Criminal Law Outline-1

8/2/2019 Criminal Law Outline-1

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CRIMINAL LAW OUTLINE

I. Introduction to Criminal Lawa. Criminal law is a blend of common law and penal codesb. Criminal system is punitive, completely meant to punish the perpetrator in addition

to getting justice for the wronged or injured personi. A social condemnation that you did something wrong

ii. Fundamental crimes that injure people (murder or assault) are at the core ofcriminal law

iii. Criminal law is a social contract: we give up the freedom to do whatever wewant in return for laws that are enforced and provide a safer environment

c. Criminal law is focused on the communityi. Cases have individual victims, but the goal of criminal law isnt necessarily to

make that person whole

ii. We try to remedy a social harm to the communityiii. This can lead to a disconnect b/t criminal law and the individual victims of

crime

d. Three different sources of criminal law:i. The statute/statutory precedent

1. Only conduct that is prohibited by statute can be prosecuted as a crime2. Statute has to tell you what the conduct is thats prohibited and what

level of intent the actor has to have violated the statute (ACT +

MENTAL STATE = CRIME)

3. States will sometimes look to other jurisdictions statutes if they havean issue they have never had to deal with before

4. The Model Penal Codea. The model statute, uniform throughoutb. No state has adopted the MPC in its entirety, but some states

have adopted sections of it (such as the homicide section)

c. Since the MPC came out, state codes are significantly lessmessy than they were before this cleaner version came out

(state legislatures used its example and cleaned up their own

penal codes)

ii. Case law precedent1. Courts must follow the decisions of courts higher than them in their

jurisdictions

2. State courts dont have to defer to federal courts in interpreting theirown lawssometimes leading to a clash in interpretation


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iii. Constitutions (state and U.S.)1. Due Process, Equal Protection, Right to Jury Trialall deal w/

criminal proceedings

2. A court shouldnt reach out to find a constitutional issue where onehasnt been raised and where the court can decide based on anothermethod (general rule)

e. Proving a case beyond a reasonable doubt: prosecution must prove that all theelements of the statute beyond a reasonable doubt

i. In many cases, the burden is on the defense to prove one of the issues that itraises (such as the insanity defense)

f. Most criminal cases dont go through various levels of appeals; in fact, most donteven go to trial

II. Principles of Punishmenta. Different approaches to the proper level of punishment for very similar crimes

across the country and across other countries

b. Theoretical bases for punishment: criminal codes often begin w/ underlyingjustifications and purposes of punishment that the code is governed by

c. Utilitarian approachi. Punishment is justified by its utility to society as a whole

ii. Focus on future behavior, look at offender as an opportunity to send amessage to society as a whole about what behavior is acceptable

iii. Finding the exact amount of punishment thats important to affect thebehavior across society

iv. If we truly want to make a change in behavior, we might have to imposepunishments that seem to be more than that particular offender deserves

v. Mostly talking about deterrence (either general or specific/individual)1. Make assumptions that people are rational thinkers and that any

rational thinker would conclude that engaging in crime isnt the right

or rational thing to do

2. Assumptions about ppl that are rational thinkers dont take intoaccount crimes of passion that ppl are oriented toward the future

3. One of the biggest problems w/ deterrence in the USyour chancesof getting caught for any individual crime are pretty low

vi. Rehabilitation


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1. Views crime as an illness we can figure out how to curevery popularin the 1960s in the USwe want to change the character of the

offender so they wont engage in the crime again

2. Opponents looked at this as being soft on crime3.

The more we studied what happened to ppl who went throughrehabilitative programs, the less we say that they had any effect

(programs werent funded to the extent that they needed to be in

order to be successful)

4. Keeping someone incarcerated for as long as it takes to rehabilitatethemindeterminate sentencing, doesnt seem proportionate to

what they deserved

vii. Incapacitation1. All we want to do is remove the offender from society2. We assume there is no one to take that persons place in crime and

that they wont resume their life of crime when they get out

d. Retributive approachi. Punish the offender as much as he or she deserves; punishment fits the

seriousness of the crime

ii. Dont focus on society as a whole or on the future iii. Look at the offender and what that person has done in the pastiv. Used in 2 different ways:

1. Purely using retributive theories to tell us how much punishment isdue

2. Or used to put a ceiling (or sometimes a floor) on a punishment of acrime

e. Were concerned w/ how much an offender deserves, as well as the type of messagewe want to send

III. Principle of Legalitya. A person may not be punished unless what she did was defined as criminal and it

was defined as such before she committed the crime

b. The legislature must define the crimec. All laws have to be drafted with a certain amount of vagueness, but there is a limit

on this

d. Concern about giving too much discretion to ppl in the criminal justice system,about essentially allowing them to decide what is a crime on the spot through an

overly vague statute


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i. Police officers and judges and prosecutors have a certain amount of latitudein using their discretionnot so much that they have unlimited discretion

and not so little that they are constrained and cant do their jobs

e. Also a concern about guidance to the individual person about what they can andcant do is another concern of legality

f. Civil liberties is thus also a concerng. Requirement of previously defined conduct

i. One of the most difficult categories of crimes w/ the legality principle arecommon law crimes

ii. What happens when you have something you think is a crime, but no statuteactually prohibits it? Can you punish someone for it? This is why statutes

were crafted broadly enough to hopefully capture these crimes

iii. Most states have abolished common law crimes to avoid just that sort ofproblem

iv. Courts have to use the statutes that they have; they cant arbitrarilyinterpret them based on modern meanings, because that raises due process

issues of notice

1. Keeler v. Superior Court: a viable fetus wasnt covered under the CAhomicide statute as written in 1850, so court couldnt convict D for

murder; that was later changed by the legislature (as often happens

after a court has to find a result that goes against whats socially

acceptable)

h. The values of statutory clarityi. A statute that is passed has to be specific enough that it gives the type of

warning needed

1. Cant be so vague that it depends heavily on the police, prosecutors,and judges for discretion

2. Cant be so vague that a reasonable person wouldnt understandwhat was prohibited

3. Interpretation of statutory language may narrow the statute, butbroad language in said statute could still be problematic

ii. The specificity of a statute is important so as not to leave its enforcemententirely up to the discretion of police officers on the street

