

Mens Rea
Murder 1: Wilful, Deliberate, Premeditated Wilful Acting with the purpose of causing the death of the victim. Deliberate Possessing a state of mind free from the influence of excitement or passion essentially killing someone in cold blood not in the heat of passion. Premeditated To think about beforehand. 7 Factors: (1) Want of provocation on the part of the deceased; (2) The conduct and statements of the defendant before and after the killing; (3) Threats and declarations of the D before and during the course of the occurrence giving rise to the death of the deceased; (4) Ill-will or previous difficulty between the parties; (5) The dealing of lethal blows after the deceased has been felled and rendered helpless; (6) Evidence that the killing was done in a brutal manner; (7) Nature and number of victims wounds Murder 2: Intentional killing not wilful, deliberate, or premeditated Murder: Intent to Kill (Express Malice) Deadly-Weapon Rule When a person intentionally uses a deadly weapon at a vital part of the human anatomy, the intent to kill that person can be inferred. Natural and Probable Consequences Rule (1) Ordinary people intend the natural and probable (or foreseeable) consequences of their actions; (2) the D is an ordinary person; and (3) therefore, D intended the natural and probable consequences of their actions. Murder: Intent to Cause Serious Bodily Injury (Implied Malice) Intent is to cause injury serious enough to fit the definition in the statute, which resulted in death. Murder: Depraved Heart (Implied Malice) Persons actions and consequences of which are (a) dangerous to and (b) manifest an extreme indifference to the value of human life. Murder: Felony Murder Rule Person is guilty of murder if a death results from conduct during the commission or attempted commission of any felony listed in statute (usually BARKM). Strict liability for the death caused; person need not intend the death.

Limitation: Inherently-Dangerous Felony The predicate felony must be dangerous in and of itself to human life. Two methods to determining whether the predicate felony is dangerous: (1) In the abstract. Ignore the facts of the specific case and consider whether the crime carries with it a high probability that death will result (or not). (2) Via specific facts. Consider facts and circumstances of specific case to determine if felony was inherently dangerous in the manner and circumstances in which it was committed. Limitation: Merger Doctrine Felony murder only applies if predicate felony is independent of, or collateral to, the homicide. If the felony is not independent, then the felony merges with the homicide felony murder rule doesnt apply. Examples: (a) When underlying felony = integral part of homicide -> merger (felonious assault merges with homicide that occurred). (b) When elements of underlying offense included in facts of the homicide -> merger (burglary with intent to assault). (c) When underlying felony requires proof of independent felonious purpose -> no merger (robbery). Any other intent beyond injury, we have no merger. If only intent is to injure for underlying felony, odds are its merger. Limitation: Res Gestae The conduct causing homicide must occur at some time and distance from the predicate felony, until the D gets to a place of temporary safety. Conduct must also share a causal link between the predicate felony and the homicide. i.e. Killing someone in a burglary. Voluntary Manslaughter: Rule of Provocation Test to determine if murder charges should be mitigated. Elements: (1) There must have been adequate provocation, which means it is calculated to inflame the passion of a reasonable person under the circumstances. [OBJ] Recognized provocations: (a) Discovery of adultery; (b) Mutual combat; (c) Assault & battery (real injury or real fear of injury); (d) Injuries to relatives or a 3 rd person; (e) Death from resisting illegal arrest Words Caveat: Words alone not enough, but informational words (informing someone of a fact that may count as adequate provocation (telling someone their child was abused, etc)) may be enough (2) The killing must have been in the heat of passion (any emotion that can unhinge ones reason) [SUBJ] (3) It must have been a sudden heat of passion that is, the killing must have followed the provocation before there had been a reasonable opportunity for the passion to cool [OBJ] (4) There must have been a causal connection between the provocation, the passion, and the fatal act Involuntary Manslaughter: Reckless / Negligent Homicide Gross recklessness/negligence.

