Criminal Law Outline

Justification of Punishment Retributivism: Punishment is justified because people deserve it for acting
immorally/past-looking I. Retribution a. Degrees of culpability based on circumstance i. Regina v. Dudley and Stephens: murder of shipmate for food; was it less morally wrong b/c of circumstance? ii. U.S. v. Bergman: wealthy banker defrauding govt.; was this more morally wrong b/c of his status and advantages? II. Idea of proportionality of punishment

Utilitarianism: Punishment is justified because it serves a purpose/forward-looking

I. Deterrence: Reduction of future crime a. Specific deterrence: D decides not to commit future crimes b. General deterrence: Other people see punishment, decide not to commit crime i. Regina v. Dudley ii. U.S. v. Bergman iii. U.S. v. Jackson: is there a difference in deterrence from life imprisonment and a very long sentence? (concurring) Incapacitation: prevention from re-offending a. Punish every offender equally or b. Attempt to identify potential re-offenders and incapacitate them i. Question of fairness ii. Sentences based on individual characteristics 1. U.S. v. Jackson: career bank robber given life sentence for prevention did not consider age a. Would he really rob once he is old (concurring)? c. Does not have to be in traditional form of jail Rehabilitation: offenders can be changed/treated a. Idea that crime is psychological disturbance b. Individuality General Critiques of Utilitarianism: a. Not fair to use defendants for greater purpose

II.

III. IV.

Related Ideas: I. Justification v. Excuse a. Justification: sometimes w/ justification it is said that no crime has been committed i. Self-defense b. Excuse: crime was committed, but person is excused; circumstances of compulsion can excuse a person i. Insanity, mental illness 1

II. III. IV.

Should punishment consider individual factor such as age/race? a. U.S. v. Jackson Public shaming Extraordinary Family Circumstances a. U.S. v. Johnson: mother w/ four young childrens sentence reduced b/c of extraordinary family responsibilities b. Utilitarian: looking at family situations greater good of society c. Retribution: less culpability when there is good excuse

Criminal Conduct: Culpability

Actus reus plus mens rea

Actus Reus (objective voluntary act)

Voluntary Conduct willed by actor

Elements (MPC 1.13):

I. Conduct: physical behavior of D a. All crimes must have conduct element (act or omission) b. MPC: 2.01(1): only liable for voluntary acts or omission to perform act of which person is physically capable i. Voluntary v. involuntary acts under MPC 1. Habit: voluntary 2. Possession: voluntary only with awareness 3. Hypnosis: involuntary 4. Sleepwalking: involuntary c. Martin v. State: police brought drunk man to highway; court ruled act must be voluntary to be crime d. People v. Newton: man kills police officer when unconscious; not voluntary so not culpable e. People v. Decina: man kills another b/c he has epileptic seizure while driving; aware of condition and voluntarily drove so culpable f. Robinson v. California: status of narcotics addict whether addiction is crime; No, cannot punish people for thoughts (cruel and unusual punishment) g. Powell v. Texas: builds on Robinson; alcoholic drunk in public can be punished; not unconstitutional to punish for act that is compelled by the disease of addiction i. up to state law states can pass legislation that makes acting on addiction an involuntary act and thus, not punishable Circumstance: objective fact or condition Result: consequence/outcome of conduct

II. III.

Omission
I. MPC 2.01(3): No liability for omission unless (a) the omission is expressly made sufficient by the law defining the offense; or (b)a duty to perform the omitted act is otherwise imposed by law 2

II.

a. Pope v. State: woman not culpable for child abuse when she watched mother beat child to death b/c she was not responsible for supervision of child under statute, thus no legal obligation b. No duty for good Samaritan behavior c. Jones v. U.S.: whether woman who failed to nourish child at her house had duty to act i. Duty to act when: 1) there is a statute that obligates you to care for another; 2)if you stand in a certain relationship with the child (parent-child relationship); 3) if there is a contractual obligation; 4) or one has voluntarily assumed care for another and has secluded that person d. Barber v. Superior Court: act v. omission when doctor removed patient from life support at familys request (homicide?) i. Omission of further treatment physician has no duty to continue treatment once it is proven to be ineffective, so not homicide ii. If it was an act, it would be homicide MPC 2.01(3)(b): crime if civil law imposes legal duty to act