1. City of Chicago v. Morales: gang ordinance defines prohibited activityso vaguely that practically any activity could violate the ordinance,

enforcement was left almost entirely up to the discretion of the


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police on the streets; court didnt allow D to be prosecuted under

such a vague ordinance, city later changed the ordinance

i. Statutory Interpretationj. The meaning of specific words in a statute can cause issues in prosecuting

defendantsk. Courts will sometimes go to great lengths in order to construe one single word or

phrase

l. Muscarello v. United States: court looking at whether the phrase carries a firearmis limited to the carrying of firearms on the person, determined that it wasnt

limited to that definition

IV. Actus Reusa. Crime = Act + Mental Stateb. Act requirementcalled the actus reusc. You need to do something or fail to do something you have a legal duty to do in

order to be able to be punished for a crime

d. Result crimes: focus on criminalizing the result of your actions or omissions, definesas the crime a bad result; doesnt tell you exactly what act of yours has to lead to

that bad result, any act you engage in that leads to this result (ex: murder)

e. Conduct crimes: focus on criminalizing your conduct (ex: driving while under theinfluence of alcohol

i. Its more than just defining an actthe law wants to prohibit harm whereyou have control over your conduct

f. Voluntary Actg. The act must be a voluntary one (see Martin)

i. D taken by police to public road, where he was then arrested for publicintoxication

ii. Elements of the statute: intoxicated, in a public place, where ppl are present,manifest your intoxication by boisterous conduct or profane language

iii. on its face, it looks like D violated the statuteiv. But, the court reads into the statute that you must voluntarily be in a public

place

v. Court concerned here about allowing the police to create a situation in whicha crime occurs, whether the D wanted it to happen or not

h. Courts are concerned about people faking claimed involuntary acts, in which theycommit a crime through a supposed involuntary bodily action; they need a good bit

of evidence on involuntary acts in order to excuse any criminal behavior

i. Omissions (Negative Acts)


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j. It must have been possible for the person to have committed the act if you want tohold them criminally liable for not doing it

k. Oft-cited case in this area: People v. Beardsley(married man invites woman to hisapartment, drinks w/ her all weekend, she takes a large dose of pills, he fails to get

her medical attention, she diesstate sup ct held man had no legal duty to help thiswoman since she was not his wife or very close relative)

i. Common law relationships in which you would have a legal duty:parent/child, husband/wife, assuming care of someone who cannot care for

themselves

ii. Other possible legally-enforceable relationships: create the harm, contract,or statute on point that names people who have a legal duty to respond

iii. Courts havent been willing to expand the categories in a modern world forrelationships like husband/wife or parent/childonce you open up those

categories to other relationships, where do you draw the line?

l. Just because a person is in danger and you cou ld do something to help them doesntmean you are legally bound to do so

m. MPC 2.01(3): act or omissioni. Statute places an obligation to act; or there is a duty to perform the omitted

act otherwise imposed by law

ii. Can account for the law to expand and adjust the categories in the commonlaw as society develops

iii. Something this doesnt do:1. Doesnt talk about someone w/ specific knowledge having an

obligation to act; no foreseeability duty

2. MPC drafters chose to leave these categories out b/c they believedthe common law categories were the most fair on balance

V. Mens Reaa. Crime = Actus Reus + Mens Rea

1. +Causation/Result2. +Attendant circumstances3. Other special factors that must exist in order for this crime to occur,

for a statute to have been violated

4. Ex: person who is drunk in public where one or more persons arepresent

5. Not thinks that a D controlsb. There must be a mental state that accompanies every element of the crime


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c. Two different versions of mens rea courts talk about:i. Older version/general sense of mens rea: some level of culpability,

wickednessbroad requirement of culpability

ii. Modern versions/MPCs approach: very specific requirements telling us whatthat mental state must be, elemental mens rea using precise definitions

d. If you fail to commit the act with the correct mens rea, its not a defense, you aresimply acquitted

e. Regina v. Cunningham: language of the statuteunlawfully and maliciously (mensrea)

i. Administer or cause to be administered (act)ii. Noxious thing (attendant circumstance)

iii. To person (attendant circumstance)iv. Endanger. . . (result)v. Court of criminal appeal in this case takes maliciously to mean intent or

recklessness, as opposed to traditional definition of wickedly

f. People v. Conley: statuteintentionally (purpose, conscious objective)/knowingly(aware of or practically certain of results)

i. Causeii. Great bodily harm or disability/disfigurement (result)

iii. To a person (not anyone specific in statute language)iv. Court says you can infer intent from Ds actions and words, and the fact that

he swung the bottle w/ enough force to inflict permanent damage

v. Statute draws a line between intent and recklessness, that intent is a higherlevel of culpability

g. Transferred intenti. A couple of different contexts

1. Some courts: intent to harm one victim transferred to another (thatyou did injure)

2. Transferred intent gets tricky when talking about 2 different types ofcrimes or 2 categories of crimes

ii. Specific v. general intent: have different meanings in different contexts1. Go back to culpability and elemental meanings of mens rea

a. Specific intent: we gave you specific level of intent to be heldcriminally liable

b. Any crime that requires less than knowledge is a generalintent crime


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2. Other way: general intentintend to do the act; specificintend todo the act and do something on top of that

h. Model Penal Code approachi. Purpose: conscious object (conduct/result); aware of/hope (ACs)this is what they

want or intend to doj. Knowledge: aware of (conduct/AC); practically certain (result)

i. Step down from purposeii. Difference b/t the two is how crucial the result is to Ds undertaking

1. Wanting something to happen (purpose) vs. knowing it is practicallycertain to be a result of achieving your real goal (and you dont care)