Actual Causation
But For / Acceleration / Substantial Factor

Legal Causation
Intervening Cause -> Superseding Tests (LaFave Foreseeability / Apparent Safety / FDI Human Assent / De Minimis Contribution / Intended Consequences / Omissions)

Defenses
Self Defense / Insanity / Intoxication

MPC HOMICIDE: OVERVIEW

Voluntary Act (or Omission of a Legal Duty)
Voluntary act / omission: MPC 2.01 (p. 967)

Social Harm
Conduct / Result / Attendant Circumstances: MPC 1.13 (p.967)

Mens Rea
General Rules: MPC 2.02 (p. 968) Murder: MPC 210.2 (p. 1000) Felony Murder: MPC 210.2(b) (p. 1000) Manslaughter: MPC 210.3 (p. 1000) Extreme Emotional Disturbance: MPC 210.3(b) (p. 1000) Negligent Homicide: MPC 210.4 (p. 1000) Mistake of Fact/Law: MPC 2.04 (p. 970)

Causation
Cause in-Fact: MPC 2.03 (p. 969)

Concurrence of the Elements

MPC HOMICIDE: STEP BY STEP

Voluntary Act (or Omission of a Legal Duty)
Define it broadly enough to widen the timeline, making it easier to prove the elements concurred.

Social Harm
Conduct / Result / Attendant Circumstances prohibited

Mens Rea
Murder. When the actor unjustifiably, inexcusably, and in the absence of a mitigating circumstance, kills another: (1) purposely or knowingly; or (2) recklessly under circumstances manifesting extreme indifference to the value of human life. Felony Murder. MPC 210.2(1)(b) Rule is subsumed in MPC as it provides that extreme recklessness is non-conclusively presumed if the homicide occurs while the actor is engaged in, or is an accomplice in, the commission or attempted commission of, or flight from, one of the dangerous felonies specified in the statute. Manslaughter. MPC 210.3(1)(a)-(b) Guilty of manslaughter if person: (1) recklessly kills another; or (2) kills another person under circumstances that would ordinarily constitute murder, but which homicide is committed as the result of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse. Extreme Emotional Disturbance. Was there a reasonable explanation or excuse for the extreme emotional disturbance? Note: NOT ASKING if there was an excuse for the homicide -> just the emotional disturbance. (1) Extreme emotional disturbance [SUBJ] i.e. determines that the particular D did in fact act under EED, that the cause is not contrived or sham. (2) Reasonable explanation or excuse [OBJ] i.e. determined by viewing SUBJ, (a) internal situation D found themselves + (b) assuming facts as D believed them to be, and then assessing from a RPP STD. Negligent Homicide. Liability cannot be founded on criminal negligence because there is no conscious disregard of a substantial and unjustifiable risk.

Causation
But For Test + Proximate MPC analysis

CL RAPE: STEP BY STEP

Voluntary Act (or Omission of a Legal Duty)
Vaginal Intercourse. By force or threat of force. What is reasonably calculated to cause apprehension? If D used or threatened to use extreme force likely to cause serious injury or death, element is satisfied. Moderate force requires that the force overcomes the females resistance for rape to stand. Traditional Force Test (1) Subjective apprehension of serious harm and (2) some conduct by the male that places the victim in reasonable apprehension for her safety. California Rule Prosecution must show D used physical force of a degree sufficient to support a finding that the act of sexual intercourse was against the will of the victim. New Jersey Rule (MTS case) Any force used, even the force inherent in the sexual act itself, justifies the force element. Two questions asked: (1) What level short of an express yes is sufficient to prove permission? Needs to be some act designed to allow the sexual act. (2) What conduct renders permission tainted? Against the will of the victim. Traditional Resistance Requirement Female must resist unwanted sexual advances. Degree of resistance required must be physical resistance (no is not enough), which is overcome by force. Reasonably interpreted threats of death/GBI allow physical resistance to not be required. Modern Resistance Requirement (a) Earnest resistance, or (b) resistance sufficient to establish that an act of sexual intercourse was without consent and by force, or (c) resistance that is reasonable under the circumstances. Without consent. Test Did the woman SUBJ, personally agree to sexual act? CL doesnt distinguish unconscious/physically helpless/mentally incompetent victims because this element is a catch-all for them. Consent Issues. (a) If the male honestly believes the female has given consent mistakenly, it may raise mens rea issues; (b) Consent given under duress is not valid, but duress at the fringes is hard to draw a line on; or (c) Even if voluntary consent is given, it can be withdrawn. If the female withdraws consent before sexual intercourse, the male is guilty of rape if he continues.