Mens Rea
Must look at mens rea for each element of the crime D must have mens rea for each element to be convicted. Every statute does not always have circumstance, conduct and result. In an exam, identify which apply, then figure out which mens rea is required for each element. You can do this without looking at facts. Element analysis is not related to facts, but what is written into the statute. Once you look at the statute, you go to facts and figure out if D had the mens rea required in each element of the crime Culpable if you had a choice in conduct Difficult to prove state of mind, but criminal law is about subjective blameworthiness, except in case of negligence o Must infer

Culpable Mental State (MPC 2.02)

I. Purposely: 2.02(a), intends to harm a. Subjective test b. MPC does away with difference between specific and general intent c. Conduct: (i) conscious intent to engage in conduct (the act) d. Result: (i) conscious intent to cause the result e. Circumstance: (ii) D purpose of circumstance if the D is aware of existence of such circumstances or he believes or hopes that they exist f. U.S. v. Neiswender: juror tried to bribe lawyer to get $, charged with obstruction of justice, statute called for purpose of result, not convicted b/c his purpose was to get $ not obstruct justice so he actually only had knowledge in respect to result if you apply the MPC 3

II.

III.

IV.

i. Court used odd reasoning that you intend the natural consequences of your act to make him liable took what should have been mens rea of purpose and made it negligence g. Different from motive, which asks why? i. Good motive is not a defense to purposeful mens rea h. Conditional intent i. Holloway v. U.S.: carjacker intended to kill if necessary; court said this was enough for intent conditional purpose is purpose 1. Dissent disagreed b/c the D did not want the circumstance to occur; possible solution is saying conditional purpose is purpose if situation is likely to occur. 2. MPC 2.02(6): condition irrelevant Knowingly: 2.02(b), knows result is likely to occur even if he does not consciously seek to cause the result a. Subjective test whether D actually knew b. Conduct: (i) aware conduct is of that nature c. Circumstance: (i) aware circumstances exist d. Result: (ii) practically certain conduct will cause the result e. Risk must be substantial and unjustifiable f. Willfully: 2.02(8), in statute often indicates knowledge as mens rea unless statute otherwise indicates g. Willful blindness: 2.02(7), aware of high probability of existence i. U.S. v. Jewell: conscious avoidance of knowledge that car had drugs in it; counts as knowledge 1. notice that this seems like a recklessness standard Recklessness: knowledge of risk, but conscious decision to ignore it a. 2.02(c): consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct b. Circumstance: disregard risk that circumstance exists c. Result: disregard risk that result will follow from conduct d. MPC: Subjective test aware of risk of harm stemming from conduct i. Many courts make it an objective test e. Regina v. Cunningham: D broke gas meter, gas escaped, harming neighbor f. Risks unacceptable if social good outweighs harm g. Remember to distinguish between reckless conduct and reckless result Negligence: not aware of risk but should have been a. MPC: objective standard i. 2,02(d), Failure to perceive the risk is a gross deviation from standard of care a reasonable person would have taken b. Conduct: should have known conduct would bring result c. Circumstance: should have known the circumstance existed d. Result: should have known result would occur e. Controversy over moral culpability f. Civil standard of negligence v. criminal standard i. Criminal: requires gross deviation from what reasonable person would do 4

ii. State v. Santillanes: accidental knife injury to child question whether this is child abuse; lower court wrongly used civil negligence standard 1. use criminal negligence standard when statute does not say whether it requires criminal or civil standard 2. nature of risk must grossly deviate from reasonable conduct under criminal negligence standard V. Motive a. Usually not relevant in criminal law to guilt, but can be relevant for sentencing b. Asks Why c. Used by prosecutor to bolster case d. Sometimes used as defense if it is reason for action in favor of D i. Self defense, duress, etc. Applying Mens Rea a. When only one mens rea is identified in statute, apply it to all elements b. If plain words of statute do not specify mens rea, apply recklessness as standard under the MPC 2.02(3) lower standard than Staples i. MPC requires subjective culpability w/ reckless standard ii. U.S. v. Staples: man did not register automatic rifle as required by statute; adopted knowingly as standard; man not guilty if he did not know (Supreme Court and MPC differ on standard)

VI.

