Criminal LawProfessor Sara Sun Beale

Fall 2015

Introduction: Setting the Stage.............................................................................................5 Trial by Jury........................................................................................................................................5 Proof of Guilt at Trial.........................................................................................................................5o In re Winship..................................................................................................................................5o Mullaney v. Wilbur.........................................................................................................................5o Patterson v. New York....................................................................................................................5

Constitutional Principles of Punishment.................................................................................5 Coker v. Georgia............................................................................................................................5 Ewing v. California.........................................................................................................................6

Modern Role of Criminal Statutes........................................................................................6 Principle of Legality...........................................................................................................................6 Commonwealth v. Mochan.............................................................................................................6 Keeler v. Superior Court.................................................................................................................6 In re Banks......................................................................................................................................7 City of Chicago v. Morales.............................................................................................................7

Statutory Interpretation.......................................................................................................................7o Muscarello v. United States, 119....................................................................................................7

Actus Reus..................................................................................................................... 8 MPC 2.01 vs. Common Law...............................................................................................................8 Voluntary Act.....................................................................................................................................8o Martin v. State................................................................................................................................8

Omissions...........................................................................................................................................8o People v. Beardsley........................................................................................................................8

Mens Rea...................................................................................................................... 9 MPC vs. Common Law, Generally.....................................................................................................9 Nature of Mens Rea............................................................................................................................9o Regina v. Cunningham...................................................................................................................9

General Issues in Proving Culpability.................................................................................................9 People v. Conley...........................................................................................................................10o The MPC Approach, 2.02.............................................................................................................10 State v. Nations.............................................................................................................................10 Flores-Figueroa v. United States...................................................................................................10

Strict Liability Offenses....................................................................................................................11o Unites States v. Cordoba-Hincapie...............................................................................................11o Staples v. Unites States.................................................................................................................11o Garnett v. State.............................................................................................................................11

Mistake and Mens Rea......................................................................................................................12o Mistake of Fact.............................................................................................................................12

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o People v. Navarro.........................................................................................................................12o Mistake of Law.............................................................................................................................13 People v. Marrero.........................................................................................................................13 Cheek v. United States..................................................................................................................14

Corporate Criminal Liability.............................................................................................14Rape........................................................................................................................... 15 Background.......................................................................................................................................15 Concerns for Modern Rape Law.......................................................................................................15

Criminal Homicide.........................................................................................................15 Overview..........................................................................................................................................15o Common Law Origin, Murder......................................................................................................15o Common Law Origin, Manslaughter............................................................................................16

MPC 210.1-210.4 vs. Common Law.................................................................................................16 Intentional Killings...........................................................................................................................16o Degrees of Murder........................................................................................................................16 State v. Guthrie.............................................................................................................................17 Midgett v. State............................................................................................................................17 State v. Forrest..............................................................................................................................17o Manslaughter................................................................................................................................17 Girouard v. State...........................................................................................................................17 Director of Public Prosecutions v. Camplin..................................................................................18 People v. Casassa..........................................................................................................................18

Unintentional Killings: Unjustified Risk-Taking..............................................................................19o People v. Moore............................................................................................................................19o People v. Knoller..........................................................................................................................19o State v. Williams..........................................................................................................................20

Unintentional Killings: Unlawful Conduct.......................................................................................20o The Felony-Murder Rule..............................................................................................................20 People v. Fuller.............................................................................................................................21 People v. Howard.........................................................................................................................21 State v. Goodseal..........................................................................................................................21 State v. Sophophone.....................................................................................................................22o The Merger Rule...........................................................................................................................22 People v. Smith.............................................................................................................................22

Capital Murder..................................................................................................................................22 Furman v. Georgia........................................................................................................................22 Gregg v. Georgia..........................................................................................................................23 Woodson v. North Carolina..........................................................................................................23 McClesky v. Kemp.......................................................................................................................23 Payne v. Tennessee.......................................................................................................................23 Tison v. Arizona...........................................................................................................................24

General Defenses to Crimes..............................................................................................24 Categories of Defenses.....................................................................................................................24 Principles of Justification..................................................................................................................25o Self-Defense.................................................................................................................................26 United States v. Peterson..............................................................................................................26

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People v. Goetz.............................................................................................................................27 State v. Wanrow...........................................................................................................................27o State v. Norman I..........................................................................................................................27o State v. Norman II........................................................................................................................28o Defense of Habitation/Property....................................................................................................28 MPC 3.06.....................................................................................................................................28 State v. Boyett..............................................................................................................................28o Necessity......................................................................................................................................28 Nelson v. State..............................................................................................................................29 United States v. Schoon................................................................................................................29 The Queen v. Dudley and Stephens..............................................................................................29

Principles of Excuse..........................................................................................................................30o Duress...........................................................................................................................................30 United States v. Contento-Pachon................................................................................................30 People v. Unger............................................................................................................................31o Intoxication...................................................................................................................................31 MPC v. Common Law..................................................................................................................31 United States v. Veach..................................................................................................................31 State v. Dufield.............................................................................................................................32o Insanity.........................................................................................................................................32 M’Naghten....................................................................................................................................32 Irresistible Impulse.......................................................................................................................32 Product Test..................................................................................................................................32 MPC 4.01.....................................................................................................................................32 Post-Hinkley.................................................................................................................................33

Inchoate Offenses..........................................................................................................33 Overview..........................................................................................................................................33 Attempt.............................................................................................................................................33o Common Law vs. MPC................................................................................................................33o Mens Rea......................................................................................................................................33 People v. Gentry...........................................................................................................................33 Bruce v. State...............................................................................................................................33o Actus Reus....................................................................................................................................34 How Close?..................................................................................................................................34 United States v. Mandujano..........................................................................................................35 Commonwealth v. Peaslee............................................................................................................35 People v. Rizzo.............................................................................................................................35 People v. Miller............................................................................................................................35 State v. Reeves..............................................................................................................................35 Impossibility.................................................................................................................................35 People v. Thousand.......................................................................................................................36 Abandonment...............................................................................................................................36 Commonwealth v. McCloskey......................................................................................................36

Conspiracy........................................................................................................................................36 People v. Carter............................................................................................................................37 Pinkerton v. United States............................................................................................................37o Mens Rea......................................................................................................................................37

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People v. Swain............................................................................................................................37 People v. Lauria............................................................................................................................38o Actus Reus....................................................................................................................................38 Commonwealth v. Azim...............................................................................................................38 Commonwealth v. Cook...............................................................................................................38o Bilateral or Unilateral?.................................................................................................................38 People v. Foster............................................................................................................................38o Scope of an Agreement.................................................................................................................39 Kilgore v. State.............................................................................................................................39 Braverman v. United States..........................................................................................................39o Defenses.......................................................................................................................................39 Iannelli v. United States................................................................................................................39 Gerbardi v. United States..............................................................................................................39 People v. Sconce...........................................................................................................................40

Accomplice Liability......................................................................................................40 General Principles.............................................................................................................................40 State v. Ward................................................................................................................................41

Elements of Accomplice Liability, In General..................................................................................41o State v. Hoselton...........................................................................................................................41

Mens Rea..........................................................................................................................................41o Offenses Not Requiring Intent......................................................................................................41 Riley v. State................................................................................................................................41o Natural-and-Probable Consequences Doctrine.............................................................................42 State v. Linscott............................................................................................................................42

Actus Reus........................................................................................................................................42o State v. V.T...................................................................................................................................42o Wilcox v. Jeffrey..........................................................................................................................42o State v. Helmenstein.....................................................................................................................42o People v. Genoa............................................................................................................................43

Relationship of the Liability of the Accomplice to the Principal.......................................................43o If the Principal is Acquitted, Secondary is Acquitted...................................................................43 United States v. Lopez..................................................................................................................43o If the Principal is Convicted, Secondary Can Be Convicted.........................................................43 People v. McCoy..........................................................................................................................43

Limits to Accomplice Liability.........................................................................................................43o In re Meagan R.............................................................................................................................43o State v. Formella...........................................................................................................................44

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Introduction: Setting the Stage Trial by Jury

o 6th Amendment: “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury”

o Sullivan v. Louisiana , includes “the right to have the jury, rather than the judge, reach the requisite finding of ‘guilty’” in all prosecutions for which the maximum punishment exceeds incarceration of 6 months

o Duncan v. Louisiana , “a right to jury trial is granted to criminal defendants in order to prevent oppression by the Government.”

