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12/02/2014Elements of Criminal Conduct

  Sources of Criminal Law

• Common Law: almost never followed anymore but is still important

• Statutory interpretation (uses common law)

o Absent a definition to the contrary, it usually believed that the use of a common law term in a

statue retains it meaningo Common law can also fill gaps in statutes

• MC

o !hen adopted by a state it is binding

o "therwise it is persuasive

#$sable on the e%am as persuasive

• &ypes of elements: '*(+): an element of an offense means such conduct or such attendant

circumstance or such result of conduct

o Conduct: what does or how acts

-g enters, restrains, ta.es, ma.es

o Circumstances: bac.ground facts,, conte%t, state of affairs static facts

A dwelling, belonging to another, at night, under /, not open to public

o 0esults: effects of what does

Causes death, causes bodily in1ury, brings about

$sually more about an end result that can be gotten there in multiple ways

$ses common sense

• &ypes of crime:

o Malum in se: crime that is bad and of itself (morally wrong)

o Malum prohitum: crime that is bad because it is prohibited

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  resumption

•  2ature of resumption

o Sometimes it is hard to prove an element of a crime

o Conte%t will determine whether this is good enough to presume the element

o resumptions says: whenever 3 fact(s) are proven, a factfinder must (or may), presume 4

4 is usually an element of the crime charged

-g intent to .ill "nly evidence is that the pic.ed up a loaded gun, pointed it in 56s

direction, and fired it

!here this evidence is found the 1ury may find intent7

o 8may9 find permissive presumption

it is really an inference ; not a rule that formally shifts the burden of proff 

an inference is rational if, and only if, the presumed fact (4) more than li.ely than not

flows from the basic fact

o MC

Allows permissive

) that causes, (*) social harm

• !hy we don6t unish &houghts

o Actus reus is premised on the belief that it is morally wrong to punish people for unacted?upon

intentionso 5iolate living in a free society

•5oluntary Act

o @eneral rule: generally, a person is not guilty of a crime unless her conduct includes a

voluntary act ew criminal statues e%pressly provide for this re=uirement, but it is there as an

implicit element

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Common law proof: See Martin v State: was charged with violation of an

offense that provided that 8any person who, while into%icated or drun.,appears in any public place7and manifests a drun.en condition Bshall beconvicted of an offense9D the court interpreted the word 8appears9 to presuppose a voluntary appearance in public, which was not proven at 6strial

• Case doesn6t use the voluntary act doctrine to dismiss the case ;

 because there was an act7EEo 8&he Act9

An 8Act9 is simply, a bodily movement, a muscular contraction

ulls a trigger, raiser an arm, blin.s her eyes, turns ignition .ey, wal.s

An act involves physical, although not always visible behavior 

• &al.ing

-%cludes the internal mental processes of thin.ing about, or of developing an

intention to do a physical act (eg 8mental acts9) Aspects

Fodily movement may not count

•

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• refle%ive actions, spasms, epileptic seiJures, bodily movement while

the actor is unconscious or asleep

• when someone has a seiJure, we assume that there body hot someone,

not their mind

Gabitual acts: Kust because someone isn6t sure that they are doing something

does not mean the act is not voluntary

• -g a chain smo.er may light a cigarette 8without9 noticing

• Gere he don6t notice that we notice ourselves , 8we are aware of

everything but ourselves9 ;

• Law treats habitual acts as falling on the voluntary side of the

continuum

Gypnotism: not usually seen as voluntary

• 0ight on the line

See eople v 2etwon:

• After stopping car and trying to arrest , gun fight was

unconscious or semi?conscious even later at hospital

• Convicted of voluntary manslaughter, no unconsciousness

instructions

• $nconsciousness is complete defense

o 0easonable 1ury could have inferred was unconscious

• $nconscious: still aware, able to grab gun and shoot, shoc. refle%es,

etc See Cogdon, p >> (somnambulism)

• A%ed daughter while asleep to protect from Horean war 

• Rule: acts committed while sleepwal.ing are involuntary

&ime? raming

&he does not have to show that every act was voluntary (or even the last

act), it only needs to show that the defendantDs conduct include a voluntaryact

Frings the =uestion of how long bac. do you have to go to find the voluntaryact, because people have obviously committed voluntary acts before