Social Harm Mens Rea

General Rule. A person is not guilty of rape if he entertained a genuine and reasonable belief that the female voluntarily consented to intercourse with him. This rule conforms with ordinary common law mistake of fact principles relating to general-intent offenses. Test: At a minimum, D must be criminally negligent with every element of the offense. i.e. The man should have known the woman was not consenting.

Actual Causation Proximate Causation

MPC RAPE: STEP BY STEP

Voluntary Act (or Omission of a Legal Duty)
Sexual intercourse / female not his wife -> sub 1 / sub 2 / sub 3 (a) did D compel female to submit by force/threats? (b) were the threats sufficient under MPC? / sub 4

Social Harm
Conduct / Result / Attendant Circumstances

Mens Rea
Reckless+ Standard Mistake of Law/Fact

Causation
But For + Proximate Analysis

Concurrence of the Elements Defenses

Necessity / Duress / Insanity / Intoxication

Rape Elements. MPC 213.1(1) A male is guilty of rape if, acting purposely, knowingly, or recklessly regarding each of the material elements of the offense, he has sexual intercourse with a female under the following circumstances: (1) The female is less than ten years of age; (2) The female is unconscious; (3) The male compels the female to submit by force or by threatening her or another person with imminent death, grievous bodily harm, extreme pain or kidnapping; or (4) The male administers or employs drugs or intoxicants in a manner that substantially impairs the females ability to appraise or control her conduct. Marital Exemption. MPC 213.6(2) Husband cannot be charged with rape of his wife. MPC/Common Law Similarities. (a) Rape is gender-specific, i.e. only males can commit the offense, and only females are victims. (b) MPC affirms martial exemption. MPC/Common Law Differences. (a) Sexual intercourse is broadened to include oral, anal, and vaginal penetration. (b) Rape is defined in terms of the males acts of aggression or overreaching, rather than in negative terms of the females lack of consent. No resistance requirement. (c) Rape is committed if the female submits as the result of violence/threat of kidnapping directed at her or a 3rd party. Fraud in the factum is not rape, but gross sexual imposition.

CONSPIRACY: STEP BY STEP

Actus Reus
Rule. Agreement between two or more persons to achieve an object prohibited by the applicable law of conspiracy. Prooving AR. Conspiracy may be inferentially established by showing the relationship, conduct, or circumstances of the parties, and the overt acts of the co-conspirators. Among those circumstances are: (a) knowledge of the commission of the crime; (b) association with alleged conspirators; (c) presence at the scene of the crime; or (d) participation in the object of the conspiracy. Execution of the crime thus represents performance of the agreement. The offense does not substitute for the agreement. Overt Act. Any act committed in furtherance of the conspiracy by any co-conspiracy. Bilateral v. Unilateral. Bilateral = two or more persons. Unilateral = one person agrees, even if the other persons agreement is not real.

Mens Rea
Standard. (1) Intent to agree; and (2) Intent for conspiracy to succeed (achieve common prohibited objective). Pinkerton Rule. A conspirator is liable for all offenses committed by other conspirators: (1) in furtherance of the conspiracy (stealing a car to use as a getaway car), (2) within scope of the original conspiracy, and (3) that were reasonably foreseeable. Proving Conspiracy. Need both knowledge of the illegal use of goods/services + intent to further that use. Knowledge is a question of fact. Direct evidence proving intent/agreement can be shown through suppliers participation, such as advice from the supplier of legal goods/services to the user of those goods/services on their use for illegal purposes. How to infer intent/agreement from the circumstances: (1) Charging more to criminals (stake in the crime); (2) No legitimate use for goods/services; (3) Dangerousness of product; (4) % of business derived from crime; or (5) Seriousness of the crime (heroin sales vs. prostitution for a telephone service operator -> duty to act is far stronger for felonies than misdemeanors)

Actual Causation / Proximate Causation

Conspiracy is a conduct crime and the social harm of a conduct crime generally involves the increased risk to society resulting from the defined conduct. Thus, there is no causation issue because the prohibited conduct is defined in such a way as to be the conduct that results in the social harm.