(knowledge)

k. Many statutes combine purpose and knowledge b/c the difference between thetwo doesnt make a big difference

i. --purpose and knowledge are subjective testsii. --a lot of the time were not really sure what was going on in the Ds head, so

we lump the two together

l. Recklessness: consciously regards substantial and unjustifiable riskgross deviationfrom law-abiding citizen

i. Need to show that the D was aware that this was a risk (subjective to acertain extent)

ii. More objective factors: the risk was substantial and unjustifiablem. Negligence: should have been aware of substantial and unjustifiable riskgross

deviation from reasonable person

i. Whether a reasonable person would have been aware of this significant riskii. Why use the reasonable person standard? Where recklessness has that

subjective test of consciously disregarding a risk, negligence is a purely

objective standard

iii. Criminal liability in negligence is somewhat controversialthere needs to bea gross deviation to make the jump from criminal to civil standard

n. MPC tells us that this is a hierarchy of mens rea from highest level (purpose) tolowest (negligence)

i. If you have proved one level, you have also proved all the levels below itii. Problem b/t negligence and the other three: negligence doesnt require an

awareness of the risk at the other three levels do

1. You cant be said to have been aware, and at the same time notaware when you should have beenits one or the other

o. MPC gives us rules for what to do, 2.02


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i. (1) apply mens rea to every element of crimeii. (2) defines the kinds of culpability (see below)

iii. (3) where the level of mens rea isnt prescribed in the statute (at all or for aparticular element), it can be established by proving purpose, knowledge, or

recklessnessiv. (4) apply mens rea to every element of crime, unless a contrary purpose

appears (where the mens rea appears in the statute)

p. Line between knowledge and recklessness depends very much on what the Dbelieved or knew what would happen

q. More and more, courts take a MPC-like approach, even where the jurisdiction hasntadopted the MPC

r. Strict Liability Offensess. Strict liability not favored by the criminal law, its an exception to the mens rea

requirement for crimes

t. Hold people strictly liable for newer types of crimes that specifically affect thepublic welfare, put responsibility on the people who control these instrumentalities

u. Strict liability crimes typically the ones punishable by fines; the one exception totraditional strict liability crimesstatutory rape

v. Staples v. United States: case is analysis for when its appropriate to impose strictliability

i. Firearm that can be converted to be capable of fully automaticii. Elements of the crime:

1. Receive/possess (act)not disputed2. Firearm (AC)arguing the status of this being the type of firearm

that fits the statute

3. Unregistered (resulton a theory of omission, that you fail toregister it)not disputed

4. No mental state requirementiii. Court not comfortable making this a strict liability statute

1. No one disputes that owning a gun is dangerous, but gun ownershipis legal and innocent conduct

2. In a lot of other strict liability cases, innocent conduct isnt cleariv. Court says that nothing here puts the generic gun owner on notice that what

they own is particularly dangerous

w. MPC 2.05: strict liability crime only if punished as a violation, which means only w/monetary penalty; you cant send someone to prison based on a strict liability crime

i. The only exception is for statutory rape


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VI. Mistake of facta. Specific intent crime (such as burglary statute)

i. If your mistake means you dont have that intent, then it is irrelevant to whether youre going to be convicted for that crime

b.

General intent crime (generally culpable or blameworthy for your actions)ii. Mistake as a defense: not really a defense, way of expressing that you didnt

have the mens rea required to commit that crime

c. MPC, 2.04ignorance or mistakeiii. A defense if:

1. The ignorance or mistake negates the necessary mens rea for amaterial element of the crime; or

2. The law provides that the state of mind established by suchignorance or mistake constitutes a defense

VII. Two doctrines as a way of looking at mistakes that come into play:a. Moral wrongmore traditional common law approach

i. Criminal law is reflection of societys views of what is morally wrong ii. Were you still doing something morally wrong, even if you made a mistake?

(from Ds perspective)

iii. If you were doing something morally wrong, still liableb. Legal wrong

i. If we took the facts as you claim them to be, were you still committinganother crime (other than theft crime, for example)?

ii. If we do have this lesser crime, then we still find you guiltyc. At common law, if legal or moral wrong doctrine applied, and you were guilty, you

were guilty of the most serious crime (youre not given any slack)

d. Modern approach says you can only be convicted of the other, lesser offensebecause thats the only crime you have mens rea forthus, focus is on legal wrong

doctrine

VIII. Mistake of Lawa. General rule: ignorance of the law is no excuse

i. See: legality, as long as law was enacted before your crime, and isreasonably available to you, then you will be held accountable

b. Mistake of law comes up most in mala prohibitum crimes, regulatory laws (MPC2.02(9))

c. We dont want to give anyone the benefit of the doubt if they just didnt bother tofind out what the law is (especially where its readily available)


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d. Unless the statute says you must be aware of it, we wont read into the languageany mens rea for ignorance of the law

e. If you have some official interpretation from the AG or a controlling case that can berelied on, then later is changed, we shouldnt be able to convict someone for that

mistake

IX. Causationa. No criminal liability without showing that the Ds conduct was a cause -in-fact of the

prohibited result

b. But for test:Ds conduct is a cause-in-fact of the prohibited result if the saidresult wouldnt have occurred but for the Ds conduct

c. Substantial factor test sometimes used in cases where multiple Ds inflictinjuries that by themselves could be enough to cause the result

i. Ds conduct is a cause-in-fact of a prohibited result if the subject conductwas a substantial factor in bringing about the said result

d. Courts struggle w/ whether the injury to the person would have happened at thatmoment in the same way; looking at whether the Ds actions were a substantial

factor in victims injuries/death

e. Courts construe events from Ds perspectiveX. Proximate Cause

a. The only thing that but for cause tells us is who might be responsible for this crime b. Proximate cause tells us who is the person legally responsible for the crimec. Often comes up when you have an issue of intervening causei. Act of God

ii. Act of an independent third party which aggravates or accelerates the harmcaused by the D, or which causes it to occur in an unexpected manner

iii. An act or omission of the victim that assists in bringing about the outcomed. Cases apply factors rather than bright line rules that help courts balance out and

determine the outcome

e. Six factors:i. De minimis contributionto the social harm factor; cant make a

causal argument b/c the contribution is so minimalii. Foreseeability of what this contribution wasresponsive to Ds

conduct? Coincidental?