Mistake of Fact
I. Common Law a. Distinguishes between mistake of fact and mistake of law b. Specific intent: if the statute is one of specific intent, an unreasonable mistake negates the mens rea c. General intent: must be reasonable mistake to negate mens rea MPC: Mistake of Fact or Law a. Ignorance of Law (MPC 2.02 (9)) i. Ignorance of law is never an excuse cant defend by saying you did not know of existence of the law b. Mistake of Law: Confusion regarding interpretation of the law i. Different from saying you werent aware there was a law, deals with misinterpreting facts D knows actions may be governed by law but concludes that they are not illegal c. Mistake of Fact: Mistake over what d. 2.04(1): ignorance or mistake as to matter of fact or law is a defense if (a) [it] negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense. i. Purpose/ knowledge/recklessness: any honest mistake of fact no matter how unreasonable is defense and negates mens rea 1. D says did not know or intend 2. Negligent (unreasonable) mistake negates purpose/knowledge/reckless mens rea 5

II.

III.

IV.

ii. Negligence: only reasonable (not negligent) mistake negates a negligent mens rea iii. Remember that whichever mens rea you are at, a mistake of a lower mens rea will negate it e. Willfully blind treated as if you knew - 2.02(7) Regina v. Prince: 19th Century England; man took girl away from father but believed she was of age; reasonable mistake of fact but old court did not follow modern MPC standard, used strict liability theory a. Under MPC, would have defaulted to recklessness for circumstance and reasonable mistake would be enough to negate mens rea People v. Olson: mistake of fact about age of girl that had sex (statutory rape?), strict liability b/c it is a statutory rape case

Strict Liability
I. II. III. Statutes: No mens rea requirement for strict liability crimes a. Basically liable regardless of circumstances and reasonableness MPC 2.05 essentially rejects strict liability, only allows punishment via fine based on statute Strict liability or mens rea? a. Generally, strict liability crimes are those which can put large portions of society at risk ex. (Commerce of food, meds, firearms, etc.) used for protection of consumers i. Morisette v. U.S.: D honestly believed planes were abandoned and rotting, took them; charged under fed. statute that makes knowing conversion of govt. property a crime; lower court ruled on strict liability but S.C. said this was wrong standard; 1. S.C. said you must prove mens rea for all elements of crime, here they did not apply it for circumstance 2. Example where strict liability not applied 3. Strict liability usually applied in public welfare offenses (see above) b. Absent clear rule that no mens rea is required, do not dispense of mens rea based on public welfare rationale i. U.S. v. Staples: D unaware gun was automatic; silence by statute does not mean strict liability; do not assume strict liability if it would criminalize broad range of seemingly innocent conduct (talks about tradition of gun ownership) c. Strict liability crimes have lower penalties (fines) i. Exceptions: statutory rape, some felony murder

Rape
Rape laws historically were about protecting womens virginity; regarded women more as property Currently, rape law is more about sexual relations between men and women and what the criminal laws role is in those relationships o More focus on rape as crime of violence 6

o Violating rights o Can be against male or female

Model Penal Code

I. MPC 213 a. Expands behavior that constitutes rape b. Provides for degrees of rape c. Focuses on behavior rather than internal thought process d. But, still does not use sex-neutral terms, maintains marital immunity, allows mistake of age defense e. Seems to offer Ds protection II. MPC 213: Elements of rape a. Sexual intercourse b. by man w/woman not his wife c. by force or d. by threat of serious physical harm or kidnapping to victim or third person III. MPC: also rape in case of drugs or unconscious IV. MPC: 1st v. 2nd Degree a. Basic is 2nd degree (213.1(1)), but if D inflicts serious bodily harm on victim or victim was not a voluntary social companion of the actor . . . and had not previously permitted him sexual liberties it is 1st degree rape i. Can be problematic for date rape cases V. Statutes: many are now gender-neutral, include more acts, shift from focus on subjective thought process of D to objective conduct; many retain spousal immunity

Actus Reus: Look to the statutes for the elements of the crime (not MPC)
I. II. Result/Conduct: Sexual Intercourse a. Definition has been expanded in statutes and MPC Conduct: Force a. Actual force Physical i. State in the Interest of M.T.S.: (N.J) consensual kissing/petting, not consensual intercourse; element of physical force met when D used no more force than necessary for intercourse ii. Men have to use force if women resist b. Threat of force i. Whose point of view? D or P? ii. Often victims fear must be reasonable to count iii. Nonphysical threat: 1. State v. Thompson: (MT) principal threatens not to let student graduate; ruling that intimidation is not force for purposes of rape; statute did not say anything about consent so you could not argue that she did not give consent 2. Commonwealth v. Mlinarich: threat to return victim to juvenile detention center; not rape b/c no physical force 7

III.