Defenses
CL Abandonment. The crime of conspiracy is complete the moment the agreement is formed or, in some jurisdictions, once an overt act is committed in furtherance of a criminal objective. However, if a person withdraws from a conspiracy, he may avoid liability for subsequent crimes

committed in furtherance of the conspiracy by his former co-conspirators if he communicated his withdrawal to each co-conspirator. MPC Abandonment. The MPCs abandonment defense to the crime of conspiracy is more onerous than that of the common law as it requires the conspirator to not only renounce his criminal purpose but to also thwart the success of the conspiracy under circumstances demonstrating a complete and voluntary renunciation of his criminal intent.

JUSTIFICATION DEFENSES
Justification Definition Conduct that is otherwise criminal, which under the circumstances is socially acceptable and deserves neither criminal liability nor even censure. Focuses on the act. Negates social harm. Theories for Justification o Public Benefit Theory Conduct that benefits society/performed in public interest is justifiable. The benefit to society is the underlying motive of the actors conduct, not that it simply benefits society. Moral Forfeiture Theory Bad actor forfeits a right non-consensually based on their actions. Forfeiture /=/ waiver (cannot waive right to life). Forfeiture occurs as a result of undesirable conduct, allowing actions taken against them to be justified. i.e. Fleeing felon killed by shopkeeper. Moral Rights Theory Conduct may be justified on the ground that the actor has a right to protect a particular moral interest. Actor has a right to protect their threatened moral interest. i.e. Self-D Superior Interest/Lesser Harm Theory Authorizes conduct when the interests of the D outweigh those of the person they harm. Interests of the parties are balanced. i.e. If D trespasses into Vs house to avoid a tornado, D is justified because human life > property.

CL SELF-DEFENSE [JUSTIFICATION ]
Elements of Self-Defense o (1) D was not the aggressor Definition One who threatens unlawfully to commit a battery or uses words/actions calculated to bring about an assault. Factors constituting aggression: (a) Person is aggressor if he merely starts a non-deadly conflict (b) Incorrect to state that the first person who uses force is always the aggressor person responding physically to an assault is not aggressor (c) Issue of whether a D lost the right of self-defense in a conflict ordinarily is a matter for the jury to decide.

Removing the Aggressor Status This is an indirect way to show someone was not an aggressor, but may be necessary! Two different examples: Deadly Aggressor Person whose acts are reasonably calculated to produce fatal consequences. Only way such a person may regain the right of self-defense is by (a) withdrawing in good faith from the

conflict and (b) fairly communicating this fact, expressly or impliedly, to his intended victim. Non-Deadly Aggressor Bob makes a non-deadly assault to Jim. Jim responds with deadly force. By law, Bob immediately regains right of self-defense, even though he was the initial aggressor. He may still be liable for the initial assault.

(2) Necessity (actual/apparent threat) Definition Must be an actual or apparent threat to prompt use of force in self-defense. Retreat Rule If an innocent person is attacked and only has two viable options (retreat or deadly force), many jurisdictions allow them to use deadly force under a stand your ground provision. Proportionality Rule Person is not justified in using force that is excessive in relation to the harm threatened. Deadly Force Only justified in self-protection if the actor reasonably believes that its use is necessary to prevent imminent and unlawful use of deadly force by the aggressor.

(3) Reasonable belief SUBJ Component Did D subjectively believe they needed to use X level of force in self-protection? OBJ Component Ds belief must be one that a reasonable person in the same situation would have possessed. (Justified even if mistaken as long as objectively reasonable at time) Factors that may be relevant to the defendants situation or circumstances include: (a) the physical movements of the potential assailant; (b) any relevant knowledge the defendant has about that person; (c) the physical attributes of all persons involved, including the defendant; or (d) any prior experiences which could provide a reasonable basis for the belief that the use of deadly force was necessary under the circumstances.