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iii. Intended consequencesnot a superseding cause if, even w/ all thethings that happen in between, the death still occurs in the way you wanted

it (or a way closely linked to that)

iv. Apparent safety doctrinevictim in a place of apparent safety,crime has concluded; anything after that isnt considered linked

v. Human intervention by victimcrime over, victim makes voluntarychoice to do something that results in their harm

vi. OmissionsXI. Criminal Homicide

a. Murder requires malice aforethought, manslaughter does notb. Malice [aforethought] not limited to murder cases only; 4 mental states (mostly just

the first 3):

i. Intention to kill (mostly been taken out now)ii. Intention to inflict grievous bodily injury

iii. Extreme reckless disregard for value of human lifeiv. Intention to commit felony, during which death occurs

c. What crime youre guilty of all comes down to your mens rea in most homicidecases

d. States approaches to homicidev. Californias Homicide Statute

1. Divides murder into different degreesa. First degree murders punished more harshly, and usually the

only murders subject to the death penalty in a state with the

death penalty

2. Define killings committed in certain, specific ways3. Definition of felony-murders and which kinds constitute4. Two types of manslaughter: voluntary and involuntary

a. Voluntary: upon a sudden quarrel or heat of passionprovoked

b. Involuntary: without due caution and circumspectionlooks like recklessness

5. Also vehicular manslaughter definedshows what the legislaturevalues in terms of social harms

b. Pennsylvania now has three degrees of murder rather than twoi. PA was originally the model for splitting murder into two degrees


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c. NY uses the same basic model of first and second degree murder, but much moredetailed as to the difference between the two

i. Revised penal code when NY reinstated the death penalty, Sup Ct nowrequires much more specific findings by a jury even b/t first degree murder

crimes and those eligible for capital punishmentd. NC penal code

i. Specifically called out crimes related to drug distribution, as second degreemurder crimes

ii. Definitions ofmanslaughter come from case law, not defined by statuteiii. Traditional, common law approach to homicide crimesiv. Substantively not very different form CAs definitions of different levels

e. MPC approachv. Definitions of mental statesdefault back to MPC categories, rather than

common law malice categories

vi. Murder is a felony in the first degree, but not divided into different levels ofmurders

vii. Felony murder isnt a different kind of murder, folded into third category ofrecklessness w/ regard to the value of human life

viii. Manslaughter involves two different circumstances (like CA)ix. MPC defines negligent homicideleast serious in terms of punishment

Intentional Killings

What kinds of factors differentiate b/t killings that are willful, deliberate, and premeditated,and other types of killings?

o Plans; amount of time a person has been thinking about it; nature of wounds;relationship to victim/history; emotional state of the person

Voluntary manslaughter is intentional, but for some reason we think the Ds actions areexcusable

o Amount of time required to form intent to commit the crime can be very short, aslong as its enough for the accused to be fully conscious of what he inte nded

Both the common law and the MPC establish a standard of behavior of how we thinkpeople in society should act

o Differences: Nature of the provocation:

Common lawheat of passion, suddenness, anger (most of thetime)


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MPC Extreme mental or emotional disturbance language, notkeyed into just anger, no requirement of suddenness

Traits of the reasonable person: common law is reluctant to acknowledgethese subjective traits

A couple of different tests:

o Subjective testwas D provoked?o Objective testwhether a reasonable person (whoever that is, whether under

common law or MPC) would have reacted like that

Courts using the common law approach debate on how far to apply thecircumstances of the D to the reasonable person, how much to subjectivize

this objective standard; courts prefer to focus on objective characteristics

rather than potentially more subjective mental disabilities

o [Cooling time]did you cool down? Would a reasonable person have cooled down?

Not a part of the MPC, gets folded into subjective an objective tests there The differences b/t first and second degree murder is about mens rea and mental state

o 1st degree murder mental state requirement involves a finding of premeditation anddeliberation to commit the crime of which D is accused; if premeditation and

deliberation are missing from the findings, then the required mental state was not

present and D cant be convicted of 1st degree murder, but there may be enough for

2nd degree

o 2nd degree murder mens rea requirement is less strenuouso Distinction b/t 1st and 2nd degree is a legal one

Rule of Provocation

o There must have been adequate provocation; Reasonable man standard Words alone cant constitute adequate provocation, must also include an act

o The killing must have been in the heat of passion;o It must have been a sudden heat of passionthat is, the killing must have followed

the provocation before there had been a reasonable opportunity for the passion to

cool;

o There must have been a causal connection b/t the provocation, the passion, and thefatal actin most cases, this isnt an issue

Traditional 1st/2nd degree murder mitigated to voluntary/involuntary manslaughter(common law model)

o Was D provoked?o Would reasonable person have been provoked?if a case is going to fail, it will fail

on this question


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o Cooling timedid the D cool off? Would reasonable person have cooled off?onlyreally comes up if you have a time lag b/t what supposedly provoked the D and what

the D did, doesnt come up in many cases

o Phrasing youre looking for in manslaughter statuteupon a sudden quarrel orheat of passion

MPC model (more streamlined, talks about purpose, etc.)o Under influence of extreme mental or emotional disturbance for which there is

reasonable explanation or excuse (view from the person in the actors situation

under circumstances as actor believes them to be)

o extreme emotional disturbance could include great sadness as well as the rage oranger that is usually thought of under the common law model

o More difficult to determine who the reasonable person is, how you compare thereasonable person to the D, opens door to a lot more of the concerns than the

common law model Voluntary manslaughter was originally only for strict categories, and has gradually been

opened up

Unintentional Killings: unjustified risk-taking

The D has done something that resulted in someone elses death, but the D didnt intend tokill anyone, and may not have even been thinking that their actions could result in

anothers death

o Includes when D acts recklessly, negligently, and some situations that fall under thefelony-murder rule

MPC approach to mens reao Purposeo Knowledgeo (we have inserted here a category of extreme recklessness)murdero Recklessness(Involuntary) manslaughter (aware of the risk)o Negligencenegligent homicide (unaware of the risk, look at facts that could put

the reasonable person on notice)

Were talking about the line between knowledge and extreme recklessness

MPC has a defined line b/t recklessness and negligence and what crimes those indicate Involuntary is really a synonym for unintentionalperson still must commit that

voluntary act

Talking about implied malice rather than express malice depraved heart or abandoned and malignant heart