Proof of Guilt at Trialo Policy: there’s a lot at stake, so a society that values freedom shouldn’t send a

man to prison when there is a reasonable doubt about his guilto In re Winship , 470

Due Process Clause requires prosecutor to persuade the factfinder “beyond a reasonable doubt of every fact necessary to constitute the crime charged”

o Mullaney v. Wilbur , 470 Under Maine homicide law, burden couldn’t be placed on the defendant of

proving by a preponderance of evidence that the killing had occurred in HOPSAP

Ruling doesn’t apply to insanityo Patterson v. New York , 467

Demonstrates the importance of elements and affirmative defenses In NY, malice aforethought was not an element, and EEDREX was an

affirmative defense, which means the burden was shifted to the defendant to prove EEDREX instead of requiring the state to prove malice aforethought

Court held the affirmative defense does not negative any elements of the crime, and it’s a completely separate issue; state proved “intent,” the only element, so they satisfied Winship

Decision fundamentally changes the balance in a criminal case

Constitutional Principles of Punishment 8th Amendment, “excessive bail shall not be required, nor excessive fines imposed, nor

cruel and unusual punishment inflicted” Coker v. Georgia , 72 (prison escape rapist)

o A punishment is excessive and unconstitutional if it “Makes no measurable contribution to acceptable goals of punishment and

hence is nothing more than the purposeless and needless imposition of pain and suffering”

“Is grossly out of proportion with the severity of the crime”o A sentence of death is disproportionate and excessive for the crime of rape of an

adult woman, forbidden by the 8th amendment; aggravating factors based on prior status/acts as a felon, not on the crime itself

o Objective indicators of evolving societal standards of acceptance of certain kinds

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of conduct, like in other 8th amendment caseso See also: Kennedy v. Louisiana (78) where court held death penalty for vicious

rape of a child was disproportionate to the crimeo NOTE: the death penalty has not been eliminated entirely for non-murders, just

eliminated for crimes against individuals; still left open for crimes against the state

Ewing v. California , 80 (3 strikes)o Four principles of proportionality review (from Harmelin v. Michigan)

Primacy of the legislature Variety of legitimate penological schemes Nature of federal system Requirement that proportionality review be guided by objective factors

o 8th amendment doesn’t require strict proportionality, only forbids grossly disproportionate sentencing; outside of capital punishment, challenges to proportionality are rarely successful

Modern Role of Criminal Statutes Principle of Legality

o Nullum crimen sine lege, nulla poena sine lege, “no crime without law, no punishment without law”

A person can’t be convicted unless her conduct was defined as criminal Corollaries

Criminal statutes should be understandable to reasonable law-abiding persons

Criminal statutes should be crafted so they don’t delegate policy matters to judges for resolution on an arbitrary or discriminatory basis, see: Papachristou v. City of Jacksonville, 111

Judicial interpretation of ambiguous statutes should be biased in favor of the accused (lenity doctrine)

o Protects actors where a law is not clearly prescribed and encourages legislatures to speak more clearly

o Limited, only applies if we can’t make more than a guess as to what Congress intended, see: Muscarello v. United States

NOTE: the ex post facto clause prohibits retroactive legislation and legislative expansion of existing statutes, and the due process clause prohibits retroactive judicial lawmaking

Commonwealth v. Mochan , 92 (sexy prank calls) Because his actions were particularly inappropriate and potentially

“injurious to public morals,” Mochan’s actions are a misdemeanor under common law, despite their not being explicitly prohibited

The test is not whether the precedents can be found in the books, but whether the alleged crimes could have been prosecuted and the offenders punished under the common law; this is a novel issue

Dissent: inappropriate infringement on the separation of powers Keeler v. Superior Court , 95 (ex-hubs kills non-human fetus)

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Courts can’t create an offense by enlarging a statute, inserting or deleting words, or giving words a new meaning

To imbue a statute with a meaning that the legislature did not intend would exceed judicial power and deny the petitioner due process; to get the legislative intent, look to the meaning when it was passed

Dissent: homicide has been illegal for a long time, so killing a fetus was not unforeseeable; there’s also a common law basis for considering a fetus a human being

NOTE: very unusual procedural issue, Keeler filed a writ of prohibition, suing to keep the case from even being heard

o The Values of Statutory Clarity In re Banks , 105 (peeping tom, focus due process on vagueness)

Definiteness is an essential element of due processo Prevents lack of fair notice of the prohibited conducto Prevents failure to define a reasonably ascertainable

standard of guilt Guide judge in application of the law Guide lawyer defending one charged with law’s

violation Doctrine of Constitutional Avoidance : When there are two possible

interpretations of a law (one constitutional and one unconstitutional), adopt the constitutional interpretation

When the language of a statute is clear, there is no room for judicial construction; where a statute is unclear, the court should look to legislative intent

City of Chicago v. Morales , 113 (loitering gang members and friends) Vagueness may invalidate a criminal law if:

o It may fail to provide suitable noticeo It may authorize discriminatory and arbitrary enforcement

Ordinance is an overbroad law that criminalizes innocent conduct (an “unjustified impairment of liberty”) while not criminalizing loitering with an obviously threatening or illicit purpose

Statutory Interpretationo Muscarello v. United States , 119

Whether “carries a firearm” is limited to carrying firearms on the person Analysis:

First, look at the languageo Primary/ordinary meaning (what’s the first thing that

comes up in the dictionary?)o Alternative meanings

Next, look to Congressional intento Legislative history, commentaryo What was the purpose of the statute?

Examine other arguments

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o Does the same word appear elsewhere?o Would such an interpretation lead to two different words in

the same statute to mean the same thing?o Would this make the statute overly broad?o Is it sufficiently vague to invoke the rule of lenity?

Actus Reus The physical or external part of the crime, includes the conduct, the harmful result, and

the attendant circumstances MPC 2.01 vs. Common Law

o Same, though MPC doesn’t actually define voluntary, just involuntary actso Two elements

Includes voluntary act or omission Results in social harm

o Liability for omission only where there’s a duty to perform and immediate danger Voluntary Act

o Martin v. State , 128 (I was not drunK in publiC) Drunkenness in public can’t be established by proof that the accused was

involuntarily or forcibly carried to that place by the arresting officero Only requires an aspect of the crime to be voluntary, see: People v. Decina,

epileptic driving a car is voluntary, even if a seizure while driving and causing death isn’t, 134

o Policy: we don’t punish people for thoughts alone, and, because the law can’t deter involuntary movement, it doesn’t make sense to criminalize it

Omissionso People v. Beardsley , 136 (duty of care in deadly affair)

The law recognizes that under some circumstances omission does result in culpability, but only where that person has a duty imposed by law or by contract, and the omission to perform the duty is the immediate and direct cause of death

Where statute imposes a duty (Good Samaritan Laws) Employment (teachers, doctors) Relationship (parents, spouses) Contractual (lifeguards, police) Voluntary Risk creation (negligent driver) NOTE: there’s a focus on protecting especially vulnerable

populations, like childreno Why is the omission rule so lenient?

Omissions more ambiguous than acts, especially determining culpability Difficult line-drawing problems; who do you punish? Every witness? Only

those who realized how dire the situation was? Only those whose inaction was the result of moral indifference?

Well-meaning bystanders often make matters worse by intervening Issue of freedom: a penal law that prohibits someone from doing an act

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permits that person to do anything other than that act; forcing someone to act seems like a more substantial invasion of personal autonomy than preventing certain actions

Mens Rea The criminal intent

o Broadly defined: “shorthand for a broad network of concepts encompassing much of the relationship between the individual and the criminal law”; essentially, any morally blame-worthy state of mind, see: United States v. Cordoba-Hincapie, 149

o Narrowly defined: the mental state specified in the definition of the crime MPC vs. Common Law, Generally

o MPC 4 listed mens rea states applied throughout the code (2.02(2,5)) Check whether term applies to every element (2.02(4)) When nothing is mentioned, reckless is assumed (2.02(3)) Strict liability is very rare (2.02(1))

Statutory rape (213.6(1)) Child rape (213.6(1)) Sexual assault of child (213.4(4)) Policy: protection of the most vulnerable is important

o Common Law Lots of different ways of describing means rea states General rule: some level of mental culpability required When nothing is mentioned, look to legislative intent and syntax (where

does it come in the code, how is it used elsewhere) Strict liability exists, usually in regulatory/public welfare crime

Nature of Mens Reao Regina v. Cunningham , 151 (before and after: ingest coal gas meter)

Question of the definition of malice Old definition: wickedness in general New definitions:

o An actual intention to do the particular kind of harm that in fact was done

o Recklessness as to whether such harm should occur or not Probably closest to MPC reckless

General Issues in Proving Culpabilityo Intent

We assume that a person intends the natural and probable consequences of his actions

Transferred intent: when a defendant intends to cause harm to one person but accidentally causes it to another, courts typically assert the transferred intent doctrine; the accused is as culpable and society is as harmed as much as if the defendant had accomplished what he had initially intended

People v. Conley , 153 (wine bottle to the face)

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Whether there was sufficient evidence to prove he intentionally or knowingly caused a disabling injury

The offense is defined in terms of result, so the state must prove either the defendant had a conscious objective to achieve the harm defined, or he was consciously aware that it was practically certain to take place

o The MPC Approach, 2.02 Purpose

Conduct or result is his conscious object Aware of attendant circumstances elements, or believes/hopes they

exist Knowledge

Aware his conduct is of the nature of the crime or that attendant circumstances exist

Aware that it is practically certain his conduct will cause the illegal result

Recklessness Consciously disregard a substantial and unjustifiable risk that

the material element exists or will result from his conduct Disregard involves a gross deviation from a law-abiding person in

the actor’s situation Negligence

Should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct

Failure to perceive the risk considering nature, purpose, and circumstances known to him, involves a gross deviation from the standard of care of a reasonable person in the actor’s situation

o Knowledge/Willful Blindness State v. Nations , 164 (dancing queen, young and sweet)

Statute required actor to knowingly encourage, aid, or cause a child to engage in acts injurious to their welfare

While the MPC’s definition of knowledge includes willful blindness of a fact (“aware of a high probability”), the Missouri criminal code does not (“when he is aware that those circumstances exist”); under MPC, she would have been convicted, but she won’t be under state law

o Problems of Statutory Interpretation Flores-Figueroa v. United States , 169 (yo I got a fake ID tho)

Issue whether the statute requires the government to show that the defendant knew that the means of identification she unlawfully used belonged to another person where the statute says offender “knowingly … uses … a means of identification of another person”

Look at the grammar of the statute; a mens rea term (here, knowingly) typically applies to all listed elements that follow

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Strict Liability Offenseso NOTE: the presumption is against strict liabilityo Unites States v. Cordoba-Hincapie , 174

There’s an exception to the mens rea requirement for certain public welfare offenses

