CRIM LAW MINI OUTLINE

1. PART ONE: THEORIES OF PUNISHMENT a. Retributivist

i. Theory:1. The idea that people should get what they deserve 2. When people willing commit moral wrong and then they should be punished 3. People have free will and they make a conscious decision to do the right thing or

the wrong thing 4. The Retributivist will always look at the past harm and try to create a moral

equilibrium through punishment b. Unitarianism

i. Theory1. All forms of pain are bad – punishment and crime are both pain and therefore they

are bad 2. Unitarian only wants to punish if in doing so it will reduce future crime of a

greater degree than the pain that’s been inflicted on this particular defendant3. Forms

a. General Deterrence – the idea of trying to deter the general public at large from commit this particular crime

b. Specific Deterrence – incapacitation of the particular defendant c. Intimidation – d. Rehabilitation – reforming the particular defendant

c. First Principle of Criminal Law The Principle of Legality i. We don’t punish simply for bad act or immoral act, we only punish if the act is defined in

advance as a crime 1. Consequence – our laws have to put people on notice so a reasonable law abiding

person will know in advance what society has prohibited d. Burden of Proof in Criminal Law

i. Every prosecutor or the gov’t is supposed to prove every element of a crime Beyond a Reasonable Doubt

ii. The only time when the burden may be shifted is when there is an affirmative defense 2. PART TWO: THE ELEMENTS OF CRIME

a. There are FIVE elements of a crime i. Actus Reus

1. There must be conduct that include a voluntary act or omission when there is a duty there

2. Common law – the voluntary act required is a willed muscular movement a. Not every aspect of the D’s conduct must be voluntary but some act must

be voluntary 3. Common law – Generally you are not responsible for a failure to act – you are not

legally responsible for omissions a. Five exceptions at common law:

i. Statutorily created duty to act – example – failing the pay taxes ii. Status relationships – example – parent/child, husband/wife –

created an affirmative duty to render aid iii. Contacting with someone else – example – foster care iv. When a person creates a risk of harm and fails to diminish a risk –

example – you hit someone with your car you have an obligation to seek medical attention for that person

v. When the D acts when there is no duty to act if it makes matters worse for the D than doing nothing then there is a duty to act – example – lifeguard who does not want to keep resituating a drowning person

b. There must be a social harm i. Look at the actual definition of the crime and look at the act that we do not want to

happen – this is the external act that we do not want to have happen 1. Example - burglary is the breaking and entering into the dwelling house of

another at night 2. Example - Murder – the death of a human being by another human being

ii. When you combine the social harm with the voluntary act or omission we have the actus reus of the crime

c. Mens Rea i. The culpable mental state of the actor where the actor is committing the actus reus

1. Common law almost always requires a mens rea ii. Common law has dozens of mens rea but the MPC tried to simplify it

iii. MPC Section 2.02 has four Men Rea terms1. Purposely (at common law either purpose or knowing)

a. Conscious objective 2. Knowingly

a. Consciously aware that the result is practically certain (at common law either purpose or knowing)

3. Recklessly a. The actor consciously takes a substantial and justifiable risk of causing

the particular harm that occurred4. Negligence or Criminal Negligence

a. The actor SHOULD HAVE BEEN AWARE of the substantial and justifiable risk but was not aware

i. The gov’t does not have the burden of proving that the D was aware of the substantial and justifiable risk if the mens reas required is criminal negligence

iv. Specific Intent 1. Three Types at common law

a. A crime that by definition requires an intention to commit an act beyond the actus reus

i. Example – burglary b. A crime that by definition requires proof of a special motive

i. Example – larceny c. A crime that requires by definition knowledge of some special

circumstance i. Example – receipt of stolen property

v. Specific Intent1. If there are none of the above types of specific intents at common law - it is a

general intent crime with the men reas of moral culpability a. Courts at common law, are going to infer a general mens rea term unless

there is a clear intention of the legislature to not have a men rea term such as statutory rape; OR

b. If it is a public welfare offense i. Characterized as mal prohbitaum conduct usually carries minor

punishments and usually not stigmatizing 1. Example – speeding offenses, wrongly labeling a drug

vi. Mistakes of Fact & Specific Intent/General Intent/Strict Liability

1. At common law when an mistake of mistake of fact is raised a. First, determine if the crime is specific intent, general intent, or strict

liability crime i. Strict liability: A mistake of fact is not a defense for a strict

liability crime 1. Example: L Faulty speed-o-meter while speeding

ii. General Intent: a reasonable mistake of fact will negate the general intent BUT an unreasonable mistake of fact WILL NOT