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o MPC language talks about recklessness manifesting extreme indifference to thevalue of human life, more than a garden-variety recklessness, extreme recklessness

o The risk were talking about isnt just a generic social risk, its a risk that someonewill die and the D just doesnt care

oExtreme recklessness is murder (2

nd

degree), as opposed to recklessness, which ismanslaughter

o What do we gain by adding extreme recklessness to the categories ofmurder? Deterrence, especially w/ regard to risk-taking behavior More severe punishment for someone whose crimes could be swept up by

lower categories, but for whose crimes society demands punishment

Idea that the people who take these risks are more culpable Two different tests

o Thomas: malice implied w/ Ds wanton disregard for human life and highprobability that Ds actions will result in death

base, antisocial motiveD is bad, evil, antisocial person high probability More descriptive, higher test in many ways Seems to invite the jury to convict a person based on the fact that theyre a

bad, antisocial person

o Phillips test: conscious disregard for life Looks a lot more like MPC approach, much more antiseptic, clean test knows that his conduct endangers lifeno language about high

probability, seems to be a lower standard

Unintentional Killings: unlawful conduct

The Felony-Murder Rule

We dont care about the Ds mens rea w/ regard to the killing Statutes law out certain crimes (enumerated felonies), that will qualify for the felony-

murder rule

o All felonies Predicate feloniescould count for felony-murder, broader felony

inherently dangerous to human lifesecond degree murder

Enumerated felonieslaid out in statute, 1st degree murder MPC folds felony-murder into extreme recklessness Manslaughter cant be used to bring a charge of felony-murder

o Merger doctrinecant have felony-murder if the underlying crime and the killingmerge


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Doctrine gets complicated when we have a group of felons, and only one is responsible forthe killing while the other sits in the getaway car, or is in another room, etc.

o Forces courts to try to define the theoretical basis on which the doctrine exists, andhow far they think it goes

oFactors courts might take into account to determine if the crime is over for aparticular D:

Period of time b/t the felony and the killing Causal relationship b/t the Ds actions in the crime and the actual killing

o An issue of agency: does it matter who kills? Does it matter who dies? The agency approach majority rule: the felony-murder doctrine doesnt

apply if the person who directly causes the death is a non-felon

o Proximate causation approach makes many of these cases look like felony-murder,even if courts dont want them to

oAssumption of the risk approach (also called protected party approach)

Where a felon is on the hook when an innocent party is killed But if another felon is killed, not on the hook Felony-murder applies if a protected person is killed (third party innocent

bystander, victim, police officer, etc.)

But this approach can leave a lot to luckif there is a lot of gunfire and afelon is killed, not responsible; but if a protected person is killed, he is

responsible

o Other possible approaches: Misdemeanor-manslaughter rule: has never really taken off; felony-murder

w/ lesser levels of crimes

Dont change what youre guilty of, but if someone died during the felony,then you increase your sentence a whole lotmany ppl end up serving the

same amount of time as they would under felony-murder

What limits do we place on felony-murder?o Some states incorporate a mens rea element in felony murdero Some states limit the predicate felonies by saying only the enumerated felonies

qualify

o Some states require a much tighter causal link; basically use a foreseeabilityanalysisstill leaves a large number of cases, but at least it cuts out the bizarre

cases at the end of the spectrum

o In states that recognize predicate felonies, the key criteria is that they mustinherently dangerous to human life (to divide them b/t the predicate felonies and all

others, and b/t predicate and enumerated felonies1st and 2nd degree division)


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2nd degree felony-murder areao Very often you wind up in the same place (conviction-wise)o Extreme recklessness/abandoned and malignant heart is 2nd degree murder; a lot of

2nd degree felony-murder cases have this type of mens rea

oSo you dont get the bump up to 2

nd

degree murder from something else w/ 2

nd

degree felony murder b/c you could get here w/ traditional mens rea

o Unlike 1st degree felony-murder which allows the crime to be bumped up where itwouldnt otherwise be able to

Inchoate Offenses

Doctrine of attemptby definition, just a crime that doesnt work Conspiracyguilty of a crime for simply planning w/ other ppl Inchoateincomplete, partial crime; on its way to happening, but not there yet

Attempts come in different varietieso Completed attemptperson goes so far as to point the gun and try to shoot the

person, but for whatever reason the harm doesnt happen

o Incomplete attemptactor stops himself before the crime is completed Objectivist approach to attempt

o Say: this is what the D did, so do we believe this conduct is enough to establishattempt?

o Not considering conduct that leads up to the crim, focus more on what happens atthe end of the process of preparation leading up to the crime

Subjective testo MPC takes this test, want to focus on whats in the Ds mind o Once he started making preparations before the crime, thats enough for a

conviction for subjectivists

o This approach starts earlier on in the crime How much do we punish attempt?

o For the full amount of the crimeMPC approach says youre punishing the personfor the guilty state of mind, and theyre just as guilty in the mind whether the crime

is completed or not

MPC 5.05(1)attempt, solicitation, and conspiracy are all punished as muchas having completed the target crime

o For less than the full punishmentpossible deterrence effect if a person can bepunished less for not going through w/ it? Or the fact that the harm hasnt actually

occurred, so theres no reason to punish someone as if it had?

o Most states punish attempt less than the completed crime


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NC, for example, puts attempt into different categories, and attempt crimesare punished one category down

Som e states punish for a percent of time States are concerned about deterrence, want to give ppl a reason to back

off, also the idea that a person isnt as bad if they dont complete the crime

Attempt

Mens rea for attempt

Traditional rule: must have the intent to commit the target or substantive crime in order tobe guilty of attempt

Remember that attempt is a specific intent crime In most jurisdictions, you can only accuse someone of an attempt for a crime that is itself

intentional

General rule (MPC and common law similar)

o Purpose for the result of conduct (for a result or a conduct crime)o Common law not sure to do w/ attendant circumstanceso MPC says you need purpose for conduct and for result, but whatever mens rea the

statute requires for any attendant circumstances

In some cases, the inclusion of all the alternative mental states is wrongo Attempt itself is specific intent to commit the crime of murder (in one case see

Gentry); you had the intent to kill

o So all the other mental states fall short of saying you wanted to kill the victim

Logically, you cant intend an unintentional crime MPC, Article 5, 5.01 (pg. 992 in casebook)

o Complete, but imperfect attempts: (1)(a and b) (a): conduct crime, and an attendant circumstance is missing (b): result crime; you do everything you can, but the result doesnt happen

Actus Reus for attempt

We wont convict someone for an attempted crime based on what theyre thinking alonew/o any steps toward the crime

Require conduct b/c otherwise were not sure what they meant to doo We dont want to jump in too soon such that something that is completely innocent,legal actiono But if we wait too long, we tell law enforcement that they cant intervene until the

crime is in progress

How far do you have to go toward achieving the crime before we can say you havecommitted an attempt? How far beyond mere preparation?