(4) Imminent threat Definition Threat is said to be imminent if it will occur immediately or at the time of danger. Danger must be pressing and urgent. Not imminent if threat relates to a later time. Even if danger seems inevitable, use of force is premature until the threat is immediate.

Imperfect Defense Claims Normally self-defense is a full defense. Two situations that are not full:

o o

Unreasonable Mistake of Fact Guilty of manslaughter instead of murder. Non-deadly Aggressor When deadly force is responded, the NDA must retreat to any known place of complete safety before using deadly force.

Self-Defense Rationale Classified as a justification in Utilitarian terms because killing in valid self-defense is socially desirable. If someone must die in a deadly conflict, it should be the aggressor. Non-Utilitarians justify because aggressor who threatens an innocent person forfeits his right to life. Second, personal physical autonomy is highly valued by society. Third, right to life of the aggressor is less than the innocent victim. Battered Woman Syndrome 3 types of situations: o Confrontational Homicide Woman kills husband during a period of battery/abuse. Self-defense is allowed here because it fits the standard model of the defense. Non-Confrontational Homicide Woman kills husband while he is asleep or during a lull period in abuse. Self-defense often defeated because the imminent threat element fails. State v. Wanrow Man tries to abduct womans son and allegedly gave daughter a STD. Mother calls friends over for protection/safety. Man comes to house and there is a shouting match between all the adults. Mother ends up shooting man when he appears behind her unexpectedly. Self-defense not allowed due to imminent threat elements failure.

3rd Party Hires Woman hires someone to kill her husband. Self-defense never allowed.

Battered Woman Evidentiary Issues Battered wife may introduce evidence of abuse by husband, but cannot take the stand herself (incorrectly focuses jury on her character and not her actions). Innocent Bystanders Courts apply a transferred-justification doctrine, similar to the transferred-intent rule: a defendants right of self-defense "transfers" (just as intent to kill does) from the intended to the actual victim. While the defense is absolute in some jurisdictions, other courts do not treat this rule as absolute. If the defendant, acting justifiably in self-defense against an aggressor, fires a weapon "wildly or carelessly," thereby jeopardizing the safety of known bystanders, some courts hold the defendant guilty of manslaughter (or of reckless endangerment if no bystander is killed), but not of intentional homicide.

MPC SELF-DEFENSE [JUSTIFICATION ]

Definition MPC 3.04(1) Person is justified in using force upon another person if he believes that such force is immediately necessary to protect himself against the exercise of unlawful force by the other individual on the present occasion. Elements of Self-Defense o Ds subjective belief Test MPC 3.09(2) Even though the MPC looks at the Ds SUBJ belief, if D is reckless or negligent regarding the facts relating to justifiability of conduct, defense is unavailable when culpability of crime is reckless or negligent. Effect is to put Ds SUBJ belief through an OBJ test of whether belief was reasonable against the culpability level of the crime. i.e. D negligently believes V is about to kill him. D will be allowed defense if crime charges for purposely, knowingly, or recklessly, but will not be allowed if crime charges for negligently.

Immediacy of threat Definition Allows defense sooner than Common Law. i.e. Wife can stab husband who says hes going for a gun as he goes, instead of having to wait until he actually gets the gun and presents a threat at Common Law.

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Necessity Unlawful force threatened Definition MPC 3.11(1) Any force that is not legally used against a person.

Deadly Force o Definition MPC 3.11(2) Deadly force is force used for the purpose of causing or that the actor knows to create a substantial risk of causing death or serious bodily injury. Allowed Situations MPC 3.04(2)(b) Deadly force is only allowed to protect himself from: (1) Death; (2) Serious Bodily Injury; (3) Forcible Rape; or (4) Kidnapping. Aggressors MPC 3.04(2)(b)(i) Prohibits use of deadly force by a person who, with the purpose of causing death or serious bodily injury, provoked the use of force against himself in the same encounter. Narrower than Common Law because it does not include within its scope the non-deadly aggressor. Aggressors lose right to self-defense regardless of whether the response is deadly force or non-deadly force.