1. Example: rape regarding an unreasonable mistake of fact about consent

iii. Specific Intent: a mistake of fact will be a defense if the negates the specific intent element of the crime – reasonable or unreasonable

1. Example: Alice and the watch hypo in regard to larceny (Alice believes the watch has been abandoned)

2. MPC Rules – 2.04 Sub 1 a. With specific and general intent crimes you simply ask if the mistake of

fact negates the mens rea found in the definition of the crime, if it does the person is not guilty

vii. Mistakes of Law & Specific Intent/General Intent/Strict Liability1. At common law (much stricter), generally a mistake of law is not a defense even

if the mistake of law is a reasonable mistake a. Exceptions at common law:

i. A person will be excused if the actor reasonably relies on an official erroneous interpretation of the law provided by someone with respondibibltt for enforcing the law in question

ii. Rarely, a statute will include a an element knowledge of some other law the Ds mistake with regard to the other law will negate the intent of the crime

1. Example – Cheek – the prosecutor hadn’t proven an essential element of the defense if knowledge of the other law is not proven

d. Actual Causation i. Remember actual causation binds the voluntary act and the social harm

ii. It is the connection between the voluntary act of the D and the social harm we want to prohibit

iii. Actual Cause is sometimes called actual “but-for” causation iv. Question: Besides what happened in the real world, but-for the D’s voluntary act or

omission would the social harm have occurred when it did? v. Speeding Up Death: Speeding up the death of another is included

e. Proximate Causation i. Proximate Causation a policy doctrine focused on the just outcome

1. Common Law: There were very few bright line rules on determining causation; but there were various tests for determining who was responsible

a. The Intended Consciousness Doctrine : look backward and stop at the first person who intended the social harm that occurred

b. The Apparent Safety Doctrine: determine if the D with an apparent safety after the D’s conduct

i. If the person was an apparent safety the actor was not the proximate cause of the harm

c. Voluntary Free Will Human Intervening Events: courts sometimes would view intervening events to shift responsibility away from the D – as if

there was some kind of break between the voluntary act and the social harm that would justify not holding the D responsible

i. Responsive Intervening Causes: is an event existing in response to the D’s conduct

ii. Coincidental Intervening Causes: an even that already existed but the D put the Vic in the wrong place at the wrong time

2. Neither the common law nor the MPC provides a clear rule but the issues are – whether the actors conduct was too remote or accidental to bore criminal responsibility

ii. You take the voluntary act or omission + the social harm +men rea + actual causation + proximate causation = the five elements of a crime

3. PART THREE: DEFENSES TO CRIME a. Justifications

i. Self-defense (usually in regard to murder or when someone is using deadly force) 1. Test: if at the time of using self-defense, whether the actor reasonably believed

that deadly force is nec to combat and unlawful, imminent, deadly attack at the hands of another person

2. Reasonable belief the person asserting self defense does not need to be correct a. There must be a reasonable belief that the attack is imminent b. There must be a reasonable belief that the actor is combating an unlawful

force c. There must be a reasonable belief that the use of deadly force is nec to

save the actor’s life3. Proportional Force: The use of force—objectively—must be proportional 4. Aggressor Exception: At the moment of the action the vic cannot be at aggressor

a. You cannot claim self D if you are the aggressorb. The vic had to disengage, explain your desire for peace making and then

you will no longer be in the aggressor status c. At common law and in the MPC, the aggressor cannot claim self-defense

5. Retreat: No jurisdiction requires a person to flee from their home but some jurisdiction will say that outside of the home if it is possible, you must retreat to a known place of safety rather than responding to force from aggressor