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Common law has come up w/ various tests:o Last step/last act (not as common today)we dont convict someone of an attempt

unless theyve done everything they need to do to commit the crime, but somehow

it fails

oPhysical proximitywere you close to committing the crime? Physical action thatmust be taken?

Dangerous proximityHolmes balancing test; the more serious the crime is,and the more likely it is that the Ds actions will cause it to occur, the more

likely it is that we will convict a D of an attempt earlier; courts entitled to

take into account the risk here, factors other than pure rules, take policy

concerns into account

o Indispensable elementif you dont have something you need to commit the crimeyet, then you cant be convicted of attempt

oBut-for interruption/probability of desistancewhether the D is committed totrying to actually commit this crime

But for the interruption, would you have gone on to successfully commit thiscrime?

Whats the probability that the D would have desisted/stopped for somereason on his own?

Not a useless test when there was an interruption; it just proves the pointo Abnormal stepdid the D take a step that a normal, law-abiding citizen wouldnt

have taken? Very subjective, but occasionally used

o Unequivocalityis the Ds conduct unequivocal? Was the D sure to commit thiscrime?

o Substantial stepMPC uses this test (5.01) Did the D take a substantial step toward completing this crime? MPC goes further, saying the step must corroborate the Ds criminal intent

(5.01(2))

End up convicted of an attempt at a much earlier point in time Some of these tests focus on how much remains to be done before the crime happens Other tests focus on how much the D has actually done, which is a very different analysisImpossibility

Factual impossibilityfacts beyond the Ds control prevent the crime (like in Rizzo, wherethe Ds couldnt have committed the crime they wanted on that day

o Not a very sympathetic argument in courts view


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Legal impossibilitya D is doing something he believes is against the law, but its notactually illegal

o Most courts do believe this is a defense Hybrid impossibility

oExample: attempting to bribe a juror in a high stakes trial, but that person is notactually a juror

Not a factual mistake like Rizzo; its a mistake about the legal status ofsomeone

Legally impossible for this crime to have been committed (defenseargument), but prosecution will say jury tampering is a crime and you got

lucky by making a factual mistake

o Most courts will treat them like a factual impossibility in such a hybrid situation (i.e.its not a defense)

oIn hybrid cases, its always a crime that youre trying to commit

o Tiny category where Ds can get offinherent factual impossibilities in hybridsituationwhat youre doing/trying is a crime, but youre never going to be able to

succeed the way youre doing it

Voodoo casestrying to kill someone by using a doll and incantations (nevergoing to work)

Abandonment

Once someone has crossed the line b/t prep and attempt, should we allow them to give up,not intend to do it again, and go back over the line?

At common law, the rule was that once you crossed the line, you couldnt go b ack

o Makes sense when you think that common law tests place the line closer to theactual commission of the crime, so you could change your mind before you ever

crossed the line to begin w/, even after making a couple of steps toward the crime

MPC lets the attempt go a little further, because to punish someone as soon as they crossthat line under its tests would not be a good deterrence policy

o MPC convicts you of the crime of attempt much sooner, when youve take that firstsubstantial step toward attempt

o So if you take one step, you might as well take them all if youre just going to bepunished as severely if you do complete the attempt or if you dont

Solicitation

Involves the asking, enticing, inducing, or counseling of another to commit a crime Solicitor is morally more culpable than a conspirator


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Offense of solicitation merges into the crime solicited if the latter offense is committed orattempted by the solicited party

Conspiracy

Definition of conspiracy at its most basic levelAgreement by two or more people tocommit a crime

Assess liability much earlier in time, sometimes before a substantial step has been taken, orabout that same time

Crime is complete upon formation of the agreement Same mens rea issues as with attempt law, with whether we hold conspirators responsible

for the unintended consequences of their plan to commit a crime

Dont get confused b/t the conspiracy itself and the people who are a part of the conspiracy(conspirators)

Traditional common law approach:o Agreement to commit a crime, fairly narrow approach to conspiracy, would have to

have at least two people

o Specific intent crime, purpose to commit whatever that target crime iso Usually punished as a misdemeanor

MPC Approach (5.03)o Broadens conspiracy in terms of when you can convict peopleo Agreement made w/ purpose of promoting the commission of the crimeo Mens rea is purposeo MPC uses a subjective approachsomeone is guilty if he agrees to commit a crimew/ someone else; focuses on the individual, what they agreed or didnt agre e to do,

regardless of whether we can find the person w/ whom you conspired

o Punished the same amount as the target crimeo Felonies under the MPC are virtually all felonies in the 3rd degree; that is the defaulto If convicted of conspiracy, attempt, and the completed crime, you can only be

punished oncewhich will ultimately be the same

Modern common lawso Agreement by 2 or more personso Most jurisdictions require some overt act, something besides the agreementtending toward the crime (doesnt need to go as far as a substantial step)o Punished in most states only as a proportion of the punishment of the target crimeo In most states you can be convicted for conspiracy and the completion of the target

crime, because theyre two separate things

Prosecutors love conspiracy law; Ds hate it


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o Much easier to establish a conspiracyo Once youve established conspiracy, conspirators become responsible for a whole

host of other activities

o Based on a smaller quantum of evidence than any other crime thats prosecuted Mens Rea for Conspiracy