IV.

V.

Resistance a. Not always required by statute b. Related to whether she consented, whether force was used (men would have to use force if woman resisted) c. Brings up issue: how does man know what woman wants and when she is resisting? Does no mean yes? Circumstance: Consent a. By having consent as an element, it shifts focus to victims behavior rather than Ds i. Based on victims Words and Actions b. Non-consent? i. In re John Z: (CA 2003) victim withdraws consent; rule that withdrawal is the same as no consent; question as to the clarity of victims withdrawal and the time frame for allowing D to stop ii. Commonwealth v. Sherry: victim goes home from party w/ guys, 3 have sex w/ her; D claims he did not know she did not consent; subjective view of D is not defense need to look objectively iii. Do you need to say No iv. Do you need actual physical resistance? c. Can be unclear i. State v. Rusk: (Md.); D took car keys and lightly choked victim; lack of consent was established even without specific words/actions on victims part court ruled that proof of failure to resist b/c of fear can establish lack of consent d. Statutory Rape: cannot legally give consent i. MPC allows for considering Ds belief about age e. Unconscious/mentally incompetent people cannot give consent Circumstance: Deception a. General rule is that sex by deception is not rape b. People v. Evans: D lied about conducting experiment and got victim to have sex with him, not rape c. Some states allow affirmative defense where D must prove he thought victim consented

Mens Rea
I. II. Circumstance: Consent a. Can be difficult to establish Ds mens rea b. Do you prove D knew or should have known that woman did not consent? Look to statute a. Under MPC, default is recklessness, but many states have negligence standard (lower than recklessness) which means D would be liable if he did not know but should have b. Consequence of negligence standard: maybe men do not get to have as much sex as they would like, but a higher standard might have a higher price more victimization of women c. Strict liability standard? Mistake of fact (consent) not a defense in MA 8

III.

IV.

Cases a. Commonwealth v. Sherry: b. Commonwealth v. Fischer: (PA); enacts strict liability and does not allow D to defend on basis that he made a reasonable mistake Conduct Force: a. Did he purposely force her? b. Did he force her with reckless mens rea?

Homicide Murder
Statutory approach (degrees) and MPC approach (no degrees) Mainly looking at result element of death (circumstance is that the victim was alive before the act) Premeditation can be used to separate out degrees o Appraoch #1: Premeditated murder more culpable b/c of the time of planning o Approach #2: Some crimes are brutal that are not premeditated are they really less culpable? MPC says no. (see Anderson) Common law: a. Original definition: killing with malice aforethought i. Intent to kill, motivated by ill will (malice), deliberate killing 1. also encompasses reckless or wanton conduct (2nd degree) ii. Includes first and second degree b. First Degree i. Intentional killing (malice aforethought) that is premeditated, willful, and deliberate ii. Premeditation 1. not necessarily long premeditation necessary 2. Commonwealth v. Carrol: (1963) man murders wife after she nags and berates him; D argues he has good reputation and could not have premeditated the murder; court says need some premeditation for 1st degree but no time is too short 3. State v. Guthrie: (1995) requirement of more time for premeditation; need sufficient time between formation of intent and actual killing; contrary to Carrol 4. State v. Forrest: man helps terminally ill father die; has all mens rea requirements but is seemingly less morally culpable, but meets 1st degree murder requirements c. Second Degree i. Intentional killing (malice aforethought) that is not premeditated ii. Not premeditated, deliberate, and willful 1. Anderson case: murder reduced from 1st to 2nd degree when man brutally stabs girlfriends daughter; so brutal there is no evidence of premeditation, raises questions about culpability 9

I.