6. MPC: very similar to common law self-defense but the big difference is that the common law allows for force but focuses on whether there is a need to use force NOW

a. In other words—the common law focuses on how soon the unlawful attack will occur BUT the MPC focuses on the situation and whether it is nec for the respondent to respond in a particular time

i. Hypo: if someone threatens to kill me and they go into my room to get a gun – Common Law –I won’t be able to assert self-defense until the person came back with a gun – MPC – thought the common law rule was too strict so per the MPC in this hypo, the time to respond is when the person turns his back on me and goes into the room

ii. The MPC wanted to broaden the use of the self-help remedies for the D

ii. Defense of Others 1. A person may use force to the extent the person being aided would have had a

right to use self-defense ; HOWEVERa. How about if the person would not have had a right to self-defense?

i. Majority & MPC Rule: Most courts and the MPC would say so long as the third party was acting as a “good Samaritan” and had a reasonable mistake of fact they could still get the defense

ii. Minority Rule: Apply the “Alter Ego Rule” the right is not greater than the right the person wanted to protect

iii. Defense of Personal Property 1. The use of deadly force is not allowed when projecting personal property; you can

use non–deadly force BUT you CANNOT use deadly force (brightline rule) iv. Defense of Habitation

1. The original common law rule was board a. Deadly force could be used if you reasonably believed that it was nec to

prevent imminent, unlawful intrusion into the homeb. There must be a reasonably belief that the intruder intends to commit

forcible felony when inside the home v. Necessity (the choice of evil defense)

1. Common law rulea. a D must reasonably believe that there is threat of harm to himself or

someone else or property b. The actor has to reasonably believe that the harm is the only way to avoid

the other harm c. The person cannot be at fault for causing the necd. The harm caused must be less than the harm sought to be avoided

2. Consider: nec is never a defense to the crime of murder 3. Threats

a. Traditionally at common law nec involved common threats only while duress was caused by humans

i. Example: the tornado hypo 4. MPC Section 3.02

a. Allows for necessity as a defense for murder so long as the basic criteria could be the lesser of two evils defense

i. Only two states have adopted this and neither of them is VAb. Excuses

i. Duress 1. Common Law –

a. the crime is committed because another person threatened the actor or someone else with imminent death or some or serious bodily harm

b. The actor reasonably believed that giving into the threat was the only way to avoid the imminent harm

c. The actor was not at fault for being a coercive situation 2. At common law duress could never be a defense to the crime of murder 3. MPC Section 2.09

a. Boarder – duress is an affirmative defense if the actor was coerced to do the act by the use of threat or the threat to use unlawful force against the person or the person of another AND the “threat was one that a person of reasonable firmness” in the actor situation would have been unable to resist

b. Unlike the common law, the MPC applies to all crimes even murder c. Examples of coercive conditions: the prior use of force on the person it

does not even need to be a current threat (the threat does not need to be imminent) just one that a person of reasonable firmness in the actor’s situation would have nee unable to resist

ii. Intoxication

1. Voluntary intoxication a. IS NEVER AN EXCUSE b. But it can be used to exculpate a D in a situation but it is not an excuse

defense c. A D may be able to claim this if he or she did not form a requisite intent or

mens rea required for the crime d. Bu the law is very strict when it comes to voluntary intoxication if the D is

charged with a general intent crime voluntary intoxication cannot be raised to attack the mens rea

e. MPC Section 2.08 - If it is a specific intent crime, some jurisdiction will allow the D to argue the specific intent required is lacking as a result of the intoxication

i. For crimes of recklessness, if the D is unaware of the risk he or she is taking, the MPC said you are negligent but we will treat you for the purpose of a recklessness crime as if you were acting with recklessness

2. Involuntary intoxication a. This is a very rare one

i. Ingesting something involuntarily (being forced) ii. Ingest a narcotic

iii. Having unforeseen allergic reaction b. This could be a general intent crime or a specific intent crime

iii. Insanity 1. The McNaugthen Test (common law)

a. A d is legally insane if at the time of the act the actor was suffering from a mental disease or defect that caused the actor not to know the nature and quality of the actor’s conduct or caused the actor to not know what he or she was doing was wrong

2. Irresistible Impulse Test (common law)a. The person suffering from mental disease or defect that causes them to

lose the power to choose between right and wrong 3. The MPC Test (McNaugthen & Irresistible Impulse Modified)

a. As a result of mental disease or defect, did the person lack a substantial capacity to appreciate the criminality or wrongfulness of the action OR lack of substantial capacity to conform the conduct to a law (?)