Principle: If punishment far outweighs regulation of the social order as a

purpose of the law in question, then mens rea is probably required If the penalty is light, involving a relatively small fine and not

including imprisonment, then mens rea probably is not required NOTE: while public welfare/regulatory offenses are the most common

type of strict liability offenses, often an offense will contain a mens rea requirement for some, but not every element of the crime

Attendant circumstance is often strict liability If there’s strict liability for one or more element, there is no basis

for acquittal on the ground of mistake of fact or law as to those elements

o Staples v. Unites States , 176 (altered machinegun turned semiautomatic) Where the language of the statute doesn’t give indication about mens rea,

construe the statute in light of the background rules of the common law; the punishment is a key indicator of the mens rea

An indication of congressional intent, express or implied, is required to dispense with mens rea as an element of a crime

Avoid construing a statute to dispense with mens rea where doing so would “criminalize a broad range of apparently innocent conduct”; doesn’t mean that a felony can’t be strict liability, but you have to do the analysis

See also: Morissette v. United States, 182, congressional silence on mental elements indicates they’re adopting what has already been established by common law and state statutory interpretation; one of the most important strict liability cases

o Garnett v. State , 185 (mentally-handicapped adult, pregnant 13 year old girl) Policy arguments against strict liability

Laws exist to punish morally culpable behavior; when culpability is absent, it is unjust to punish

Modern scholars generally reject it, saying it doesn’t get us what we want and it is unjust

MPC generally requires some degree of mens rea; strict liability just doesn’t really apply to criminal law

Court held the plain reading of the statute defines a strict liability offense; making no reference to actor’s state of mind was a legislative decision

Look at composition; provision immediately before includes mens rea requirement

Drafting history shows drafters viewed the crime as strict liability from the beginning

Dissent: In most cases, a mistake of age is not a defense, but that doesn’t mean there’s no mens rea requirement; the legislature is targeting a

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specific set of situations, and there’s no evidence they wanted to punish someone who didn’t understand that they were taking a risk

o Strict liability criticism Strict liability does not deter, since the actor is unaware (and as a

reasonable person, would not be aware) of the facts that render his conduct dangerous

It is unjust to condemn a person who is not morally culpableo Strict liability support

If an actor knows an activity is governed by strict liability, he will be more careful

Strict liability might keep a lot of people from engaging in certain kinds of conduct

The public supports strict liability Mistake and Mens Rea

o Mistake of Fact MPC

MPC 213.6(1)o Where criminality depends on age being under 10, mistake

is not a defense, but where criminality depends on age other than 10, it’s a defense that the actor believed the child to be above the critical age

MPC 2.04(1)o Mistake of fact or law is only a defense if the mistake

negatives the mens rea of a material element of the offense Common Law

Specific intent o D not guilty of specific intent crime if mistake of fact

negates the specific intent elemento Even unreasonable mistake of fact may exculpate if it

negatives mens reao People v. Navarro , 193 (jet fuel can’t melt someone else’s

wood beams) For a general intent crime, an unreasonable mistake

of fact typically does not exculpate the defendant Where the law requires a specific criminal intent, it

is not enough merely to prove that a reasonable man would have that intent, the defendant himself must have it

If defendant in good faith believed that he had a right to take the beams, even if the belief was unreasonable, defendant is entitled to acquittal because the specific intent required to be proved as an element of the offense has not been established

General intento D not guilty if mistake of fact was reasonable

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o Exceptions Moral wrong doctrine : a court will sometimes

permit conviction of an actor whose mistake of fact was reasonable such that his intentional commission of an immoral act serves as the requisite blameworthiness to justify conviction

Legal wrong doctrine : if a defendant’s conduct, based on the facts as he believed them to be, constitutes a crime, he may be convicted of the more serious offense that his conduct established

Mistake of fact is never a defense to a strict liability offenseo Mistake of Law

MPC MPC 2.02(9)

o Knowledge/recklessness/negligence as to the existence or application of law is generally not an element of an offense

o MISTAKE OF LAW IS NOT A DEFENSE MPC 2.04(1)

o Only would when ignorance negates the specifically-required mens rea

MPC 2.04(3)o Mistake of law is a defense when the statute has not been

made public or when he acts in reasonable reliance on an official statement of law later determined to be invalid

Common Law MISTAKE OF LAW IS NOT A DEFENSE Exceptions

o Mistake negates element of the crime charged (very few crimes require knowledge of the law)

o Reliance on official statement of law People v. Marrero , 197 (prison guard packing, thinks he’s peace

officer)o Mistake of law defense should not be recognized except

where specific intent is an element of the offense or where the relied-upon law has later been properly adjudicated as wrong

o Policy: allowing for an expansion of the mistake of law defense would lead to people willfully ignoring the law

o Dissent: The point of the criminal justice system is to punish blameworthiness; it doesn’t make sense to punish a reasonable mistake, especially when the man is law-abiding and wouldn’t have broken the law if he had known what it was

Cheek v. United States , 207 (good-faith tax-protester)o Case turns on the definition of the word “willfully,” which

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precedent conclusively establishes is the “voluntary, intentional violation of a known legal duty”

o Congress requires specific intent to violate the law as an element of certain federal criminal tax offenses, mostly because tax laws are so complex; they didn’t mean to punish someone who was trying their best

o The government must prove that the law imposed a duty on the defendant, that the defendant knew of this duty, and that he voluntarily and intentionally violated that duty

o Different from Marrero because (1) tax laws are more lenient, and (2) statute requires the actor to behave “willfully,” which incorporates a specific intent

Corporate Criminal Liability Can a corporation be morally culpable? The federal courts and most states have some form of corporate liability

o Expansion of criminalization of business regulatory offenses and prosecutors are increasingly willing to bring criminal charges where they might have historically brought civil charges

o Under current federal law, corporations are subject to all federal criminal offenses unless plainly excluded by the language or context of the statute

Two main concernso Failure to identify or prove corporate intento Sanctions, a corporation can’t be imprisoned, question of whether criminal law is

an appropriate vehicle for controlling corporate behavior State v. Christy Pontiac-GMC, Inc. , SM 11

o A corporation can be convicted of theft and forgery, which are crimes requiring specific intent

o Corporations can be held liable in civil tort for thinks assault and fraud, so they should be criminally liable too, even though they aren’t necessarily people

Common lawo Corporation may be held criminally liable for the acts of agent who

Commit a crime Within the scope of employment With the intent to benefit the corporation

MPC 2.07o Corporation may be held criminally liable if the conduct was “authorized,

requested, commanded, performed, or recklessly tolerated by the board of directors or by a high managerial agent acting in behalf of the corporation within the scope of his office or employment”

o 2.07(1)(a), some statute outside the MPC specifically aimed at corporations or minor violations

o 2.07(1)(b), if a corporation has a duty to perform, and they fail to perform, there is liability

o 2.07(1)(c), everything else, focus on senior management

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Establishes corporate hierarchy Lower level employees can’t demonstrate or speak to the corporation’s

intent Reckless, must be consciously away of employee’s action

Trendso Cooperation without litigationo AG upping prosecution of individuals

Rape Background

o Rapists exclusively men, victims exclusively womeno Husbands excludedo Force requiredo Either utmost resistance by victim or threat of imminent bodily harmo Must be more than just non-consent

More than verbal protest More than pretense of resistance Fact that consent was reluctantly given is irrelevant

o Deep distrust of female accuser Evidence included victim’s sexual history Victim testimony must be clear and convincing with corroboration Rape accusation “is one which is easily made, and once made, difficult to

defend against, even if the person accused is innocent.” “The law requires that you examine the testimony of the complainant with

caution.” Concerns for Modern Rape Law

o Mens reao Force/threatso Consent

Silence Passivity

o Sexual autonomyo Overcriminalization/overbroad statuteso Gradation

Criminal Homicide Overview

o Common Law Origin, Murder At common law, murder was defined as the unlawful killing of another

human being with “malice aforethought”; there was either liability or no liability, gradation was added

Intent to killo Includes awareness that the death would result even if the

actor had no particular desire to achieve such a

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consequenceo Intentional or knowing homicide was murder unless

HOPSAP, in which case it was manslaughter Intent to cause grievous bodily harm

o Includes awareness that serious bodily injury would result Depraved-heart murder

o R+, extreme recklessness regarding homicidal risko Even without any actual intent to kill or injure, includes

causing death in a manner exhibiting “wanton and wilful disregard of an unreasonable human risk”

Intent to commit a felonyo Origin of the felony-murder ruleo Strict liability for homicide committed during the

commission of a felony Before the MPC, most jurisdictions only had one degree of murder Pennsylvania (1794), named “willful, deliberate, or premeditated killing”

first degree, all others second degreeo Common Law Origin, Manslaughter

Early common law did not distinguish between murder and manslaughter Differentiated among criminal homicides to withdraw benefit of clergy

from the more heinous killings Early manslaughter consisted of homicide without malice aforethought

and without justification or excuse Manslaughter is typically divided into:

Voluntary, sudden quarrel or heat of passion Involuntary, in the commission of an unlawful act not amount to a

felony, or in the commission in an unlawful manner, or without due caution and circumspection, of a lawful act which might produce death

MPC 210.1-210.4 vs. Common Lawo MPC

Murder, manslaughter, negligent homicide No degrees Murder: purpose, knowledge, R+ Manslaughter: reckless, EEDREX Negligent homicide: negligent

o Common law Much more varied and less clear Degrees Murder: traditionally malice aforethought, deliberation and premeditation,

felony-murder Manslaughter: HOPSAP

Intentional Killingso Degrees of Murder: The Deliberation-Premeditation Formula

State v. Guthrie , 254 (coworker makes fun, ends up dead)