• -g if you .ill someone while sleeping, you committed the voluntary

act of brushing your teeth7

•

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• See eople v ecina, p >

o .new he was epileptic, consciously chose to drive

o Charged with operation of a vehicle resulting in death

o Rule: acts committed during epileptic seiJure are involuntary

o Rule: if .nows he suffers from epilepsy, consciously

chooses to disregard potential conse=uences acted

voluntarilyo Key: how broad or narrow is the time frameE

Crimes of possession

8inchoate9 crimes because they are incomplete ; there real purpose is to

 provide the police with the basis for arresting those whom they suspect willlater commit a socially in1urious crime

the voluntary act is .nowingly receiving or procuring the property or that he

failed to dispossess himself of the ob1ect after he became aware of its presence

5oluntary Act: MPC

§ 2.01(1): 2eed 8a voluntary act or the omission to perform an act of which

he is physically capable9

§ 1.13(2): 8Act9? 8bodily movement whether voluntary or involuntary does not define voluntary acts, but does enumerate bodily movements that are

involuntary

• § 2.01(2)(d): refle%es, convulsions, conduct during unconsciousness,

sleep, or due to hypnosis, and generally an conduct that 8is not a product of the effort of determination of the actor, either conscious orhabitual

• § 2.01(!): 8possession9 is an 8act9 if the possessor either .nowingly

obtained the ob1ect possess or .new she was in control of it 8for asufficient period of time to have been able to terminate7possession9

o See Fradshaw: ?commercial truc. driver crosses Canadian

 border into !ashington with lbs of mari1uanaD 2o

evidence that the truc.er was aware that the drugs werehidden in his truc.D !ashington Supreme Court upheldconviction for possession of illegal drugs re1ecting argumentthat awareness is inherent in concept of possessing an item

o States differ 

o "mission or actE section

-%ception

• ' >NO(): &he 8act9 re=uirement does 2"& apply to 8violations9

(offenses for which the ma%imum penalty is a fine or civil penalty

• -g if you fall asleep while driving and run a stop sign, it does not

matter

•

Concedes that the fairness in this is lac.ing, but they determined thatlitigating the involuntary?act claims would undermine effective lawenforcement

• "missions

o Sub1ect to a few limited e%ceptions, a person has no criminal law duty to act to prevent harm

to another even if he can do so at no ris. to himself, and even if the person imperiled may loseher life in the absence of assistance

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Criminal law distinguishes between an act that affirmatively causes harm, and the

failure of a bystander to ta.e measures to prevent harm Criticisms: morally repugnant, lac.s social cohesion

0ationale: problem with drawing the line ; how many people should be convicted

(would allow the police a lot of discursion

roblems proving mens rea ; can6t infer people6s intent very easily Gow do

you .now someone who heard screams thought it was something else roblem with causation ; can6t determine if not calling for help actually

caused the death At that rate everyone would be guilty for not helping -gnot giving money to a homeless man

• 0ead more about causation re=uirements

eople often misconstrue what they see ; eg might ruin an undercover

operationo -%ception to the 2o?liability rule

Common Law uty to Act: 8Commission by "mission9 (!hen there is a duty to act)

Status relationship

• $sually founded on the dependence of one party on the other, or on

their interdependence

• -g parents to their monr childrenD married couple to one anotherDand masters to their servants

o See Kones v $nited States:

o Rule: "ne of t#e elements of an omission crime a $ury

must find to #a%e e&isted in order to find t#e defendant

'uilty is t#at t#ere as a le'al duty of care oed t#e

%ictim y t#e defendant.

o Rule restated: E%en if you satisfy all elements of crime*

ut if you satisfy t#em y %irtue of an omission* t#en you

are not 'uilty unless t#ere is a duty to act re+uired y a

statute

o acts: N?month?old Anthony Lee @reen, was placed with the

defendant &he defendant was a family friend of the baby6smother, Shirley @reen Shirley @reen lives with thedefendant for an uncertain amount of time

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• Creation of a ris. 

o A person who wrongfully harms another or another6s

 property, or who wrongfully places a person or her propertyin 1eopardy or harm, has a common law duty to aid thein1ured or endangered party

o -g negligently in1ures 5, has a common law duty to

render aid to 5 >N(*) ; failure to report a dangerous fire

(>) "ther sources: the duty to act is “otherwise imposed by law”