Retreat MPC 3.04(2)(b)(ii) A person may not use deadly force against an aggressor if he knows that he can avoid the necessity of using such force with complete safety by retreating. Castle Rule Still applies as an exception in the MPC, but is required if the actor was the initial aggressor, and wishes to regain his right of self-defense.

CL NECESSITY [JUSTIFICATION ]
Common Law Elements of Necessity o (1) Act must have been done to prevent an imminent significant evil Test (Existence of Significant Evil) D must be faced with a clear and imminent danger. Test (Acts Causal Link) D must reasonably have a causal link between his act and the harm to be averted. i.e. Inmate escaping prison due to a massive prison fire.

(2) There must have been no adequate alternative Any legal alternative negates the necessity defense. i.e. Not accepting help from people stopping on the highway and instead illegally using state highway equipment.

(3) Harm caused must not have been disproportionate to harm avoided Balancing Test, Step 1: Ds actions should be weighed against the harm reasonably foreseeable at the time, rather than the harm that actually occurs. Balancing Test, Step 2: Given the facts as they reasonably appear, was Ds value judgment correct? Interpreted by judge/jury.

(4) D must not have substantially contributed to the significant evils existence If D recklessly starts a fire and burns a farmers field to create a fire break, no necessity defense.

Use of Necessity Most often used when a person must violate the law/incur a relatively minor harm in order to avoid a much greater harm due to external factors outside his control. o Murder Necessity generally cannot be used for murder. Dudley v. Stephens 3 men eat a sickly boy while stranded at sea. Necessity not permitted because the harm they were seeking to avoid (their own deaths to starvation) was not yet imminent or certain just probable.

MPC NECESSITY (CHOICE

OF

EVILS) [JUSTIFICATION ]

MPC Elements of Necessity/Choice of Evils MPC 3.02(1) A persons conduct is justified if: o (1) He believes that his conduct is necessary to avoid harm to himself or another;

(2) The harm to be avoided by his conduct is greater than that sought to be avoided by the law prohibiting his conduct; and (3) No legislative intent to exclude the conduct in such circumstances plainly exists.

EXCUSE DEFENSES
Excuse Definition The actor is not morally culpable for wrongdoing. Focuses on the actor. Theories for Excuse o Deterrence Theory Because criminal liability is limited to voluntary wrongdoing, people can plan their actions in accordance with the law if they wish to avoid sanctions. Causation Theory A person should not be blamed for her conduct if it was caused by factors outside her control. Character Theory Punishment should be proportional to a wrongdoers moral desert, which is measured by a wrongdoers moral character. Free Choice / Personhood Theory Person may be blamed for free choice conduct. Free choice requires that the actor has the substantial capacity and fair opportunity to: (1) Understand the facts relating to her conduct; (2) Appreciates that her conduct violates societys mores; and (3) Conform her conduct to the dictates of the law. Lacking substantial capacity = person suffers from serious internal disability. Lacking fair opportunity = some external factor is acting upon her on this particular occasion such that it is unjust to blame her for her wrongful conduct.

DURESS [EXCUSE]
Common Law Duress Elements No intentional killing! o o o (1) Immediate threat of death/serious bodily injury (2) Reasonable fear that the threat will be carried out (3) No reasonable opportunity to escape the threatened harm

MPC Duress Elements MPC 2.09, intentional killing allowed! o o o (1) Coercion (2) Use of/threat of unlawful force (2) Person of reasonable firmness could not resist (in his situation)

CL INTOXICATION [EXCUSE]

General Definition A disturbance of mental or physical capacities resulting from the introduction of any substance into the body. Intoxication Analysis o o o Step 1: How did the D become intoxicated? Step 2: In what way does the D claim that his intoxication affected his culpability? Step 3: What type of offense is the D charged with? (General intent, specific intent, or strict liability?)