Two different mens rea requirements:o Purpose to agreemost of the time this is not going to be the big issueo Purpose to promote target crimemore often will be more problematic, especially

in terms of very large-scale conspiracies where people think theyre agreeing to

commit smaller conspiracies, so hard to get everyone under the same target crime

We need not just the agreement but an overt act that helps support our idea that aconspiracy exists

oInfer the agreement from the actions of the people afterward

o The more orchestrated it looks, the more willing a court is to infer a conspiracyo We dont have many hard and fast rules for inferring a conspiracy, more a totality of

the circumstances

o Overt act doesnt have to reach the level of a substantial stepo Only one person needs to commit the overt act to establish the conspiracy itself,

not to establish guilt for any particular person

o States are inconsistent in terms of whether they require an overt act for conspiracyo Cases tend to fail for lack of charging the overt acto MPC says you dont need an overt act to charge conspiracy for the most serious

crimes, but for everything else, you do need an overt act

Pinkerton rule: a very strong rule in the federal courts; factors a court needs to look at todetermine where you can blame one conspirator for what the other one does

o Act needs to be in furtherance of the conspiracy itselfo Needs to be w/in the scope of the conspiracy (often folded into both of the other

analyses)

o Has to be reasonably foreseeable to the conspirators Rule: you cant conspire to commit an unintentional crime

People v. Swaino Just because someone dies doesnt mean you should try to convict them of

conspiracy to commit 2nd degree

o Conspiracy is the overall charge for what the conspirators do at the front end


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o Then you can go after them for what actually happened, and they may be punishedmore harshly for those crimes directly rather than conspiracy to commit those

crimes

Intent may inferred from knowledge:o

When the purveyor of legal goods for illegal use has acquired a stake in the ventureo When no legitimate use for the goods or services existso When the volume of business w/ the buyer is grossly disproportionate to any

legitimate demand, or when sales for illegal use amount to a high proportion of the

sellers total business

People v. Lauriao Case deals with the sale of goods that makes a conspiracy possibleo Just because youre aware of how your service is being used doesnt mean you have

a purpose to further that crime

oCourt looks at several factors, kind of an alternative mens rea for suppliers, allowedto substitute for ordinary purpose requirement

Knowledge plus Direct evidence of participation, or Inferencestake in the crime, volume of business, legitimate uses of

the business, or

Seriousness of the crime (threat to physical person of people, veryserious drug crime...)

MPC has no special rules for suppliers

How a conspiracy might be terminated

Once youve agreed with the correct mens rea, youve committed the crime of conspiracy Common law not overly sympathetic to a change of mind by someone who already agreed

to be a part of the crime

o Much more sympathetic to saying that once youre out, youre not responsible forwhat the other conspirators do after that toward the crime

To really withdraw and not be responsible for the conspiracy, the court says you have to doit immediately after realizing youve made an agreement to commit the crime, certainlybefore the overt act

o By withdrawing after the overt act, you are responsible for the conspiracy, but notfor the crimes that occur later

Withdrawal needs to involve letting the other conspirators know that you no longer intendto complete the crime, a complete voluntary withdrawal


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MPC has idea of abandonment (5.03(7)(c)abandonment)o Allowing you to withdraw and not be liable for the subsequent activities of the

conspiracy

True renunciation of conspiracy (MPC 5.03(6)renunciation of criminal purpose)o

Allows you to get out of the conspiracy altogethero Most states dont enact this provisiono Requires thwarting the success of the conspiracy (usually involving going to law

enforcement)

o A difficult burden to ever meet If no one does anything, if the conspiracy goes dormant, it stops at the end of the statute of

limitations

Liability for the Conduct of Another

Accomplice Liability General accomplice liability occurs w/o conspiracy, where people just help each other out Complicity (accomplice liability) is not a separate crime, a person is guilty of the same

crime as the person who commits ityou dont commit the crime yourself, but you help

someone do it

MPC, modern common law approacho Convict the person directly liableo Accompliceanyone who helps that first party commit the crime, you dont really

worry about the degree of complicity

oSome vestiges of the rule that you cant convict the accomplice if the principal isntconvicted (modern common law)

MPC gets rid of that ruleo Accessory after the factsomeone not involved w/ the crime until afterward

Treated differently, such a person not held responsible for the crime itself,not convicted of the target crime felony, punished much less seriously

o For our purposes, everyone is roughly the same unless they come in after the fact Complicity doctrine is not necessarily an inchoate crime

o You can be an accomplice in an inchoate crime, but accomplice liability also appliesfor completed crimes

Because complicity doesnt actually require purpose, as long as you intend to help someoneand you have the requisite intent for that crime, you can be considered an accomplice even

for an unintentional crime

At common law, the accomplice had to actually successfully aid in the crime, somethingthat actually helped the crime occur


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o You had to show that at least minimally, they successfully facilitated that evento Intent to assist, generally requires purposeo Mens rea for underlying crime (usually interpreted to mean you can be an

accomplice for an unintentional crime)

oPunishmentat common law, guilty of substantive crime

MPC doesnt care whether what the actor does changes anythingjust looking at whetherthe accomplice aided or attemptedto aid; you just have to try to be guilty of accomplice

liability

Ask 3 questions:o Whats the underlying crime that happened? Completed burglary? Theft? Is it an

attempt?

o Is the person an accomplice to a crime?o If theres no crime b/c the principal gave up, then you go back to MPC 5.01is this

person guilty of an attempt on his own? State v. Hoselton: how you handle people who seem to be part of a crime, but were not

really sure b/c they seem to be more on the peripheryjust there, but not involved at all?

Or there acting as a lookout ad thats why theyre on the fringes?

o He was clearly w/ the people who were committing a crime, but we dont knowwhat his role was there

o Him just standing there watching when no one comes isnt sufficient, says the court.He needs to be doing something toward furthering the crime

Is knowledge enough? Or do you have to have the purpose to assist?o

Under MPC and majority of jurisdictions, you must have purposeo Minority of jurisdictions say that in some cases you knowing what is happening and

that what you are doing will help is enough

Two-prong test for determining whether complicity mens rea has been met:o Does he have the intent to assist in the conduct?o Then, does he have the intent required for the resultof the conduct?o MPC spells this out directly--2.06(4)whatever the mens rea is for that result, if

you have it, youre on the hook (including for strict liability crimes)

Common law idea that in order to be an accomplice, you have to do something that aidssomeone, somehow make that crime possible or more likely to occur

o It has to be more than you just being there and seeing whats going on Wilcox v. Jeffery: D understood what was going on and he still intended to profit from it by

writing an article for his jazz magazine

The fact that a potential accomplice isnt involved in every single stage of the crime doesntmean hes not involved in the crime at all and isnt an accomplice