•

include duties arising under civil law (torts or contracts) PSee ope v State: Rule: ,#e common la rule of t#e -nited tates does

not im/ose a duty to tae affirmati%e action u/on ystanders in

emer'ency situations if t#ey are not res/onsile for t#e situation

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acts: efendant Ms Koyce L ope too. Melissa 2orris and her * month old

infant into her house one riday after church services 2orris was sufferingfrom mental illness and would go through violent religious frenJy "nSunday afternoon, 2orris went into frenJy, claimed she was @od, and assertedthat Satan had invaded her child

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Moreover, the offense will always contain 8attendant circumstances9

(8circumstances9) elemts  2eed to be able to distinguish between 8conduct,9 8result,9 and 8attendant

circumstance9 elements in the definition of a crime

o 8Conduct9 -lements (or 8conduct9 crimes)

some crimes are defined, at least in part, in terms of harmful conduct

Garmful results are not re=uired

-g 8intentionally dri%in' under t#e influence of alco#ol9

&he words in bold describe the actus reus of the offense

More specifically, they state the social harm of the crime ; the wrongful

conduct of driving a car in an into%icated condition (which conduct implicitlymust include a voluntary act)

Conduct crime because no harmful result is re=uired to be guilty of the

offense ; the offense is complete whether or not anyone or any property istangible in1ured because of the into%icated driving

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• &he events M$S& occur at night

O

Q tried to steal rum from ship6s hold, lit match to see, fire destroyed ship

Gad no mens rea with respect to lighting the fire

Rule: mens rea must be with respect to the specific crime in =uestion

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o  8

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o resumed to intend the natural and probable conse=uences of

your actt

P8&ransferred

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someone 8.nows of a fact9 when

is aware of the fact (8actual .nowledge9)

• eg put the mari1uana there

correctly believes that the fact e%ists (8correct belief9)

• eg smells the mari1uana and correctly believes it is present

!illful blindness

•

() Aware of a high probability of the e%istence of the fact in =uestion• (>a) ta.es deliberate action to avoid confirmation of the fact

(affirmative step)D or 

• (>b) purposely fails to investigate in order to avoid confirmation of

the facts

• See $S v Kewell: is guilty of 8willful blindness9 where he agreed

to drive 36s car into the country although he was highly suspious thatdrugs had been concealed in it, and he purposely avoided loo.ing inthe truc. or elsewhere because he was afraid that it would confirm hissuspicions

• issent Rule:

o Awareness that there is a high probability that a fact e%ists

o &a.e deliberate steps to avoid .nowledgeo $nless actually believe the circumstances is not present

  PPSee @lobal?&ech v S-F, p >R>

• Hnowing patent infringement (federal)

• 7illful lindness: sub1ectively believe high probability a fact e%ists

o &a.e deliberate actions to avoid learning of that fact

• osner: p >O*, active blindness not 1ust passive blindness (burry

head) MC: § 2.02(8)

• -%cludes willful blindness

o -g throw air condition out of window

• Key: no culpability in cases of low probabilityo -g * suitcases, only of them actually has drugs

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o 8!illfully9

an 8act done with a bad purpose9 or with 8an evil motive9

may also connote an 8intentional violation of a .nown legal duty9

or 8 a purpose to disobey the law9

often use conte%t to determine

in most circumstances, an intentional wrongdoer acts with a bad purpose or evil

motive, and with .nowledge that he is violating the law, so it does not matter whichmeaning of 8willful9 is applied

merges into mista.e of law: because if you thin. the law is one thin., you are not

willfully disobeying it (purpose to disobey the law)

See Mista.e of Law

o 82egligence9 and 80ec.lessness9

0is.?ta.ing

() desirable or at least neutral ris.?ta.ing

(>) ris.?ta.ing that 1ustifies civil liability (8civil liability9)

(*) ris.?ta.ing that crosses the civil line and 1ustifies criminal liability

(8criminal negligence9) and

() even more culpable ris.?ta.ing (8rec.lessness9)

some courts have sometimes used the terms 8negligence9 and 8rec.lessness9interchangeably, particularly before the advent of the MC