II.

because it is less culpable than 1st degree but obviously very brutal is D really less culpable? d. Provocation (related to Manslaughter) i. Adequate provocation reduces murder to manslaughter under common law. ii. Generally, words are not adequate provocation to reduce from murder to manslaughter iii. Standard: would a reasonable person be inflamed to murder? If yes, then it is manslaughter iv. Cooling off: if you have time to cool off, provocation does not mitigate charge v. Girouard v. State: (1991) man kills wife after she questions his manliness and abilities in bed; court says words do not constitute provocation to reduce crime from 2nd degree murder to manslaughter vi. Maher v. People : (1862) words were enough to be provocation where man heard about wifes adultery vii. People v. Casassa: there is both subjective and objective element when deciding whether to reduce from murder to manslaughter (subjective re: whether D was under extreme emotional disturbance; objective re: whether disturbance was reasonable) 1. raises question about what factors to consider MPC 210.2: a. abolishes distinction between first and second degree murder (rejects premeditation) b. Uses mens rea to separate murder and manslaughter c. Mens rea: purposely; knowingly; or recklessly under circumstances manifesting extreme indifference to the value of human life i. Gels with common law in that any premeditated and deliberate homicide fits within purpose or knowing d. Must subjectively recognize risk of death under MPC e. Idea of malice f. Provocation does not reduce to manslaughter as in common law i. Not provocation, but . . . ii. 210.3(1)(b): A killing that would otherwise be murder is manslaughter if it is committed recklessly and under extreme emotional or mental disturbance for which there is a reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actors situation under the circumstances as he believes them to be.

Unintended Killings (Manslaughter)

I. Common law: a. Unlawful homicide without malice aforethought (no intent or knowledge action might cause death or reckless disregard for life) i. Difficult distinction ii. Mens rea of reckless (wanton) conduct or negligence 10

II.

b. Voluntary v. Involuntary i. Voluntary: intentional killing mitigated by heat of passion, provocation want to cause death but you dont have control of emotions ii. Involuntary: unintentional killing (reckless, negligent) without malice c. Civil v. Criminal Liability i. Commonwealth v. Welansky: fire at nightclub; manslaughter based on omissions and affirmative acts; reasonable person should have been aware of risk 1. mens rea wanton or reckless conduct for manslaughter d. Objective v. Subjective Standards of Liability i. State v. Williams: negligent parents and child dies; ordinary negligence enough to convict of involuntary manslaughter (usually need gross negligence); did parents exercise reasonable care? Objective standard w/ subjective parents may not have been convicted e. Line between Murder and Manslaughter i. When recklessness shows wanton disregard for life, it is murder (considered malice aforethought) 1. Jury decision, consider factors such as a. Magnitude of risk b. Ds awareness of risk c. Justification of risk ii. Commonwealth v. Malone: boy shoots friend playing Russian roulette; second degree murder rather than manslaughter; even though there was no intent it was gross recklessness and enough to be murder b/c it showed disregard for human life although no intent, gross negligence showed reckless wanton disregard iii. U.S. v. Fleming: drunk driver swerves and kills; second degree murder did not necessitate intent to kill; wanton and gross deviation from reasonable conduct was enough constitutes malice aforethought 1. self-induced intoxication not a defense (MPC agrees) MPC 210.3 a. (a): Homicide is manslaughter when committed recklessly (consciously disregards a substantial and unjustifiable risk that his conduct will cause the result) b. Under MPC, mens rea of recklessness (210.3) i. With these, if there is extreme disregard for life it is murder (jury determination, see above) ii. Self-induced intoxication is no defense c. No provocation rule (see MPC above) (c) replaced with extreme emotional disturbance standard for which there is reasonable explanation or excuse to change to manslaughter

11

i. I think victim must be the person that harmed you for reduction of crime in this instance, which is also the majority rule d. Both subjective and objective: (c) determining from the viewpoint of a person in the Ds situation (objective) in the circumstances as D believed them to be (subjective) i. Issue: How much do info you allow in when you are subjective? e. No Distinction between voluntary and involuntary