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o An accomplice not being a causal factor doesnt mean that what he did wasntcompletely irrelevant

General Defenses to Crimes

1. Categories of Defenses2. [Failure of proof defense]: not really a defense, just another way of asserting the

requirement of the prosecution that it prove all elements of the crime beyond a

reasonable doubt

a. You want to use this first to negate mens reab. You dont usually jump to the affirmative defenses first

3. Offense modificationsa. Basically just where you have a statute that says somebody who is otherwise

involved in this crime (w/o whom the crime couldnt have occurred) cant be

prosecuted

b. The victim of a crime cant be prosecuted as an accomplice to the crime(someone w/o whom the crime couldnt have occurred)

4. Public policy (non-exculpatory)a. Give people a pass in situations where they are otherwise culpableb. Example: statute of limitations; the time limit is a stronger public policy than the

need to convict you

5. Key Defenses:6. Justification

a. What you did is normally morally wrong and a crime, but because of the specificcontext, we wont just tolerate it; well say it was the right thing to do

b. Negates the social harm, you go freec. Ex: self defensed. Need several things for justification to be a defense:

i. There usually must be a triggering conditionii. It has to be necessary for you to respond that way

iii. Response has to be proportional to the threat7. Excuse

a. Different from justificationb. We think that what the person did was wrong, but we understand why he did itc. At common law, this defense led to dropping the severity of the crime you were

charged with, didnt completely let you off the hook


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d. Now, because of the confusion, there are many states where excuse is acomplete defense

e. Think about voluntary manslaughter and provocation here8. In most jurisdictions, D has the burden of proving any affirmative defenses9.

Mental capacity issues (insanity, use of alcohol or drugs)

Principles of Excuse

Insanity

Using this as a true, affirmative defense and it is an excuse Not a failure of proof argument Types of distinctions b/t sane an insane that are salient in this analysis:

o Defendants own history (of this behavior) and whether this person has soughtmedical care and whether they have a definable medical condition

oSeverity of crime, need to protect societysome believe this is the crux of theinsanity defense analysis

One major insanity test: extent to which person can control their actions; but we cantpredict this with any degree of certainty

What it means for someone to be found not guilty by reason of insanity:o Not the same as an acquittalo D is almost always involuntarily committed to state or fed mental health institution

for some pd of time (states almost always differ in how long that is)

o Held until you can prove you are no longer a burden/danger to society; people areusually in for quite a long time, often longer than the regular prison sentence forthat crime

o Insanity plea doesnt work very often at allo You have to give notice ahead of time that youre planning on using the insanity

defense, to give the prosecution and court time to prepare

o Burden is on the D to prove insanity (law assumes every person is sane) See handout chart: The Insanity Defense(s)

o MNaghten test: was the standard for insanity, is the test we come back to if wethink weve gone too far or become too flex ible on insanity test

What does it mean to not appreciate the nature and quality of your act?

Not a very defense-friendly standard: very strict, requires complete lack ofcognition

Irresistible impulse added to the MNaghten test: the model isnt supposedto be an irresistible impulse that arises in the moment, but thats how juries

interpreted it, thought it limited to impulsive behavior


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o Durham test (product test): excused the D if what the D did was the product of amental disease or defect

Relies heavily of experts (why do you need judge and jurors? No role for factfinder whatsoever)

oMPC combines second aspect of MNaghten and the irresistible impulse test

Dont have to demonstrate complete incapacity and dont have to show thatyou knew the nature/quality of the act

Broader standard, a lot more leeway for psychiatrists to testify how theynormally analyze patients sanity

Became the dominant test in US jurisdictions until Hinckley was found notguilty of attempting to assassinate the president by reason of insanity

public outcry

o Federal law: result ofsevere mental disease or defect, but otherwise goes back toMNaghten test

Guilty but Mentally Ill: new class of conviction; D receives same sentence as saying justguilty flat out, but you serve out your sentence in treatment for mental health at prison

o Criticized: some say jurors will always choose this conviction; other criticism is thatyou end up putting the person in prison w/ the rest of the prison population b/c

theres nowhere else to put them, inadequate facilities for giving mental health

treatment

Diminished Capacity

At the time of the crime, the D was impaired, but not insane

This type of evidence can be used un a couple of wayso failure of proof defenseto negate the mens rea of an element of the crime

Might be able to be held responsible for a much less serious crime, so stillguilty of something

Problem is that theres nothing to say that this person needs to receivetreatment for anything

o Partial responsibility defense: separate excuse based on diminished capacity,reduce the degree of your homicide crime (for example; this was how was usually

used in CA, very controversial)

CA got rid of this after the twinkie defense Very rarely used to say that the D is less responsible b/c of diminished

capacity

o How would this be discussed in the MPC? Extreme emotional disturbance, incorporated w/ heat of passion


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Diminished capacity nothing more than another emotional disturbance typeof argument

Clark v. Arizona: no constitutional right to bring in evidence of diminished capacity unlessyoure making an insanity defense; its up to the state to decide how to treat these issues

Self-Defense Core of self-defense:

o Reasonable belief that force is necessaryto protect yourselfo Force must be proportionalo Imminent harmsomething is about to happen, you have to respond at that

moment

Right of homicidal self-defense only goes to those free from fault in the confrontation If you can retreat and achieve complete safety, then you cant use deadly force and then

later the self-defense

The original aggressor can use self-defense only if the other party escalates theconfrontation and it becomes necessary to defend against serious injury or death he never

intended to inflict

State v. Norman:o Most important elements of perfect self-defense in NC

Imminent danger of great bodily harm (necessity) Reasonable person would believe that they were in that level of danger

o Imperfect self-defense in NC: usually used when D is the initial aggressor, when theinitial aggressor didnt have the intent to kill or cause serious bodily injury

oWhat is imminentdanger?

o Can a woman whose alcoholic husband has abused her for many years andthreatened to kill her in increasing measure during the week prior to the crime kill

him in self-defense while he is asleep? Court thinks no

o Case is no longer good lawo MPC 3.04: uses the phrase immediately necessary instead of imminentMPC

drafters wanted to broaden the timeframe to make situations like this one easier for

courts to decide

Criminal Law Outline-1

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