CAS-

82egligence9 ?? "FK-C&

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8Civil v Criminal9

civil negligence ordinarily is considered an inappropriate predicate by which

to define criminal conduct

• See Santillanes v State:

criminal responsibility usually needs criminal negligence

Criminal negligence is conduct that represents a gross deviation from the

standard of reasonable care

• See State v GaJelwood

A person is criminally negligent if he ta.es a substantial  and un1ustifiable ris. 

of causing the social harm that constitutes the offense charged 80ec.lessness9 SG"$L 2"& be e=uated with criminal negligence

unishing 2egligence

"pponents: can6t punish people for what is not on their mind

• oes not act as deterrence

roponents: at least sometimes, blame is 1ustified on the ground that the

negligent actor6s failure to perceive the ris.iness of his conduct constitutes8culpable indifference9 to the rights and interests of those around him

•

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Criminal Reclessness: re=uires proof that the actor disregarded a substantial

and un1ustifiable ris. of which he was aware

• iffers from criminal negligence in that here the negligence is

founded on the actor6s state of mind ; whether he new of the risand yet consciously disregarded it 

• Criminal negligence involves inadvertent ris.?ta.ing ( should have

been aware)

o 8Malice9 ; (2"2?G"MC

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o "therwise innocent conduct needs to be shown that it is

guilty

 

5Specific

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-g 8 N*(>)(a): when purposely causing particular result is anelement of an offense, that element is established if 8theactual result differs from that designed or contemplated7,only in respect that a different person or different property9 isharmed

o Also, the Code provides that a defendant is not relieved of

liability for an offense if less harm occurs that it was theactor6s conscious ob1ect to cause -g if 6s conscious ob1ect

is to .ill two persons, but he only succeeds in .illing one,8purpose9 is established

o  *ut , if intends to .ill 3 an instead .ills 3 and  4, 6s

 purpose to .ill 3 would not apply as to y, because he hascaused more, not less, harm than was designed 6s liability,if any for 46s death would have to be based on a differentstate of mind directly related to 4, perhaps on the ground thatfiring a gun at 3 in 46s pro%imity constitutes a rec.lessnessas to 46s safety (MA4F- $S-$L LA&-0)

• 8urposely9 is a mental state comparable to the first ; only the first ;

of the two alternative common law definitions of the word8intentional9 (not .nowingly)

o eg the bombing his wife and praying for others e%ample(CL: purpose to .ill wifeintent, .nowing to .ill passengersintent, MC: purpose to .ill wife, no purpose to.ill passengers)

o (2"& 0-A) 8urposely9 with respect to conditional results:

eg threatens to .ill 5, the driver of an automobile, unless5 relin=uishes the care to

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' >N>(R): when a particular purpose is an element of

n offense, the element is established although the purpose is conditional, unless the condition negativesthe harm or eveil sought to be prevented by the lawdefing the offenseE See ressler pg fn*>

!ith 0espect to Attendant Circumstances 

• § 2.02(2)(a)(ii): A person acts 8purposely9 with respect to attendant

circumstances if he 8is aware of the e%istence of such circumstancesor he believes or hopes that they e%ist9 aware or hopes

• -g if enters an occupied structure in order to commit a felony

inside, he has acted 8purposely9 regarding the attendant circumstancethat the structure was occupied if he was aware it was occupied orhoped it would be

8Hnowingly9 ?? S$FK-C&

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A ris. is 8substantial and un1ustifiable9 if 8considering the nature and purpose

of the actor6s conduct and the circumstances .nown to him, its disregardinvolves a gross deviation from the standard of conduct that a lawabiding person would observe in the actor6s situation9

§ 2.02(d):  82egligent:9 A person6s conduct is 8negligent if the actor 8 should  be

aware of a substantial and un1ustifiable ris. that the material element e%ists or willresult from his conduct9 ; ("FK-C&

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' >N>(*): !hen the definition of a criminal offense is silent regarding a matter of

culpability as to a material element of the offense (as the above burglary offense) Thematerial element “is satisfied if a person acts purposely, knowingly, or recklessly.” 