Felony Murder Rule

I. Death occurring during course of felony or fleeing the felony is murder strict liability a. Must be inherently dangerous felony to qualify i. Generally, the doctrine is too broad b. Transferred intent culpable mens rea for felony gets transferred to murder (imputation of mens rea that does not actually exist) c. Regina v. Serne: D set house on fire and son dies; guilty of murder b/c he committed felony Proximate Cause Theory a. Not just the but for cause but a proximate cause of the death In furtherance or agency theory a. killing must be in furtherance of the crime b. person responsible for his actions or the actions of his accomplice Ideas behind Felony Murder Rule: a. Deters people from engaging in felonies or engaging in risky behavior while committing a felony b. Causal theory: A D that engages in risky behavior should be responsible for any result of that behavior, even if unintended c. Foreseeability: D should know this could happen MPC : limits felony murder rule to cases of robbery, rape, arson, burglary, kidnapping, felonious escape a. MPC is very limiting on the rule b. Assumes reckless disregard for human life c. Burden of proof falls to defendant to show he is not brutal, malicious killer Co-Felons a. Once you accept felony murder rule, complicity theory will make co-felons accountable b. State v. Canola: (NJ 1977) D not guilty of murder when co-felon was killed by the victim of their robbery i. majority rule: only guilty if co-felon is killed as a result of Ds actions during felony ii. agency theory c. Taylor v. Superior Court: (CA 1970): D was guilty when victim of robbery killed co-felon i. co-felons were responsible for provoking resistance; had mens rea of conscious disregard for human life and thus malice

II. III. IV.

V.

VI.

12

VII.

Can be different from complicity because in complicity you might not have the requisite intent to be convicted, but you could be convicted under felony murder

The Significance of Resulting Harm Causation

Prosecutor must prove cause in fact and proximate cause Common law approach (more accepted) o But for cause o Proximate Cause Is there an intervening cause? If so, is it superseding (breaks connection and D is not liable) Remoteness and foreseeability are factors MPC 2.03 MPC 2.03(2)(b): Purpose/knowledge the actual result involves the same kind of injury or harm as that designed or contemplated and is not too remote or accidental in its occurrence to have a [just] bearing on the actors liability or on the gravity of his offense.

Cause in Fact
I. II. But for cause Substantial factor test a. does not have to be the act that definitely caused death if it contributed heavily b. Murder victim must be alive at time of act

Proximate Cause
I. Is the connection between the act and the harm related enough to hold D liable? a. Scientific, moral b. Can be multiple proximate causes c. Criminal law requires a more substantial connection than tort law because of basis on moral fault and punishment i. Commonwealth v. Root d. Unintended Victims: doctrine of transferred intent Ds intent is transferred from the actual to the intended victim i. Supported by MPC 2.03(2)(a) ii. Applies only where the intended result occurs, not in attempt crimes e. Foreseeablity MPC: is not too remote or accidental in its occurrence to have a [just] bearing on the actors liability or on the gravity of his offense. a. No intervening actors in MPC Foreseeability a. If result is foreseeable, there is crime 13

II. III.

IV.

V.

b. Mechanical or scientific c. People v. Acosta: helicopter crash while following police chase, debate over foreseeability, found him to be proximate cause (events foreseeable) but not convicted b/c of lack of malice (no mens rea) d. People v. Arzon: two fires, fireman dies b/c of 2nd fire, D started the 1st fire, still convicted b/c sufficiently direct cause, foreseeability Subsequent Human Actions Intervening Cause a. Intervening cause: i. If it breaks causal connection it is a superseding cause which gets rid of liability b. People v. Campbell: D gave gun to deceased hoping he would kill himself b/c deceased slept w/ Ds wife (both men drunk), deceased killed himself, D not guilty of murder b/c he did not do the killing deceased action was superseding cause c. People v. Kevorkian: assisted suicide where women took the final steps to commit suicide, issue is extent to which he made it possible for them to kill themselves, court tries to distinguish between aiding and participating (no clear line) i. Generally assisted suicide is not murder but its own offense d. Stephenson v. State: woman abducted and abused, tries to commit suicide, kidnapper takes home after she swallows pills, court rules that victims actions were not superseding cause b/c victim was under Ds control i. Court seems to be saying that it is not a superseding cause unless the victim does something that is completely unforeseeable ii. Superseding cause in this case not volitional Subsequent Human Actions that Recklessly Risk the Result a. Drag racing/Russian Roulette cases i. Manslaughter b. Ask about foreseeability, superseding cause c. Bring in moral arguments d. Commonwealth v. Root: involuntary manslaughter? Drag racing, one racer swerved and killed self, other driver not found guilty, victims action a superseding cause b/c he recklessly chose to swerve into a head-on collision i. Majority rejects foreseeability but dissent says D helped create the dangerous situation and should be guilty e. State v. McFadden: involuntary manslaughter? Drag racing, victim killed self and innocent people when he went into oncoming traffic, court looks more at foreseeability and convicts D f. Commonwealth v. Attencio: Russian roulette, D guilty of manslaughter, inherent difference between Russian roulette and drag racing b/c purpose of Russian roulette is for someone to die