4. [ANOTHER RARELY USE LAW]4. PART FOUR: SUBSTANTIVE CRIMES

a. Murder i. Criminal homicide is the unlawful killing of a human being by another human being

ii. Actus Reus: There are very few actus reus issues when it comes to homicide 1. the definition of a human being - at common law and in the MPC says that a fetus

is not human being until it is born alive 2. Death – at common law defined as the permanent cessation of breathing or

heartbeata. TODAY, all jurisdictions include a cessation of brain function in their

definition of death 3. Year and a Day Rule – if the victim did not die the first 365 days, no homicide

has occurred. T is extend or abolished in every state iii. Mens Rea: common law murder is the killing of a human being by another human being

with malice aforethought1. Malice Aforethought constitutes four human endangering states of mind

a. An intent to kill a human being

b. An intent to cause grievous bodily injury and the victim died c. Acting with an abandoned, malignant, or depraved heart (sometimes

called extreme recklessness) d. Felony Murder Rule – the killing during the commission or during an

attempted commission any felony whether intentional or not i. The rule is very controversial. Some jurisdictions have said that

felony murder only applies to some feloniesii. Some jurisdiction say that the killing must occur during the

“commission of an inherently dangerous felony “1. To make this determination some court looks at how the

crime was committed in that specific case. Some courts look at the how the crime is defined in the abstract to determine if there is a high probability of loss of life

iii. The merger doctrine – a felony that is not independent of the homicide merges into the homicide and cannot be the basis of a felony-murder prosecution

1. Generally this involves a felony that consists of assaultive conduct like…assault with the intent to kill is not independent of murder (it cannot be the predicate felony)

2. Wrinkle with the crime of robbery – includes assault of conduct but also has an independent crime of purpose which is taking someone’s property (it would suffice as the predicate for a felony murder rule)

2. Many states instead of using the common law definition will divide the murder into degrees per statute - At common law there were no degrees of murder!

a. First Degree Murder - include murder that are willful, deliberate and premeditated killing

i. Willful – means intentional ii. Premeditate – to think about before hand

iii. Delicate – to weigh the pros and the cons 1. Traditional courts will say that premeditation and

deliberation require a thought process undisturbed by __ or emotion – it just needs to be a well –thought out cold blooded killing

2. But many states have concluded that premeditation can occur a split second before the killing occurs

b. Second Degree Murder 3. MPC Definition of Murder - relative to common law murder or first degree

second degree murder; we see this in MPC section 210.2 - there is no concept of malice aforethought, there is second degree / first degree murder:

a. A person guilty of murder if the killing is done purposely knowingly or recklessly in a manner that manifested extreme indifference

b. THE MPC HAS NO PER SE FELONY MURDER RULE b. Manslaughter

i. Voluntary Manslaughter1. At common law was sometimes called a “heat of passion killing” 2. Three Factors had to exist:

a. The actor had to be adequately provoked b. The killing had to occur during a heat of passion c. The killing has to occur before the D has a reasonable opportunity to

_____(?)

3. Prime Example: a spouse who comes home and finds the other spouse engaging the in act of adultery and someone ends up dying

4. Words Alone: words alone can never serve as adequate provocation for killing someone - no matter how cruel

5. What a jury looks for: the provocation needs to be such that a person of ordinary temperament would act out of passion rather than reason