Voluntary Intoxication Definition Intoxication is voluntary if the actor knowingly ingests a substance that he knows or should know can cause him to become intoxicated, unless the substance was a prescribed medication or he was coerced to ingest it. o Unexpected Outcomes No sympathy if the drug has a different outcome than is anticipated by the voluntarily-ingesting actor. i.e. Pot smoker unknowingly ingests PCP from a joint and assaults someone with a deadly weapon in the PCP-caused unconscious state cannot claim unconsciousness as a defense.

Voluntary Intoxication General Rule Not a defense to general intent crimes. May be a defense to specific intent crimes if at the time of the crime, D did not possess the specific intent required.

Involuntary Intoxication Definition If the actor is not to blame for becoming intoxicated. Four ways: o o o o (1) If the person is coerced to ingest an intoxication. (2) If the person ingests an intoxicant by innocent mistake. (3) If the person becomes unexpectedly intoxicated from a prescribed medication. (4) Pathological intoxication is involuntary. PI is a temporary psychotic reaction, often manifested by violence, which is triggered by consumption of alcohol by a person with a pre-disposing mental or physical condition. Defense only applies if person had no reason to know reaction would occur.

Involuntary Intoxication General Rule Entitled to acquittal in all of the circumstances where voluntary intoxication is a defense. Also may be excused from general intent offenses.

MPC INTOXICATION [EXCUSE]

MPC Intoxication Definition MPC distinguishes between (1) self-induced intoxication; (2) pathological intoxication; and (3) intoxication that is not self-induced. MPC Intoxication General Rule Generally follow two circumstances:

(1) MPC 2.08(1) Any form of intoxication is a defense if it negates an element of the offense. Exception Voluntary intoxication that renders person unaware of a risk which he would be aware of when sober satisfies a reckless culpability requirement.

(2) MPC 2.08(4) Pathological intoxication / intoxication that is not self-induced are affirmative defenses if the intoxication amounts to insanity under the MPC.

INSANITY [EXCUSE]
Legal Definition of Insanity Any abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behavior controls. Distinct from medical concept. Insanity Rule Objectives (1) Accurate -> moral, scientific. (2) Comprehensive. (3) Let jury decide. MNaghten Test A person is insane if, at the time of her act, she was laboring under such a defect of reason, arising from a disease of the mind, that she: o o (Prong 1) did not know the nature and quality of the act that she was doing; or (Prong 2) if she did know it, she did know that it was wrong (she did not know right from wrong).

MNaghten Test Clarifications o Know Defined Narrow = if D SUBJ knew what she was doing and can acknowledge it was wrong. Broad = if D can evaluate her conduct in terms of its impact on others and appreciate its wrongfulness. Nature and quality of the act Defined If D squeezes someones neck thinking it is a lemon, she lacks knowledge. If D does so knowing it is a neck, but does not appreciate that her act is causing pain, she is sane in narrow know jurisdictions. Wrong Defined Can mean knowledge of a moral (shouldnt do act) or legal (against law) wrong. Moral Right-and-Wrong STD Issue is whether D knowingly violated societal STDS of morality. Deific Decree Doctrine Person believing to be acting on Gods orders is insane.

MNaghten Test Criticisms Four general criticisms: o o (1) Test is grossly unrealistic because it does not recognize degrees of incapacity. (2) Test places unrealistically tight shackles upon expert testimony full background of Ds state of mind often not allowed in confines of evidence allowed.

(3) Test disregards mental illnesses that affect volition or possibility that a person may be able to distinguish right from wrong, yet be able to control her behavior. (4) Test too narrow in penological theory. If a person knows what she is doing is wrong but cannot control her conduct, she is undeterrable; therefore, punishment is inefficacious.

Irresistible Impulse Test Acts as a 3rd Prong to the MNaghten Test. Generally speaking, a person is insane if, at the time of the offense: o o (Prong 1) she acted from an irresistible and uncontrollable impulse; (Prong 2) she lost the power to choose between the right and wrong, and to avoid doing the act in question, as that her free agency was at the time destroyed; or (Prong 3) her will has been otherwise than voluntarily so completely destroyed that her actions are not subject to it, but are beyond her control.