Attempt
Mens rea: o the mens rea required for the substantive crime 14

o Must also intend the act, which, if carried out, would have resulted in commission of the crime Common law draws later line for actus reus than MPC (makes it harder to convict but less likely to arrest someone that would change mind) Idea that you do not want to punish for thought o Competes with ideas that thought/intent speaks to culpability and you want to be able to prevent crimes

Mens Rea
I. Common Law a. D must have the same mens rea required for acts which, if they had been carried out, would have resulted in the commission of the crime b. D must intend i. To do the act (conduct) ii. To accomplish the result iii. Under the same circumstances (must know the circumstance of target offense) MPC 5.01(1) a. Same mens rea as required for commission of the crime b. Did D have i. Conduct: Purpose ii. Result: Knowledge or Purpose (this makes it easier to convict for attempt) iii. Circumstance : whatever mens rea is required for commission of completed crime (First, you would look at the statute) Smallwood v. State: HIV+ man rapes 3 women, attempted murder? No b/c he did not intend that they would be killed, only recklessly disregarded the possibility (result element) Generally, there is no crime of attempted manslaughter b/c manslaughter has a reckless or result and not intended

II.

III. IV.

Actus Reus: Preparation v. Attempt

I. II. III. Do not want to punish for thought when there is the chance the person will change mind Tests: Proximity, MPC Common Law (Proximity Test): Mere preparation is not enough, must wait until last step before crime is committed to be an attempt crime a. Question is what is yet to be done? b. People v. Rizzo: bank robbery plan, Ds not guilty b/c they were not far enough along in the robbery under the proximity test c. No abandonment MPC Approach: 5.01(1)(c) substantial step toward commission of crime test; increases ability to move in before crime (more followed) a. Question is what has been done is it enough to show firm intent? b. U.S. v. Jackson: followed MPC in attempted robbery case, said there was substantial step 15

IV.

c. Abandonment: allowed under MPC as affirmative defense for people who truly voluntarily abandon the crimes

Impossibility
I. Different from mistake of fact/mistake of law b/c it deals more with whether result can occur than the mens rea of each element Defense to attempt Factual impossibility: D would have committed offense if not for mistake of fact a. Had the facts been as D believed them to be, there would have been a crime so the mens rea is there b. Ex: pickpocket who tries to take wallet but there is no wallet there, loaded v. unloaded gun c. This is NOT a valid defense Legal Impossibility: true or mistake of fact re: legal relationship a. True Legal Impossibility: Even had the facts been as the D believed them to be, there would not have been a crime mistake about how the crime is defined i. D not guilty in these cases b. Mistake of fact relating to legal relationship: mistake about whether the facts bring Ds behavior into the statute i. People v. Jaffe: D tried to buy stolen goods but they were not actually stolen, court said there was legal impossibility and acquitted ii. Can use as a defense MPC 5.01(a): it is an attempt to purposely engage in conduct which would constitute a crime if the attendant circumstances were as [the defendant] believes them to be a. Eliminates distinction between legal and factual impossibility b. Eliminates impossibility as defense except in cases of true legal impossibility c. Considers mens rea d. Also makes punishment for attempt same as punishment for crime (not sure which ) b/c culpability based on intent e. Current majority position f. People v. Dlugash: one man shoots victim, D then shoots victim, prosecution could not prove D thought victim was alive when D shot him, so there was no proof of what he thought circumstances were, not guilty of attempt

II.

III.