6. MPC Section 210.3 and some other jurisdictions: a. They do not use the term voluntary manslaughter b. It is just MANSLAUGHTERc. At common law there is involuntary and voluntary but the MPC and some

jurisdictions just call it manslaughter d. There are two types of manslaughter in the model penal code

i. Murder Manslaughter: If the actor suffered from an extreme mental or emotional disturbance at the time of the homicide for which there is a reasonable explanation or excuse [this is a reasonable explanation or excuse for an extreme mental, emotional disturbance]that can knock down a murder to manslaughter; OR

1. If it was a reckless killing ii. Involuntary Manslaughter (this is confusing)

1. Criminally Negligent Killing a. At common law this drew a very fine line between depraved heart

murders, extreme recklessness, and involuntary manslaughter b. Difference/Rule: whether there was an awareness or unawareness of a

substantial and unjustifiable risk that he actor was taking i. Example Case: child with sore tooth and parent did not realize that

the child needed medical attention (this is a negligence case and not a recklessness case)

c. The determination will come down to a jury determination as to whether someone acted with negligence or with recklessness

d. MPC 210.3: has two versions of manslaughteri. Extreme mental or emotional disturbance

ii. Reckless killing 1. When the MPC talks about reckless here, they are using the

mens rea term that’s defined in Section 2.02 2. Recklessness: extreme recklessness manifesting an

indifference to the value of human life3. So for the MPC manslaughter is 2.02 recklessness

e. So how do you distinguish? i. If you are ever given a question or a situation that a killing occurs

that appears to be reckless, you should discuss bothii. Discuss how murder requires extreme recklessness and

manslaughter requires ordinary recklessness that is defined in 2.02 f. MPC Section 210.4 - criminally negligent killing

i. This section adds another types of killing, a criminally negligent killing

g. Summaryi. In voluntary murder at common law is a lesser offense called

negligent homicide ii. So in the MPC there is Murder Manslaughter Criminally

Negligent Killing (see 210.2, 210.3, 210.4) iii. At common law, there was only Murder Voluntary

Manslaughter (heat of passion killing) Involuntary

Manslaughter (criminally negligent killing or the misdemeanor manslaughter rule – unlawful act killing)

c. Rapei. Rape is a general intent crime

ii. Definition at Common Law:1. Sexual intercourse by a male with a female NOT HIS WIFE without her consent

iii. Definition by Blackstone: 1. Carnal knowledge with a woman forcibly and against her will today this is

what is called Forcible Rape iv. Forcible Rape:

1. At common law, forcible rape, involves nonconsensual intercourse with a male against a female NOT HIS WIFE with the use of force

2. The degree of force, at early common law, had to be such that it cause death or serious bodily injury

3. The less force was used, the common law required the victim to resist – if deadly forced was used the victim did not need to resist

4. Early common law cases talked about a women needing to resist to the UTMOST last the common law said that the victim only needed to reasonably resist

5. Force: the force used needed to be of the amount, that overcome the resistance or it could not be forcible rape

v. Actus Reus and Mistake of Fact :1. The only time this is going to arise is if there was a mistake of fact with regard to

consent and as we know, rape is a general intent crime so a reasonable mistake of fact with regard to consent is a defense; BUT

2. An unreasonable mistake of –even though it is genuine—is not a defense to rape d. Larceny

i. Common Law Definition:1. Larceny was the trespassory taking and carrying away of the person property of

another with the intent to steal a. Trespass wrongful or nonconsensualb. Taking the carrying away c. Personal property d. Intent is to steal mens rea

ii. Mens reas 1. The intent to steal or the intent to permanently deprive

iii. Possessory Rights: 1. Common law larceny focused on possessory rights being taken and not ownership

rights 2. Larceny only dealt with possessory rights and not title 3. Example

a. If you were the owner of a car, and you leased it to someone and you took it back prematurely, you have taken the personal property right of another, someone had a superior interest in that car at the time you took it – THIS CAN BE A BASIS FOR LARCENY

iv. Custody vs. Possession: 1. Jeweler Example:

a. Running away out of the store with the jewelry meant that you took possession of the item trespassorialy. While you were in the shop, you had custody of the jewelry that was handed to you but when you ran outside it converted to possession