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WV law indicates “willful, deliberate and premeditated killing” is first degree, and defendant objected to jury instructions that conflated the statutory language with “intent to kill”

Intentional, deliberate and premeditated killing means the killing is done after a period time for prior consideration; must be a time of sufficient duration for the accused to be fully conscious of what he intended

Midgett v. State , 258 (child abused to death) Despite the terrible story, the state must prove premeditation and

deliberation in the killing for first degree murder, and there was not enough evidence; if anything, he likely just wanted to keep beating the child

Dissent: the acts by the father are murder by any legal standard, and it’s up to the jury to decide the degree

State v. Forrest , 261 (son shoots sick dad in the head) Premeditation and deliberation proved by circumstantial evidence:

o Want of provocation on the part of the deceasedo Conduct and statements of the defendant before and after

the killingo Threats and declarations of the defendant before and during

the course of the occurrence giving rise to the death of the deceased

o Ill-will or previous difficulty between the partieso Dealing of lethal blows after the deceased has been felled

and rendered helplesso Evidence that the killing was done in a brutal mattero Nature and number of victim’s wounds

How do we sort out the worst cases? (i.e., Anderson) Length of time Brutality Post-mortem injuries or mutilation Torture Words of the actor Age of the victim Mental health Provocation Vulnerability of victim

o Manslaughter: “Heat of Passion” – HOPSAP Voluntary manslaughter, an intentional homicide done in a sudden heat of

passion (objective), caused by sudden adequate provocation (subjective), before there has been a reasonable opportunity for the passion to cool

NOTE: HOPSAP looks like a justification defense Girouard v. State , 265 (bitchy girlfriend)

o Issue of whether words alone are provocation adequate (based on a reasonable man standard) to justify a conviction of manslaughter rather than one of second

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degree murdero Certain facts historically mitigate murder to manslaughter

because they create passion in the defendant and are not considered the product of free will

o Rule of Provocation Adequate provocation In the heat of passion Sudden, follow provocation before a reasonable

opportunity for the passion to cool Causal connection between the provocation, the

passion, and the fatal acto Words alone are not adequate provocation

The Objective Standard: Who is the Reasonable Man? Whether the reasonable man possesses the defendant’s own

personal characteristics and personal prior experienceso Bedder v. Director of Public Prosecutions , the reasonable

man is a wholly impersonal figure to which no specific characteristics of the defendant are to be attributed

o Homicide Act of 1957, the jury should take into account everything done and said according to the effect it would have on a reasonable man

Director of Public Prosecutions v. Camplin , 278 (kid pan to face)o Consider the reasonable man as “a person having the power

of self-control to be expected of an ordinary person of the sex and age of the accused, but in other respects sharing such of the accused’s characteristics as you think would affect the gravity of the provocation to him”

o The provocation must be such that a reasonable man would not just react, but “would react to the provocation as the accused did”

o Policy: there’s a difference between treating age as a characteristic in assessing the gravity of the provocation and in determining the degree of self-control we expect from that person; we shouldn’t require “old heads on young shoulders”

MPC 210.3, EEDREX NOTE: EEDREX looks like an excuse defense People v. Casassa , 284 (ex from hell)

o State adopted MPC language: “extreme emotional disturbance for which there was a reasonable explanation or excuse”

EED is wholly subjective Reasonableness to be determined from the

viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be; objective

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o EEDREX grows out of HOPSAP, but is much more broad because it eliminates the timing requirement

o NOTE: while purposely ambiguous and some external circumstances must be taken into account, idiosyncratic moral values are not part of the actor’s situation

Unintentional Killings: Unjustified Risk-Takingo Common law on risk-taking

Civil liability for wrongful death May be uncontestable fault and some civil liability Less than criminality

Involuntary manslaughter Gross deviations from standard care used by an ordinary person

where negligent conduct can reasonably be said to manifest a wanton or reckless disregards of human life

Depraved-heart murder Acts of a life-endangering nature so reckless that they manifest a

wanton indifference to human life NOTE: at its bottom level, the common law may pick up some cases

where there was no recognition of the risk by the actoro MPC

Manslaughter (210.3) Reckless criminal homicide

o Consciously disregard a substantial and unjustifiable risk that the material element exists or will result from his conduct

o Disregard involves a gross deviation from a law-abiding person in the actor’s situation

EEDREX, reasonableness determined from viewpoint of a person in the actor’s situation under the circumstances as he believes them to be

Negligent homicide (210.4) Negligent criminal homicide Should be aware of a substantial and unjustifiable risk that the

material element exists or will result from his conduct Failure to perceive the risk considering nature, purpose, and

circumstances known to him, involves a gross deviation from the standard of care of a reasonable person in the actor’s situation

o People v. Moore , 295 (reckless driving, knew they were dead, so he fled) Charged with second degree murder (catchall, first requires “willful,

deliberate, and premeditated killing” or felony-murder)o People v. Knoller , 296

Malice may be express or implied Express when there is manifested a deliberate intention to take

away the life of a fellow creature Implied when no considerable provocation appears, or when the

circumstances attending the killing show an abandoned and

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malignant hearto Defendant must be aware of the risk of death to anothero Jury instructions should include the straightforward

language of “conscious disregard for human life”o State v. Williams , 300 (dead baby)

Ordinary negligence is a failure to exercise ordinary caution, the kind of caution a reasonable man would exercise under similar conditions, necessary to make an excuse

Regardless of actor’s good intentions, ignorance, or good faith Only requires failure to measure up to reasonable prudence If ordinary negligence proximately causes death, then they are

guilty of manslaughter Unintentional Killings: Unlawful Conduct

o The Felony-Murder Rule MPC 210.2(1)(b)

No felony murder rule Allows the commission of a felony to raise a presumption of

extreme indifference to the value of human life Theory

Deterrenceo Felony-murder rule is a doctrine intended to deter

negligent and accidental killings during the commission of felonies; co-felons will dissuade each other from the use of violence if they may be liable for murder

o Felony-murder rule is a deterrent to dangerous felonies; punishing both accidental and deliberate killings that result from the commission of a felony is the strongest possible deterrent to undertaking inherently dangerous felonies

o Criticism: How do you deter an unintended act? How many felons with know about the felony-

murder rule? It’s doubtful that serious crimes are deterred by

different weights of punishment It makes more sentence to have more punishment

for the act the criminal intended Transferred intent

o The intent to commit the felony is “transferred” to the act of killing in order to find culpability for the homicide; serves the purpose of relieving the state of the burden of proving premeditation or malice

o Criticism: The intent to commit the felony and the culpability

for the killing are distinct and separate; intent to burglarize is not the same as the malice

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aforethought required for murder Retribution/General culpability

o Justifies conviction for murder simply on the basis that the defendant committed a felony and a killing occurred; justifications include deterrence of the underlying felony and the notion that the felon has exhibited an “evil mind” justifying severe punishment

o “Evil mind” theory, one who does bad acts cannot complain about being punished for their consequences, no matter how unexpected

o Criticism: effectively eliminates a mens rea; the occurrence of a killing is punished as a murder regardless of the defendant’s culpability

People v. Fuller , 309 (deadly police chase after burglary) Because burglary was included in the CA statute, defendant must

be guilty Policy: if the felony-murder statute did not explicitly enumerate

the qualifying felonies, the court would say there was no felony-murder because automobile burglary is not inherently dangerous to human life; the goal of the statute is to deter those engaged in felonies from killing negligently or accidentally

People v. Howard , 319 (deadly police chase) CA felony murder required “a felony inherently dangerous to

human life” to get second degree murder; crime of driving with a willful or wanton disregard for the safety of persons or property while fleeing from a pursuing officer is not inherently dangerous for the purposes of the second degree felony-murder rule

To decide what is inherently dangerous, we look to the elements of the felony in abstract, not at the facts of the case

o Can the crime be committed without creating a substantial risk that someone will be killed?

o There are laws (321) which have and have not been held as inherently dangerous

State v. Goodseal , SM 24 (SILKY) Felony-murder eliminates the mens rea for the the death; bumps

what would have been negligent homicide up to murder The felony must be an inherently dangerous felony, but to

determine whether it is inherently dangerous, the factfinder can consider the circumstances and facts of the case in addition to the nature of the offense in the abstract

Analysiso Qualifying predicate felonyo Independent felonyo Timingo Causal connection

State v. Sophophone , 331 (D1 in car, D2 dies, D1 guilty?)