Group Criminality: Complicity

Holding accomplice accountable for actions of another during a crime D must intend to aid in the principal act If accomplice has the requisite mens rea, you impute the act of the principal actor you do not impute mens rea 16

(Different from felony murder, where if the D has the requisite mens rea, you impute the mens rea for murder) Broad doctrine Balances holding people accountable for the risk they caused and the level of involvement in creating the risky situation

Requirements
I. The D aided or abetted (actus reus) a. D must have directly or indirectly encouraged or facilitated the commission of the offense b. Under MPC, attempt to aid is enough, whereas under common law you actually have to aid the person (most states follow common law here) c. Remember, there is no but for element no need the prove the crime would not have been committed but for the aid D Had the requisite mens rea a. Mens rea for the crime required i. Result: kind of culpability sufficient for the commission of the offense as provided in the definition of the substantive crime 1. as long as you intend to aid, there is no purpose/intent for the result (can be troublesome) 2. remember the cleaning the gun example knowledge of use of the gun often enough to convict ii. Had Purpose (Intent to aid) act with an affirmative desire that his acts have an encouraging or assisting effect. This promotes or facilitates the crime/ purpose to promote commission of crime/ assist party to engage in conduct that forms the basis of the offense 1. once you aid, you can impute the conduct of the principal actor The person abetted or incited actually committed the offense

II.

III.

Mens Rea
I. Actions of the Principal a. Hicks v. U.S.: one man kills another, D used encouraging words; if D intended to encourage murder, the action is imputed to him b. State v. Gladstone: D told other person where he could buy marijuana, had no purpose to aid the principal in selling marijuana (the crime) even though knew it could happen, so not guilty i. Knowledge not enough, need purpose c. People v. Luparello: D looking for ex-girlfriend, henchmen kill the guy who might be able to locate her i. They convicted him based on imputing the purpose of the henchmen but this DOES NOT follow the MPC b/c he did not have purpose in relation to the commission of the crime (murder) Attendant Circumstances

II.

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III.

IV.

V.

a. U.S. v. Xavier: brother gives ex-felon brother a gun, which he uses for murder. Did non-felon brother aid ex-felon in acquiring firearm? Said he did not know, so not convicted Result a. People v. McVay: convicted of aiding manslaughter based on aiding in commission of grossly negligent act b. People v. Russell: 3 kids shooting guns, no proof as to which killed the principal all convicted b/c all had the necessary mens rea for murder Drag racing and complicity a. Accomplice has to intend to aid the principal actor in the activity; question becomes which activity in drag racing the accomplice intends to aid the drag racing, but not the murder/manslaughter Dangerous activity a. State v. Ayers: no complicity for involuntary manslaughter when selling gun to 16 year old without permit b. State v. Travis: complicity for involuntary manslaughter when D let 15-yr. old drive defective motorcycle in area w/ lots of kids around c. The theory for holding an accomplice liable in dangerous activity is that they aided the principal actor in the dangerous activity. They risked the death of someone by aiding in the dangerous activity d. There is also an element of closeness to the actual activity that distinguishes these cases (idea of fairness); court seems to raise the aid requirement in instances of recklessness and negligence

Actus Reus
I. II. Wilcox v. Jeffery: convicted for aiding when man went to watch a man illegally play instrument even though he did not encourage him a. Most states will rule differently than here b/c there was no actual aid State v. Tally: telegram case, telegram aided the brothers in committing murder, so he is guilty of murder as well

Exculpation
I. II. All elements of the crime are there, but D not held accountable

Justification v. Excuse
Justification: admit that D did something but say that it was a good or sensible action morally right to commit the crime, better that D committed the crime a. Self defense Excuse: admit action was bad but D does not accept full (or any) responsibility a. Insanity, forced to commit crime

Self Defense
I. MPC 3.04 18

II. III. IV.

V.

a. (1): use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against he use of unlawful force by such other person on the present occasion b. (2)(b): the use of deadly force is not justifiable under this section unless the actor believes such force is necessary to protect himself against death, serious bodily harm, etc. i. allows unreasonable or reasonable mistake when deciding how much force is necessary to defend Common law: allows a reasonable mistake in relation to justification, but not an unreasonable mistake Balance: do not want an unreasonable belief to exonerate a person, but maybe you want to mitiage culpability based on a persons belief they were in danger People v. Goetz: systematic shooting of boys in NY subway, not guilty based on self defense a. Used a reasonable man standard as to whether a reasonable man would believe he had to use deadly force in the Ds situation (rather than MPCs allowance of mistake related to force necessary to defend) b. This case brings up a lot if issues relating to stereotyping Battered Women a. State v. Kelly: D kills husband with scissors and claims self defense, history of abuse, court ruled that expert testimony should be allowed b/c it would educate jury about Ds state of mind i. brings in the idea of allowing expert witnesses in order to educate the jury b. Differentiation between woman who kills husband while fighting or when he is not expecting it

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