2. Employer Employee Legal Fiction

a. Giving property to the employee who is working on the job means that you are giving the employee custody of the custody but if the employee left the worksite with the tool then the property converted into possession

v. Fraud Issue 1. If the taker intended to take the property from the outset it is a trespassory taking,

even if the owner gave consent because the consent was procured fraudulently but this only applies if the person intended in the very beginning not to return the property

a. Exception: if the person forms the mal intent at a later time this is not a trespassory taking at common law

vi. Considerations with “Carrying Away”1. Moving away property an inch is enough to so long as it is a carrying away

movement vii. Personal Property

1. Common law trespass as opposed to the common law larceny as opposed to many statutory crimes involving theft only dealt with personal property

a. Not real property b. Not intellectual property c. Not a failure to pay for certain service d. Not sneaking into a movie theater w/o paying

2. It only dealt with the acquisition of personal property viii. The Continuing Trespass legal fiction

1. You took a vehicle w/o permission but at the time you took it you had an intent to return it the next day / you took it w/o permission every second the wrong doer has a vehicle was considered a new trespassory taking

2. So if you change your mind and you decide that you no longer wanted to temporarily possess the property you are still guilty because it was a continuing trespass

5. PART FIVE: INCHOATE CRIMES (Incomplete crimes or the unsuccessful crimes)a. Criminal Attempt

i. Definition: A person has to have the specific intent to successfully complete the crime in question even if the complete crimes does not

1. Example: attempted murder ii. Common Law Actus Reus:

1. BIG ISSUE: how far must the conduct go in order for it be an attempt a. England: the last time prior to the completion of the offense b. Common Law: there were various tests most of them focused on how far

was from completion of the crime 2. Physical Proximity Test

a. The actor needed to how the “apparent power” of completing the crime immediately

3. Dangerous Proximity Test (factors)a. How close the actor was from completing the crimes physically,

temporally and how serious the offense was 4. Equivocality Test / Unequivocality Test

a. The conduct itself had to unambiguously demonstrate the actor’s intent b. You look at the conduct and you unequivocally know what the actor is

trying to do. 5. Palpable(?) Assistance Test

a. The point at which an ordinary person would not turn his or her back on the completion of the offense at the point of an attempt

iii. MPC Actus Reus

1. The MPC abandoned the Common Law Test 2. MPC 5.01 – Test of Attempt

a. It does not look at how close the actor is at the completion of the crime, rather it looks at how many steps the actor has taken from when he or she formed the intent to complete the crime

b. MPC 5.01 – the actor has the requisite mens rea for completing the offense and takes a “substantial step” in the direction of committing a crime

i. Intent ii. Substantial Step to corroborate the intent

iv. Defenses to Attempt 1. All the ordinary defenses apply to attempt crimes2. Impossibility

a. Factual Impossibility: not a defense at common law i. The actor’s object is correct but some factual occurrence that the

actor is unaware of prevents the actor from completing the crime 1. Example: you try to shoot someone and you realize that the

gun is unloaded b. Legal Impossibility: was a defense at common law

i. The actor’s conduct even if fully carried out would not be a crime c. MPC:

i. The MPC and many jurisdictions have abolished legal impossibility as a defense

ii. Rationale: often time it is difficult to distinguish between factual impossibility and legal impossibility

1. Example: firing a gun into body already dead – well you can say it is a factual mistake regarding whether the person is dead or alive OR you can say that the actor made a legal mistake of impossibility where what the person intended to do does not constitute murder

3. Abandonment a. This is not a common law defense but this is a MPC defense b. MPC (aka Renunciation of Criminal Purpose)

i. Section 5.01 Sub. 4ii. If I cross the line of attempt, in MPC jurisdictions, will allow for

the defense of abandonment with the voluntary and whole abandonment and renunciation of the offense

1. Example: prison break-out cases b. Solicitation

i. Common Law Definition: 1. If I request or encourage you to commit a crime and I am sincere about it then

solicitation has occurred at common law 2. It does not matter if the other party adheres to the request3. Merger Rule:

a. Does not generally apply c. Conspiracy

i. Common Law Definition: 1. Conspiracy is an agreement between two or more people to commit an unlawful

act 2. Specific Intent:

a. This required the specific intent on the part of both persons to commit the crime