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Two approaches to felony murder where killing caused by third party

o Agency Approach The felony murder doctrine does not apply if the

person who directly causes the death is a non-felon Stems from accomplice liability theory, the acts of

the primary party are imputed to an accomplice A co-felon cannot be convicted of the homicides

because the primary party was not the person with whom she was an accomplice

o Proximate-Causation Approach A felon may be held responsible for a killing

committed by a non-felon if the felon set in motion the acts which resulted in the victim’s death

If an act by one felon is the proximate cause of the homicidal conduct by the non-felon or the police officer, murder liability is permitted

To impute the act of killing the intruder when it was lawful and courageous at the hands of law enforcement is contrary to strict construction requirements; don’t apply proximate causation

o The Merger Rule People v. Smith , 326 (child abuse resulting in death)

A second degree felony-murder instruction may not properly be given when it is based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged

Because the purpose must not just be assault, we can’t combine the assault of the child plus the murder; this would be contrary to the function of felony-murder

o Extends rule beyond rational functiono When the person is willfully assaulting a child, they’re not

likely to be deterred because of the felony-murder rule Capital Murder

o Constitutional and Policy Debate Furman v. Georgia set aside death sentences for 4 GA cases, justices were

split: some said capital punishment is always unconstitutional, some said capital punishment when there was too much discretion given to the jury, some said capital punishment was fine; Furman ended executions nationwide because all death penalty statutes were infirm; 35 states reformulated their sentencing provisions

NOTE: Furman required states to be more careful, giving juries adequate information and guidance

To limit discretion, most states enacted death penalty laws like MPC 210.6 (post-conviction sentencing hearing involving aggravating and mitigating factors)

Gregg v. Georgia , 339 (guide the jury)

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The death penalty itself doesn’t violate the constitution The GA statute (bifurcated proceeding, sentencing authority is

apprised of the information relevant to the imposition of the sentence and provided with standards to guide its use, looks like MPC 210.6) was carefully drafted to meet the concerns of Furman

Woodson v. North Carolina , 346 (no, you can’t kill everyone) Murder statute imposes death penalty for all first-degree

convictions Inviting juries to decide which murderers would live by the first

and second degree distinction didn’t give them appropriate standards

Fails “to allow the particularized consideration of relevant aspects of the character and record of each convicted defendant”

Prosecutors deciding which charges are making unreviewable decisions

o The Quest for Reliable Procedures The Lingering Question of Racial Discrimination

McClesky v. Kemp , 355 (racist death penalty)o Whether statistical study showing risk that race enters into

capital sentencing determinations proves capital sentence is unconstitutional under the 8th or 14th amendments

o In order to prove an equal protection claim, defendant must prove the existence of purposeful discrimination by the decision-makers in this case, not just discriminatory result

o There is an element of discretion involved in any jury, and a jury is made up of individuals that may come to different decisions, so disparities in sentencing are inevitable; this is a challenge to the discretion that Gregg and Woodson require

o Policy: if we allow the claim that racial bias tainted capital sentencing, we’d have to examine every other form of criminal punishment

o Dissent: it’s insufficient to say that the importance of discretion trumps the importance of rational and fair sentencing; because the death penalty is such a unique and final punishment, racial disparities are especially wrong

o NOTE: the study found that racial bias was most likely to come into play in the cases in the middle; there were some aggravating factors, but not the worst of the worst

Victim Impact Evidence Payne v. Tennessee , 362

o Whether the 8th amendment bar the admission of victim impact evidence during the penalty phase of a capital trial

o Booth required a defendant to be treated as an individual; constitution requires an individualized determination on the basis of the character of the individual and the

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circumstances of the crimeo Factors beyond characteristics and circumstances must

have some bearing on the defendant’s personal responsibility and moral guilt; an assessment of harm has historically been important in determining both the crime and the punishment

o Victim impact evidence shows each victim’s uniqueness; the defendant gets to put forth a bunch of mitigating statements, we should allow the victims to explain the specific harm caused by the defendant (issue of balance)

o Substantive Limitations on the Death Penalty Tison v. Arizona , 371 (father-son prison break)

Enmund v. Florida , overturned death sentence of a getaway driver based on a “broad societal consensus” that the punishment was disproportional to the crime; court acknowledge result would be different “if the likelihood of a killing in the course of a robbery were so substantial that one should share the blame for the killing if he somehow participated in the felony”

o Reckless indifference to human life as demonstrated in this case represents a highly culpable mental state, one that may be taken into account in making a capital sentencing judgment

o Major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement

Dissent: There’s a huge difference between intending to act and acting recklessly, because we base punishment on the choices an individual has made, so we need to maintain the differential treatment of those punishments

General Defenses to Crimes Categories of Defenses

o Failure of proof Specific offenses Because of the conditions that are the basis for the defense, all elements of

the offense charged cannot be proven, essentially the negation of an element required by the definition of the offense

Example: mistake of fact in an offense that requires knowledge of a facto Offense modification

Specific offenses While the actor has apparently satisfied all elements of the offense

charged, he has not in fact caused the harm or evil sought to be prevented by the statute defining the offense

Example: parent pays ransom to child’s kidnapper, against police adviceo Justification

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General defense Under special justifying circumstances, a legally recognized harm is

outweighed by the need to avoid an even greater harm or to further a greater societal interest

Not an alteration of the statutory definition of the harm sought to be prevented; the harm caused by the justified behavior remains a legally recognized harm which is to be avoided whenever possible

Example: actor burns field between forest fire and town, firebreak saves thousands of lives

o Excuse General defense Admit that the act may be wrong, but excuse the actor because conditions

suggest the actor is not responsible for his deed Defendant satisfies all the elements of the offense, and they’ve created the

very harm sought to be prevented, and it is not outweighed by any greater societal harm avoided or greater societal interest furthered; the defendant is exculpated only because her condition at the time of the offense suggests she has not acted through a meaningful exercise of free will and therefore is not an appropriate subject for criminal liability

Example: crazy peopleo Nonexculpatory public policy defense

Defendant’s conduct is harmful and creates no societal benefit; defendant is blameworthy, but the societal benefit comes from foregoing his conviction

Example: statute of limitations, diplomatic immunity, incompetency Principles of Justification

o Society says D’s conduct was morally good, socially desirable, or not wrongfulo Structure and Underlying Theories

Internal structure: triggering conditions permit a necessary and proportional response

Triggering conditions are the circumstances that must exist before an actor will be eligible to act under a justification

Necessity requirement demands a defendant only act when and to the extent necessary to protect or further the interest at stake

Proportionality requirement places a limit on the maximum harm that may be used in protection or furtherance of an interest

Public Benefit Theory: conduct is not justified unless it is performed in the public’s interest; usually limited to public officers; benefit to society is the underlying motivation for the actor’s conduct

Moral Forfeiture Theory: in some circumstances, society may determine that it will no longer recognize the wrongdoer’s interest in his life

Moral Rights Theory: the actor has a right to protect a particular moral interest; provides the actor with an affirmative right to protect her threatened moral interest

Superior Interest/Lesser Harm Theory: authorizes conduct when the interest of the defendant outweigh those of the person she harms; the

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interests of the parties and the values they seek to enforce are balanced; in each case, there is a superior interest, and as long as that interest is pursued, the conduct is justified

o Self-Defense General Principles

MPC 3.04: actor believes such force is immediately necessary for the purpose of protecting himself against the use of unlawful force

Common law: a person is justified in using deadly force if (1) he is not the aggressor, and (2) he reasonably believes that such a force is necessary to repel the imminent use of unlawful deadly force by the other

United States v. Peterson , 481 (stealing windshield wipers)o “The law of self-defense is a law of necessity,” “necessity

must bear all semblance of reality, and appear to admit of no other alternative, before taking life will be justifiable as excusable”

There must have been a threat of the use of deadly force

Threat must have been unlawful and immediate Defender must have believed he was in imminent

peril of death or serious bodily harm and that his response was necessary to save himself therefrom

Beliefs must be reasonable in light of the circumstances

Doctrine of Mutual Escalation : One who is the aggressor in a conflict culminating in death cannot invoke the necessities of self-preservation; only in the event that he communicates to his adversary his intent to withdraw and in good faith attempts to do so is he restored to his right to self-defense

o Common law aggressor doctrine requires unlawful act, reasonably knowing it was likely to produce a reaction

o MPC 3.04(2)(b)(i) requires purposely causing death/bodily harm, whittles down the doctrine and only punishes those who act with the intention of provoking

Retreato Conflict in common law jurisdictions, but majority don’t

have retreat requiremento MPC 3.04(2)(b)(ii), concerned with the safety of the person

who didn’t create the problemo Never required to retreat from your own home

Reasonable Belief Requirement NOTE: 3.04 doesn’t allow any irrational or insane belief to be

justified, look to 3.09(2); if you were mistaken, and you were reckless/negligent in having your belief, you only lose the defense if reckless/negligence was sufficient for the crime

People v. Goetz , 492 (subway vigilante)

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o Whether the prosecutor erred in introducing an objective element to the justification defense; triggering circumstance requires the actor reasonably believe another person is using or about to use deadly force, or is attempting to commit a felony

o The legislature looked to the MPC provisions on justification, but they didn’t adopt them verbatim

MPC 3.04(2)(b) requires only a defendant charged with murder show that he believed use of deadly force was necessary; if his belief were wrong and recklessly or negligently formed, he could still be charged with some other homicide

NY did not follow this, using instead a single statutory section which would provide either a complete defense or none at all; mostly used 3.04, but included “reasonably” before “believes”

o Policy: to completely exonerate such an individual, no matter how aberrational or bizarre his thought patterns, would allow citizens to set their own standards for the permissible use of force.