Irresistible Impulse Test Criticisms o Too Narrow It is improper to exclude from its coverage non-impulsive behavior (i.e. behavior that is the result of brooding/reflection), and that it is psychologically nave to require total incapacity. Abolition If an exceptionally strong urge to commit a crime should excuse, it should excuse whether the person suffers from a mental illness or not. Lack of volition is not a good basis for excuse.

ALI/MPC Test MPC 4.01(1) Person is not responsible for her criminal conduct, if at the time of the conduct, as a result of a mental disease or defect, she lacked substantial capacity to: o o (1) appreciate the criminality/moral wrongfulness of her conduct; or (2) to conform her conduct to the requirements of the law.

Product Test A person should be excused if her unlawful act was the product of a mental disease or defect. o Step 1: Question of fact as to whether D was suffering from a mental disease/defect Step 2: If so, whether the disease caused the criminal conduct in a but for sense.

Product Test Criticisms Fails to define critical term of mental disease/defect, leaving it up to experts during trial. Allows for experts to usurp the jurys authority by giving them near infinite control over the outcome. Federal Test Person is excused if she proves by clear and convincing evidence that, at the time of the offense, as a result of a severe mental disease or defect, she was unable to appreciate: o (1) the nature and quality of her conduct; or

(2) the wrongfulness of her conduct.

Abolition of the Insanity Defense Arguments o Abuse Incorrect claim is that criminals will use it and get off free. Data suggest it is rarely used / wins. Counter-Deterrence Normal people may think insanity defense will get them off for a crime. Conflict of Perspectives Criminal law and psychiatry cannot mix since their beliefs are very different, and thus the scope of expert testimony should be limited (man is a creature of forces beyond his control vs. man has free will to choose). Deviation from Cultural Norm Insanity is just a way for society to describe what it considers strange. However, defense usually based on clear cases that a person is suffering a truly aberrant condition. Equity Other factors such as abuse as a child are equally debilitating yet are not excuses.

PUNISHMENT POLICY
Utilitarianism Punishment should only be used if some good is achieved by the act. Looks to effects in the future to justify the imposition of punishment. Main goal is to lower crime rate. o Deterrence (1) Specific deterrence (Deterring person), (2) General deterrence (Deterring others). To be effective, deterrence requires that a D receives (a) credible ([i] D thinks he will be captured and [ii] D believes that he will be punished as threatened) (b) notice of a threat of punishment. Incapacitation Criminals are more likely to commit crime again. Want to either (1) punish for length periods of time every person committing the same crime equally, or (2) assume that they can accurately identify those who are most likely to reoffend and impose on them length periods of incarceration. Rehabilitation Offenders can be changed into non-offenders if given proper treatment.

Retribution Just desserts. Criminals deserve punishment and it should be imposed even if it serves no greater good purpose. No more than an eye for an eye in punishment, but question as to whats proportionate.

LIMITATIONS ON CRIMINAL LAW

Principle of Legality A defendant cannot be convicted of a crime unless the legislature has enacted in advance a statutory definition of the offense. Promotes fair warning (due process) so a person knows whats wrong. o 3 Core Tenets: (1) Criminal Statutes should be understandable to reasonable law-abiding persons (2) Criminal statutes should avoid delegating basic policy matters to police/judge/jury on ad hoc or subjective bases (3) Rule of Lenity

Ex Post Facto US Constitution protects against legislatures enacting statutes that criminalize acts that were innocent when done or that increase the severity of the crime or the punishment after the fact.

Beyond a Reasonable Doubt (BRD) The standard by which a criminal offenses elements must be proven for a defendant to be held liable. Anywhere between 76-95% has been deemed passable as BRD. Void for Vagueness Laws that are (1) so vague that ordinary people could not reasonably determine their meaning and application from the language in the statute or

that (2) confer excessive discretion on law enforcement / judges are unconstitutional. Courts can narrow but not expand statutes. Rule of Lenity Ambiguity in the statutory language should be resolved in the defendants favor. o General Rule Most courts only apply this rule when all other strategies for interpreting a criminal statute fail to make its meaning clear. Plain Language Rule If the plain language of a statute is unambiguous, interpretation stops there.