3. Meeting of the Minds:

a. The moment there was a meeting of the minds, at common law the conspiracy had occurred

4. Plurality Requirement a. There had to be two or more people with the requisite mens rea

i. Example: if A and B agree to rob a bank but A was really an undercover cop, then A could not be convicted of conspiracy at common law

ii. MPC Considerations: 1. Overt Act Requirement:

a. The MPC, in many states, require some slight overt act in furtherance of the conspiracy BUT a common law the Agreement Itself sufficed

2. Abolished the Plurality Requirement 3. Plurality Requirement

i. Example: if A and B agree to rob a bank but A was really an undercover cop, then A could be convicted of conspiracy

iii. Determining the Numbers of Conspiracies 1. You always need to look at the fact pattern 2. Chain Model

a. If the actor are dependent upon one another then it’s going to be a chain conspiracy, one big conspiracy

i. Example: a narcotic organization has the producer distributor Sellers

3. Hub and Spoke Modela. there is one person in the nucleus entering into multiple conspiracies and

often times the people at the spoke end are not conspiring with one another but are rather conspiring with the one person in the nucleus

4. Wharton’s Rulea. There could be no conspiracy if the underlying crime require two willing

peoplei. Example: adultery, sale of contraband

1. If A and B conspire to commit adultery together they cannot be convicted of conspiring to commit adultery they can be convicted of adultery but not conspiracy, the conspiracy merges into the underlying crime of adultery

b. Usually with conspiracy there is not merger between the conspiracy and the substantive crime – so someone can be convicted of both

5. No Mergera. Remember, this is the key distinction between conspiracy and solicitation /

attempt b. The Merger does not generally apply

6. The Doctrine of Complicity a. Definition:

i. Being accountable for the crimes of another b. Accomplice Liability

i. Being accountable for the crimes of another but there has to be an actus reus and there had to be a mens rea

ii. Actus Reus1. Soliciting someone to do a crime 2. Furnishing an instrument 3. You can a crime 4. Trivial Assistance

a. THIS HELP DOES NOT NEED TO BE MAJOR

b. It is not nec to show that the assistance was crucial i. it does not need to be “but-for” assistance

c. It’s enough if you make the crime easier through you assistanceiii. Mens Rea

1. You must assist with the intention that the crime will occur 2. Purpose vs. Knowledge

a. If I sell a gun knowing you will use it to commit a crime but I am indifferent can I be convicted under the theory of accomplice liability?

i. MPC & Majority Rule: the seller needs to have a purpose or the conscious object of having the crime occur

ii. Minority Rule: will only require the seller to have knowledge 3. Common Law Natural and Probable Consequences Doctrine

a. If there is an additional crime that you did not intend to assist in you are guilty if the crime was a foreseeable consequence of the initial crime that you purposely assisted in

i. Example: robbing a bank where you are the lookout and the guard gets pushed into the vault can become a separate kidnapping charge for you (it is a natural and probable consequences of what might occur if the primary robbed the bank)

b. MPCi. Rejects the Natural and Probable Consequences Doctrine

4. Intended Result Crimes: Can a person be an accomplice to a crime which has the mens rea of recklessness or negligence?

a. Yes, the person can be an accomplice in this caseb. The only requires that the accomplice has the level of mens rea as required

by the principle in the underlying offense i. Example: taxi cab driver to the airport hypo

c. Pinketon Liability i. This is a conspiracy doctrine at the federal level and many jurisdictions

ii. MPC does not have Pinketon Liability iii. Pinkerton Case

1. One bother conspired with the other to commit tax offense one brother goes ti prison before any acts are committed and nonetheless the brother was held responsible for the crimes committed by the co-conspirator

iv. The Doctrine:1. Under this doctrine, any member of a conspiracy can be held responsible for the

crimes of another conspirator so long as it was the object of the conspiracy or a foreseeable consequences of the conspiracy