State v. Wanrow , 506 (hit the molester with a bat)o Justification of self-defense is to be evaluated in light of all

facts and circumstances known to the defendant, including those know substantially before the killing

o Jury should consider actions in light of defendant’s own perceptions of the situation, including those that are a result of outside factors (here, our nation’s history of sex discrimination)

o Policy: Care must be taken to assure that our self-defense instructions afford women the right to have their conduct judged in light of the individual physical handicaps which are the product of sex discrimination, to fail to do so is to deny the right of the individual woman to trial by the same rules which are applicable to male defendants

Battered Womeno State v. Norman I , 513

Requirements of self-defense Subjective: whether it appears to defendant

and that defendant believes it’s necessary to kill the deceased in order to save herself from death or great bodily harm (what she herself perceived at the time)

Objective: defendant’s belief must be reasonable, measured by standard of the person of ordinary firmness under the same circumstances

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In some circumstances, the killing of a passive victim may not preclude self-defense; here, sleep was a momentary hiatus, and the defendant just took her first chance to protect herself, so the act was not without provocation

o State v. Norman II , 518 Right to kill in self-defense is based on the

necessity of killing an unlawful aggressor to save oneself from imminent death or great bodily harm at his hands; imminence is instantaneous

Law requires that defendant claiming that a homicide was justified establish that she reasonably believed at the time of the killing she otherwise would have immediately suffered death or great bodily harm; requirement ensures that deadly force will be used only where it is necessary as a last resort

Policy: Stretching the law of self-defense beyond the immanency requirement would categorically legalize the opportune killing of abusive husbands on the basis of subjective speculation about the probability of future felonious assaults; homicidal self-help would then become a lawful solution, and perhaps the easiest and most effective solution

o Defense of Habitation/Property MPC 3.06 State v. Boyett , 534 (engaged, except lesbian lover)

NM defense of habitation gives a person the right to use lethal force against an intruder when such force is necessary to prevent the commission of a felony in his or her home

o Use of deadly force is justified only if the defendant reasonable believed that the commission of a felony was immediate and it was necessary to kill intruder to prevent that occurrence

o Grounded in the theory that the home is one of the most important institutions of the state

Defense of habitation does not require an intruder to cross the threshold of the defendant’s home; person has a right to defend his or her residence not only when an intruder is already inside the home, but also when an intruder is outside the home and attempting to enter to commit a violent felony

o Necessity General Principles

MPC 3.02o Actor believes necessary to avoid harmo Harm is greater than offense avoiding that harm

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o Actor didn’t recklessly or negligently bring about the situation in offenses requiring reckless/negligence; probably don’t lose defense for R+

o Different from common law: no imminent or adequate alternative requirement, available in homicide

o Only two states have adopted 3.02 Common Law

o Lesser evils, preventing greater conduct than the harm he expects by his conduct

o Imminent harmo Causal elemento Blamelessness of actoro Not available in homicide prosecution

Nelson v. State , 541 (“borrowed” city’s truck, broke it)o Defense of necessity may be raised if the defendant’s

actions, although violative of the law, were necessary to prevent an even greater harm from occurring.

o Three essential elements to the defense: The act charged must have been done to prevent a

significant evil There must have been no adequate alternative The harm caused must not have been

disproportionate to the harm avoidedo The necessity defense is available if a person acted in the

reasonable belief that an emergency existed and there were no alternatives available even if that belief was mistaken; the person’s actions should be weighed against the harm reasonably foreseeable at the time

Civil Disobedience United States v. Schoon , 548 (protesting El Salvador)

o To invoke defense, defendants must show They were faced with a choice of evils and chose

the lesser evil They acted to prevent imminent harm They reasonably anticipated a direct causal

relationship between their conduct and the harm to be averted

They had no legal alternatives to violating the lawo Necessity defense is inapplicable to cases involving

indirect civil disobedience Defense to Murder?

The Queen v. Dudley and Stephens , 49/553 (3 hour tour)o Ship lost at sea; ran out of food and water, and eventually

killed the weaker boy; 4 days later, found by a passing vessel

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o Some argue that it’s justified to take the life of another to save your own, but this is used within the standard definition of necessary; the temptation to act here was not necessity

o A man has no right to declare temptation to be an excuse, though he might himself have yielded to it

Principles of Excuseo Although actor committed the elements of the offense and his actions were

unjustified, the law doesn’t blame him for his wrongful conducto Why Do We Excuse Wrongdoers?

Causation Theory: a person shouldn’t be blamed for her conduct if it was caused by factors outside her control

Character Theory: punishment should be proportional to a wrongdoer’s moral desert, and that desert should be measured by the actor’s character

Free Choice/Personhood Theory: A person may properly be blamed for her conduct if, but only if, she had the capacity and fair opportunity to function in a uniquely human way; free choice exists if the actor had the substantial capacity and fair opportunity to

Understand the facts relating to her conduct Appreciate that her conduct violates society’s mores Conform her conduct to the dictates of the law

o Duress General Principles

MPC 2.09o Coerced by unlawful force which “a person of reasonable

firmness in his situation” couldn’t resist; only triggered by force

o Not available if actor recklessly or negligently put himself in that position

o No bar to defense in murder prosecution Common Law

o Another person unlawfully threatened imminently to kill or grievously injure her or another person unless she committed the crime

o She is not at fault for exposing herself to the threato Does not apply to murder

United States v. Contento-Pachon , 564 (cocaine balloons)o Three elements of duress defense

An immediate threat of death or serious bodily injury

A well-grounded fear that the threat will be carried No reasonable opportunity to escape the threatened

harmo Duress negates the existence of the requisite mens rea

for the crime in question, whereas necessity negates the

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actus reus Necessity Versus Duress

People v. Unger , 572 (escaping prison rape)o Difference between compulsion (duress) v. necessity

Compulsion comes from human power, necessity comes from forces of nature

Compulsion requires impending, imminent threat of great bodily harm together with a demand that the person perform the specific criminal act for which he is eventually discharged

Where the defense of compulsion is successfully asserted the coercing party is guilty of the crime

o Prison escapes due to fear of sexual assaults don’t really fit into either compulsion or necessity, but commentators have said necessity is the closest

Not deprived of free will by threat of imminent physical harm

He believed he was forced to choose between two evils

Testimony was clearly sufficient to raise affirmative defense of necessity

o Intoxication MPC v. Common Law

MPCo Essentially, if offense requires purpose or knowledge,

intoxication may be a defense; if recklessness, not a defense (2.08)

2.08(2), special rule for recklessness; evidence cannot be considered to disprove the conscious disregard because if you weren’t drunk, you’d have seen/known it

“Negatives an element of the offense,” common law general/specific intent distinction doesn’t apply

o No liability for involuntary intoxication (2.08(4))o Just making the point that if you don’t have a certain intent

(regardless of why you don’t have that intent), you’re guilty Common Law

o If general intent, evidence of voluntary intoxication is not admissible to deny culpability

o If specific intent, varies by jurisdiction United States v. Veach , 584 (drunk in a national park)

Intoxication, whether voluntary or involuntary, may preclude the formulation of specific-intent and thus serve to negate an essential element of certain crimes

Only the mens rea of a specific-intent crime that may be negated by a voluntary intoxication defense; the defense has no

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applicability to general intent crimes Here, defendant should have been allowed to present evidence to

the jury that he was too intoxicated at the time of his arrest to form the requisite specific intent for 18 USC 115(a)(1)(B)

NOTE: intoxication is a failure of proof State v. Dufield , SM 39 (brutal scissor rape and killing of sister)

Under state law, recklessness can’t be negated by voluntary intoxication

The “circumstances manifesting extreme indifference” from R+ is measured by the degree of divergence from the norm of acceptable behavior; proof of voluntary intoxication is irrelevant just as it is in reckless

Policy: any alternative jury instruction allowing introduction of intoxication evidence only for the extreme indifference element would be too confusing for a jury

o Insanity M’Naghten , Hinkley 15

Person is legally insane if at the time of the act, “he was laboring under such a defect of reason as (1) not to know the nature and quality of the act he was doing, or (2) if he did know it, that he did not know what he was doing was wrong”

Originally tested D’s knowledge of nature and quality of his action, many now use “appreciate”

Requires complete cognitive impairment Irresistible Impulse

Supplement to M’Naghten Person is insane if, as the result of mental illness or defect, she

acted with an irresistible and uncontrollable impulse, or if she lost the power to choose between right and wrong, and to avoid doing the act in question, as that he free agency was at the time destroyed

Product Test State v. Pike, “No man shall be held accountable, criminally, for an

act which was the offspring and product of mental disease” Asks whether the defendant’s conduct itself was the product of

mental illness MPC 4.01

Broadened M’Naghten/irresistible impulse Person is not responsible for her conduct if, at the time of the

criminal act, as the result of a mental disease or defect, she lacked the substantial capacity either (1) to appreciate the criminality/wrongfulness of her actions, or (2) to conform her conduct to the dictates of the law

Only requires substantial impairment, not complete impairment Post-Hinkley

Guilty but mentally ill Restrict scope of expert testimony

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Defendant has burden of proof on insanity claims Some outright bans of the defense

Inchoate Offenses Overview

o Major functions of punishing inchoate offenses Firm legal basis needed for police intervention The actor is disposed towards the commission of these crimes, so we need

a legal basis upon which the special danger these actors present may be assessed and dealt with

When the actor’s failure to commit the substantive offense is due to a fortuity, his exculpation on that ground would involve inequity of treatment that would shock the common sense of justice

Attempto General Principles: the principle purpose of punishing an attempt is not

deterrence, it is to provide a basis for law enforcement officers to intervene before an individual can commit a completed offense

o Common Law vs. MPC Common law didn’t have a general theory; attempt punishments were

fixed at half the maximum for a completed crime or 10-50 years for crimes punishable by death or life imprisonment

MPC 5.05(1) treats attempt, solicitation, and conspiracy the same for sentencing

NOTE: there’s no general federal statute for attempto Mens Rea

MPC 5.01(1) For all, requires purpose For an incomplete attempt, requires a substantial step

People v. Gentry , 717 (“accidentally” set girlfriend on fire) A finding of specific intent to kill is a necessary element of the

crime of attempted murder Jury instructions must make it clear that specific intent to kill is the

pivotal element of that offense and intent to do bodily harm or knowledge that act may result in death is not enough

Bruce v. State , 721 Because a conviction for felony murder requires no specific intent

to kill, it follows that because a criminal attempt is a specific intent crime, attempted felony murder is not a crime in Maryland

Almost every state follows Bruce, except Florida: “any person who perpetrates or attempts to perpetrate any enumerated felony and who commits, aids, or abets and intentional act that is not an essential element of the felony and that could, but does not, cause the death of another” is guilty of attempted felony-murder, an offense punishable by imprisonment for a term not exceeding life

NOTE: the mens rea for attempt is usually higher than the mens rea of the

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completed offense There’s no resulting crime No direct proof of intent We’re hesitant to police thoughts Social harm of attempt is less Usually less conduct, more ambiguity

o Actus Reus How Close?

MPC 5.01o Requires a substantial step planned to culminate in the

crime for the incomplete attempto Pushes us earlier on the timeline, which means it allows

voluntary abandonment and renunciation (5.01(4))o Seems to protect us from dangerous people, less concerned

with the dangerous act Common law, 725

o Physical proximity: overt act required for an attempt must be proximate to the completed crime, or directly tending toward the completion of the crime, or must amount to the commencement of the consummation; (Hinkley has the fun outside of the hotel) People v. Rizzo

o Dangerous proximity: the greater the gravity and probability of the offense, and the nearer the act to the crime, the stronger is the case for calling the act an attempt; (Hinkley has the fun outside of the hotel) People v. Rizzo

o Indispensable element: a variation of the proximity tests which emphasizes any indispensable aspect of the criminal endeavor over which the actor has not yet acquired control (Hinkley has a weapon and access to the president); State v. Reeves

o Probable desistance: the conduct constitutes an offense if, in the ordinary and normal course of events, without interruption from an outside source, it will result in the crime intended (Hinkley writing the letter? or drawing the gun?)

o Res ipsa loquitor: “the thing speaks for itself,” the moment where the attempt is unambiguous; an attempt is committed when the actor’s conduct manifests an intent to commit a crime (Hinkley points gun at the president); People v. Miller

o NOTE: common law pushes us later in the timeline, seems to protect us from dangerous conduct; abandonment is not a defense!

Distinguishing Preparation From Perpetration United States v. Mandujano , 724

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o Preparation alone is not enough, there must be some appreciable fragment of the crime committed, it must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter, and the act must not be equivocal in nature

Commonwealth v. Peaslee , 729 (too far away to set on fire)o If accused intended to rely upon his own hands to the end,

he must be shown to have had a present intent to accomplish the crime without delay, and to have had this intent at a time and place where he was able to carry it out

o Some preparations may amount to an attempt, it is a question of degree: if the preparation comes very near to the accomplishment of the act, the intent to complete it renders the crime so probably that the act will be a misdemeanor

People v. Rizzo , 732 (makin’ my way downtown)o Defendant and other planned to rob someone, but they

never found himo The act amounts to an attempt when it is so near to the

result that the danger of success is very great; there must be dangerous proximity to success

People v. Miller , 734 (walking across field to finish threat)o Up to moment gun was taken, no one could say with

certainty whether the defendant had come into the field to carry out his threat to kill Jeans or to demand his arrest by the constable; his acts do not constitute attempted murder

o Policy: we want evidence of a direct act because in the majority of cases up to that time the conduct of the defendant, consisting merely of acts preparation, has never ceased to be equivocal

State v. Reeves , 737 (girls planning to kill teacher)o When an actor possesses materials to be used in the

commission of a crime, at/near scene of the crime, and where the possession can serve no lawful purpose under the circumstances, the jury is entitled, but not required, to find a substantial step toward the commission of the crime if such action is strongly corroborative of the actor’s overall criminal purpose

o Special Defenses Impossibility

MPC 5.01(1)(c) effectively abandons impossibility; 5.05(2) has a mitigation for ridiculously impossible impossibility

People v. Thousand , 745 (statutory mistake)o Factual impossibility exists when D’s intended end

constitutes a crime but she fails to consummate it because of a factual circumstance unknown to her or beyond her

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controlo Legal impossibility

Pure legal impossibility exists if the criminal law does not prohibit D’s conduct or the result that she has sought to achieve (even though they believe it is criminal)

Hybrid legal impossibility exists if D’s goal was illegal, but commission of the offense was impossible due to a factual mistake by her regarding the legal status of some factor relevant to her conduct; the mistake affects the legal status of some aspect of D’s conduct

o Attempt consists of An attempt to commit an offense prohibited by law,

and Any act towards the commission of the intended

offense Also includes an intent to do an act or to bring

about certain consequences which would in law amount to a crime; and an act in furtherance of that intent which, as it is most commonly put, goes beyond mere preparation

o Nonexistence of a minor victim does not give rise to a viable defense to the attempt charge in this case

o MPC solved ambiguity by getting rid of impossibility altogether, though 5.05(2) does provide some very narrow mitigation when something is highly unlikely to occur

Abandonment Commonwealth v. McCloskey , 759 (prison break)

o Appellant was still within the prison, only contemplating a breach and not yet attempting the act; voluntary

o Concurring: It’s just good policy, the defense of complete and permanent abandonment should be allowed because voluntary abandonment negates the conclusion that the accused continues to be dangerous, and the knowledge that voluntary abandonment exonerates one from criminal liability provides a motive to desist prior to completion of the crime

Conspiracyo General Principles

There’s a special danger of group criminality, so the punishment comes really early on the timeline

MPC 5.03(5) requires an overt act in pursuance of the conspiracy, but is unilateral and only requires one person to agree (5.03(1)(a))

NOTE: common law DOES NOT merge conspiracy and the completed offense, MPC 1.07 does allow merger

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People v. Carter , 777 Criminal conspiracy is “a partnership in criminal purposes,” a

mutual agreement or understanding, express or implied, between two or more persons to commit a criminal act or to accomplish a legal act by unlawful means

Crime complete upon formation of the agreement, not necessary to establish any overt act in furtherance of the conspiracy as a component of the crime; specific intent is required for conviction

o Intent to combine with otherso Intent to accomplish the legal objective

Conspiracy is separate and distinct from the substantive crime that is its object; guilt or innocence of a conspirator does not depend upon the accomplishment of the goals of the conspiracy; a conviction of conspiracy does not merge with a conviction of the complete (can be convicted of both conspiracy and the substantive crime)

Pinkerton v. United States , 780 (brother where art thou) Pinkerton Doctrine : Each petitioner could be found guilty of the

substantive offenses if it is found at the time those offenses were committed, petitioners were parties to an unlawful conspiracy and the substantive offenses charged were reasonably foreseeable and were in fact committed in furtherance of the conspiracy

This is a continuous conspiracy, so unless you remove yourself from it, an overt act of one partner may be the act of all without any new agreement

Testo Demonstrate conspiracy (agreement and maybe overt act)o Act in furtherance of the conspiracyo Act is reasonably foreseeable

o Mens Rea MPC 5.03

Purpose Agrees someone will engage in conduct Agrees to aid in planning or commission of crime Requires overt act 5.03(5)

Common Law Intent to conspire with others Intent to accomplish the object offense

People v. Swain , 785 (drive-by) Conspiracy, two or more persons conspiring to commit any crime

with proof of the commission of an overt act by one or more to such agreement; specific intent crime, including intent to agree and intent to commit the offense which is the object of the conspiracy

To sustain conviction for conspiracy to commit a particular offense, the prosecution must show not only that the conspirators

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intended to agree, but also that they intended to commit the elements of that offense

People v. Lauria , 789 (phone sex) The intent of a supplier who knows of the criminal use to which

his supplies are put to participate in the criminal activity connected with the use of his supplies may be established by

o Direct evidence that he intends to participateo Through an inference that he intends to participate based on

His special interest in the activity The aggravated nature of the crime itself

Though we usually require purpose (specific intent), there are a limited subset of cases (usually the more serious crimes) where knowledge is sufficient without subjective interest

NOTE: this is the intent to commit element MPC 5.03 requires purpose, intent to agree and intent that the object crime

be carried outo Actus Reus

Commonwealth v. Azim , 797 (getaway driver) Conspiracy may be inferentially established by showing the

relationship, conduct, or circumstances of the parties and the overt acts on the part of the co-conspirators have uniformly been held competent to prove that a corrupt confederation has in fact been formed

Once conspiracy is established and upheld, a member of the conspiracy is also guilty of the criminal acts of his co-conspirators

Commonwealth v. Cook , 799 (sidewalk rape) State must prove an agreement and show defendant was aware of

the objective of the conspiracy which was alleged; may rest entirely or mainly on circumstantial evidence, but “some record evidence” is insufficient

Neither association with a criminal nor knowledge of illegal activity constitute proof of participation in a conspiracy

When the evidence tends to sustain either of two inconsistent propositions, neither can be said to have been established by legitimate proof

o Bilateral or Unilateral? People v. Foster , 804 (unilateral robbery)

IL has a solicitation statute that lays out everything that counts as conspiracy under the unilateral theory, and the penalties for solicitation and conspiracy are very similar; there’s little need for the legislature to adopt the unilateral theory since the solicitation statute exists

While MPC has a separate solicitation offense and still provides for the unilateral theory, the commentary is explicit on its intent

o Scope of an Agreement Kilgore v. State , 810 (super weird comedy of errors)

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Agreement necessary to form conspiracy is not “meeting of the minds,” may be “mere tacit understanding between two or more people that they will pursue a particular criminal objective”; no need for written or oral statement to expressly communicate agreement

It is possible for various people to be parties to a single conspiracy without knowing each other, but in chain conspiracies, there must be a community interest in which coconspirators depend on the success of other coconspirators

Braverman v. United States , 815 Gist of crime of conspiracy is the agreement or confederation of

the conspirators to commit one or more unlawful acts When a single agreement to commit one or more substantive

crimes is evidenced by an overt act, as the statute requires, the precise nature and extent of the conspiracy must be determined by referent to the agreement which embraces and defines its objects

o Defenses Iannelli v. United States , 818 (gambling house)

Wharton’s Rule , an exception to the common law principle that the conspiracy and object offense are distinct and separately punishable, states when an object crime inherently requires 2 parties to agree to do something (adultery), conspiracy is built in and you can’t convict for both; when “plurality of agents” is an essential element of the crime, crime and conspiracy must merge

Third-party exception renders Wharton’s Rule inapplicable when the conspiracy involves the cooperation of a greater number of persons than is required for the commission of the substantive offense (holding based on legislative intent)

Gebardi v. United States , 823 (vacation sex) When the Mann Act and the conspiracy statute came to be

construed together, the same participation which the former contemplates as an inseparable incident of all cases in which the woman is a voluntary agent at all, but does not punish, was not automatically to be made punishable under the latter

If the law requires a specific characteristic for the victim, that victim won’t be charged for conspiracy

Woman petitioner has not violated the Mann Act and is not guilty of conspiracy to do so; there is no proof that the man conspired with anyone else to bring about the transportation

See also: In Re Meagan R. People v. Sconce , 825

Once the defendant’s participation in the conspiracy is shown, it will be presumed to continue unless he is able to prove, as a matter of defense that the effectively withdrew from the conspiracy

Withdrawal requires an affirmative and bona fide rejection or repudiation of the conspiracy, communicated to the coconspirator

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Withdrawal is a complete defense only if accomplished before the commission of an overt act

MPC 5.03(6) is an eraser, it’s a complete defense eliminating liability MPC 5.03(7) is a clock, it’s an incomplete defense that indicates when the

conspiracy ends; statute of limitations, limits hearsay, etc. NOTE: common law doesn’t have abandonment, only withdrawal

Accomplice Liability General Principles

o MPC 2.06(2)

(a), innocent agent theory (b), vicarious liability (c), accomplice

2.06(3), accomplice if purpose of promoting/facilitating commission of offense

(i) solicitation (ii) aids/agrees/attempts to aid (iii) omission counts where there’s a duty

2.06(4), in result crimes, accomplice must act with same culpability as sufficient for offense

Captures things like Riley Also captures giving a drunk person keys/telling someone to drive

as fast as possible, where the goal was to facilitate conduct, but not the result

You may not know the result, but you’re at least reckless WITHOUT 2.06(4), you can’t capture these cases

2.06(7), abandons derivative liability; accomplice can be liable even without conviction of principal

o Common Law Aiding/abetting/encouraging Might be purpose, might be knowledge (intentionally aids, acts with level

of culpability required by offense) Also includes Natural and Probably Consequences and Pinkerton Movement away from derivative liability; defendant liable if principal is

guilty, not necessarily convictedo Common Law Terminology

State v. Ward , 828 Principals

o First degree (perpetrators): The one who actually commits the crime

o Second degree (abettors): The one who is guilty of felony for having aided, counseled, commanded, or encouraged the commission of the crime in his presence

Accessorieso Before the fact (inciters): The one who is guilty of felony

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for having aided, counseled, commanded, or encouraged the commission of the crime without having been present at the moment of perpetration

o After the fact (criminal protectors): With knowledge of the other’s guilt, renders assistance to a felon in an effort to hinder his detection, arrest, trial, or punishment

Elements of Accomplice Liability, In Generalo State v. Hoselton , 831 (lookout? you could say that)

Lookouts are aiders and abettors, principals in the second degree, which is punishable as principal in the first degree

An aider and abettor must “in some sort associate himself with the venture, that he participate in it as something he wishes to bring about, the he seeks by his action to make it succeed”; he must share the criminal intent of the principal in the first degree

Mens Reao Offenses Not Requiring Intent

Riley v. State , 838 (shooting at a bonfire) Echols v. State , the wife’s complicity could not be premised on

recklessness; the wife could be held accountable as an accomplice to first-degree assault only if the state proved that she acted intentionally with respect to the prohibited assault

The Echols rule turns out to be really problematic in cases like this: if one of the victims died and it was too hard to prove intent to kill, the state would charge both with manslaughter; the state can prove both acted recklessly, and this would be sufficient to establish the principal’s guilt, but they can’t prove either was the principal, so they’d have to prove both guilty under a complicity theory; under Echols, they’d have to prove both acted with intent to kill

MPC fixes this with 2.06(4); the standard interpretation of the phrase “intent to promote or facilitate the commission of the offense” is that it requires proof of the accomplice’s intent to promote or facilitate another person’s conduct that constitutes the actus reus of the offense, thus Riley could properly be convicted of first-degree assault either upon proof that he personally shot a firearm into the crowd or upon proof that, acting with intent to promote or facilitate Portalla’s act of shooting into the crowd, solicited, encouraged, or assisted Portalla in doing

Essentially says you either killed them yourself or you aided/abetted the other killer, but they couldn’t prove purpose

Beale thinks this decision is WRONGo Wrong in implication that it doesn’t make any difference

that lege only chose 2.06(3) and not (4)o Wrong that they say this is the majority ruleo Echols required p or k; you have a lot of exceptions or

particular rules

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o Natural-and-Probable Consequences Doctrine Test

Accomplice to primary offense (intent and conduct) Secondary offense committed by another accomplice is a natural

and probable consequence of the primary offense Negligence

State v. Linscott , 844 (robbing a drug dealer) Liability for a primary crime is established by proof the actor

intended to promote or facilitate that crime Liability for any secondary crime may have been committed by the

principal is established by showingo The actor intended to promote the primary crimeo That the commission of the secondary crime was a

foreseeable consequence of the actor’s participation in the primary crime

NOTE: MPC 2.06 looks at the independent, personal mens rea of the secondary actor

o Secondary Actor Mens Rea Common law is split, either purpose or knowledge MPC 2.06 requires purpose

Actus Reuso State v. V.T. , 849 (stolen camcorder)

Passive behavior, such as mere presence – even continued presence – absent evidence that the defendant affirmatively did something to instigate, incite, embolden, or help others in committing a crime is not enough to qualify as “encouragement”

o Wilcox v. Jeffrey , 851 (illegal sax player) Wilcox had not arranged for Hawkins’ visit, but he knew he was coming

and he was there to report on his arrival for his magazine; Wilcox attended Hawkins’ concert; paid for his own ticket and did not protest Hawkins’ performance

Wilcox wasn’t accidentally present Paid for the ticket Went to the concert to report on it He was present, taking part or encouraging the illegal act

o State v. Helmenstein , 853 (stealin’ bananas) A conviction may not be had upon the testimony of an accomplice unless

his testimony is corroborated by such other evidence as tends to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof

o People v. Genoa , 857 (undercover cop drug deal) Required elements to show aiding and abetting:

The underlying crime was committed by either the defendant or some other person

Defendant performed acts or gave encouragement which aided and

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assisted the commission of the crime Defendant intended the commission of the crime or had knowledge

that the principal intended its commission at the time of giving aid or encouragement

While the conviction of the principal is not necessary to a conviction of an accessory, the prosecution must prove that the underlying crime was committed by someone, and that the defendant either committed or aided and abetted the commission of that crime

Relationship of the Liability of the Accomplice to the Principalo If the Principal is Acquitted, Secondary is Acquitted

United States v. Lopez , 864 (helicopter prison escape) If jury finds Lopez not guilty of escape by reason of her necessity

defense, her criminal act will be justified If her act was justified, no criminal offense will have been

committed by a principal and McIntosh is therefore entitled to his requested jury instruction

o If the Principal is Convicted, Secondary Can Be Convicted People v. McCoy , 866 (drive-by)

Once it is proved that the principal has caused an actus reus, the liability of each of the secondary parties should be assessed according to his own mens rea

When a person, with the mental state necessary for an aider and abettor, helps or induces another to kill, that person’s guilt is determined by the combined acts of all the participants as well as that person’s own mens rea; if that person’s mens rea is more culpable than another’s, that person’s guilt may be greater even if the other might be deemed the actual perpetrator

An aider and abettor may be guilty of a greater homicide-related offense than the actual perpetrator committed

o MPC 2.06(7) commentary says the defendant must have been guilty, not necessarily convicted; this means if the principal is dead or gets away or has some kind of deal, the secondary can still be convicted

Limits to Accomplice Liabilityo In re Meagan R. , 869 (sex bandits)

Queen v. Tyrrell /Gebardi v. United States, not criminal for a minor female to aid and abet a male in having unlawful sexual intercourse with her

The juvenile court cannot rely on aiding and abetting her own statutory rape to serve as the predicate felony in a true finding she committed burglary (burglary requires committing a crime therein); no punishable intent

o State v. Formella , 870 (stolen exams lookout) Criminally liable if accomplice; accomplice if, with purpose of promoting

or facilitating commission of an offense, aids/agrees/attempts to aid planning or committing the offense

Liability ends if he terminates complicity prior to commission of offense

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and wholly deprives his complicity of effectiveness OR gives timely warning to law enforcement authorities/otherwise makes proper effort to prevent commission

o Doctrine of Innocent Agency (MPC 2.06(2)(a)) Using a child or mentally deficient person to complete the actus reus of

the object offense, but they’re incapable of the mens rea Essentially an alternative to accomplice liability Under derivative liability, innocent agent precludes conviction of

secondary actor with high level of mens reao Inevitable Incidence (2.06(6)(b), 5.04(2))

An accomplice is not guilty of an offense if her conduct is an inevitable incident to the commission of the offense, such as a customer in prostitution (prostitution needs both a seller and a buyer)

Essentially the Wharton Rule

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