-g burglary 8enter an occupied structure with purpose to commit a crime

therein9

• 0ec.lessly, .nowingly, purposely: C"2$C& of entering

• 0ec.lessly, .nowingly, purposely: A&&-2A2& CN?year?old male with an , who had consensual intercourse with an underage femaleDholding that the male6s mista.e regarding te girl6s age was immaterial

• Absence of mens rea for the A&&-2-2& C

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 2on?public welfare offenses typically involve conduct malum in se 5iolators

of such laws, therefore are stigmatiJed despite the absences of proven moralfault

o Arguments for strict liability: () the absence of mens rea re=uirement may have the desirable

effect of .eeping people who doubt their capacity to act safely form participating in dangerousactivities, such as manufacturing pharmaceutical drugs or using dangerous instrumentalities(>) &hose who engage in ris.y activity will act will greater caution in light of the strict liability

nature of the law (*) an in=uiry into the actor6s mens rea 8would e%haust courts, which have todeal with thousands of 8minor infractions every day9

o Alternative to Strict Liability: continue to define public welfare offenses in strict liability

terms, but permit a 8lac. of mens rea9 affirmative defense -g if a person sold li=uor to a minor, she would be convicted unless she showed

strong evidence that she too. reasonable care to determine customer6s age See 0egina v City of Sault Ste Marie (Canada): Compelling grounds for

three categories of offenses:

• Mens rea, consisting of some positive state of mind such as intent,

.nowledge, or rec.lessness, must be proved by the prosecution

•  2o necessity for the prosecution to prove mens reaD doing the

 prohibited act prima facie imports the offense, lea%in' it o/en to t#eaccused to /ro%e #e too all reasonale care

• Absolute liability where it is not open to the accused to e%culpate

himself by showing that he was free of faulto Constitutionality of Strict Liability

See $S v Falint (SL staute)

( was indicted for the sale of narcotics (opium and cocoa) without a re=uired

form from the government  id not  allege .new he sold prohibited drugs&he ma%imum penalty for the strict?liability public welfare offense was Oyears imprisonment

Rule: 2o scienter Bmens rea re=uirement under a statue if the purpose of the

statue would be obstructed by such a re=uirement

• Congress decided protecting innocent purchasers was more important ; thus the crime should be strict liability

o Seller better able to .now, difficult to prove .nowledge ;

helps protect consumers See $S v otterwiech: (SL statue)

convicted of mislabeling products even though no evidence of mens rea bIc

the statute did not re=uire mens reaD similar language regarding the weighingof the costs and benefits of applying strict liability

•  2ot a traditional crime

• rotect consumers

Compare $S v Morissette (2o SL)

was convicted of conversion of government property that he believed had been abandoned &he statue did not e%pressly re=uire proof of an intent tosteal property Gowever, because the statue evolved from the common lawoffense of larceny, which contains such a re=uirement, the Supreme Courtconstrued the conversion statue as re=uiring specific intent

•

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• Mens rea may be presumed in the absence of legislative intent

• Morissette Low punishmentIpenalty

o * Low stigma

o $sually able to prevent with reasonable care

See Staples v $S, p >// (2o SL)

convicted under 2ational irearms Act for possessing an unregistered

firearm defined by the act &he gun was capable of firing automatically dueto a metal part which usually prevents the weapon from firing automatically being finled down said he didn6t .now that the weapon fired automaticallyand that the weapon had never fired automatically when he used it Statute issilent regarding mens reas for the violation convicted over his re=uest thatthe 1ury be instructed that he must .now that the gun would fire automatically

&radition of gun ownership, no mens rea criminaliJe a lot of behavior 

@uns are part of society do not put Q on notice (li.e grenade)

Rule: absent clear intent from Congress, presumption of mens rea

re=uirement in any statute defining a felony offense Morissette indiciaE (SL, no SL, no SL, SL)

See @uminga

See Lambert v California: the Court overturned Ds conviction for failing to register

with the city of Los Angeles as a prior convicted felon, as re=uired pursuant to a strict?liability ordinance of which was unaware 2otwithstanding the usual rule thatignorance of the law is no e%cuse, the Court reversed the conviction on 8lac. of fairnotice9 due process grounds

See NO: provides that the voluntary act and mens rea re=uirements need not

apply to offenses graded as 8violations,9 rather than crimes9 85iolations are offensesthat cannot result in imprisonment or probation, but may result in fines9 (U VONN)

MC is strongly against strict liability

#different outcomes for statutory rape and some drug offenses

Mista.es of acto eg shoots and .ills 5, believing he is .illing a wild animal

o eg carried away property belonging to 5, incorrectly thin.ing that he has permission to

ta.e ito -ach actor was either unaware of, or mista.en about a fact pertaining to an element of the

offense for which he might be prosecutedo efinitions:

8

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o 0ationale: An actor who is mista.en about some fact 8does not have the same .ind of

opportunity to avoid evil that he would have if he .new what he was doing

o Must be done through mens rea because 8involuntary9 actus reus has to do with cognition

(what he is aware of) rather than his volition (his capacity to control his conduct)

o Conte%t of broad generaliJed mens rea and narrower normal culpability mens rea (elemental)

@eneraliJed Mens rea: proof that a person was factually mista.en demonstrates that

despite appearances, he acted in a morally blameless manner manner and that,

therefore, he is not deserving of punishment for causing harm

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• Md++* (authoriJing conviction of a >N?year?old male with an , who had consensual intercourse with an underage femaleDholding that the male6s mista.e regarding te girl6s age was immaterial

• Absence of mens rea for the A&&-2-2& C

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•  2ormally someone cannot be guilty unless the negligence is gross

!ith mista.e of fact, however, 8unreasonableness9 is not alwaysdefined in a manner that re=uires the heightened degree of fault As aresult, people can be charged responsible for conduct that wouldconstitute no more than civil negligence

ractical -ffect: &he mista.e?of?fact rule permits conviction and punishment

of a negligent wrongdoer as if he were guilty of intentional wrongdoing

• -ven though the person who did it intentionally was much moreculpable than the person with the unreasonable belief, they are punished the same

o Moral?!rong octrine (controversial and increasingly uncommon)

Rule: "nce can ma.e a reasonable mista.e regarding an attendant circumstance and

yet still demonstrate moral culpability worthy of punishment Fasis: 8&here should be no e%culpation for mista.e where, if the facts had

 been as the actor believed them to be, his conduct would still be7immoral9essentially, the intent to commit an act that is immoral furnishes the re=uisiteculpability for the related, but unintended, outcome

See 0egina v rince: was charged or 8unlawfully ta.ing or causing to be ta.en, any

unmarried girl, being under the age of R years, out of the possession and against thewill of her father or mother9 ; &he girl in =uestion was , but the 1ury found that honestly and reasonably believed that she was /

Framwell:

# irst, apply the reasonableness test, if it is reasonable then move to the

moral?wrong test Second, what did thin. he was doing: 8&a.ing an /?year?old girl out of the

 possession and against the will of her parents9 &hird, evaluate the morality of the conduct, based on the facts the actor

reasonable believed them to be: Gere the ta.ing of an / year old against her parent6s will was selfevidently wrong   imputes .nowledge to that he

acting immorally

0ule: a person who .nowingly performs a morally wrong act assumes the ris. that theattendant factual circumstances are not as they reasonable appear to be and that,therefore, his conduct is not only immoral but also illegal

&he doctrine is triggered when the defendant6s conduct would be immoral had

the situation been as he supposed

• -g if the girl was homeless and he was ta.ing her 8for her

 protection9 that would 2"& be a immoral act triggering the doctrine roblems:

 2o consensus on 8moral wrongness9

5iolates Legality octrineWconflate immoral and illegal by ma.ing certain

acts illegal that the legislature did not ma.e illegal

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• rosecution must show absence of genuine belief girl X

o Lesser CrimeILegal !rong octrine

-g !hat if a state provides that se%ual intercourse by an adult with a person under the

age of > constituted first?degree rape, but it is the lesser offense of second?degreerape if the victim is older than > but under the age of R

Assume that reasonably believes that the person with whom he is having

se%ual intercourse is years old, but in fact the victim is Should be convicted of first or second degree rapeE

Rule: ): Moral wrong and lesser crime doctrines continue to be important

in offenses involving minors, se%ual behavior, andIor drugs eople v "lsen (+/)W is convicted of child molestation on a victim who is only

* years and N months old claimed that he did not brea. into the trailer and thatthe se% was consensual and girl said she was R Court upheld conviction despite amista.e of age for reasons

Statute ma.es clear that didn6t intend for reasonable mista.e to be a defense

ublic policy to protect young children

Lesser crime argument???mista.e of fact relating to the gravity of an offense

will not shield deliberate defender from full conse=uences of the wrongactually committed???assumes that would guilty of statutory rape even ifgirl was over as believed

Severity of punishment

 2"&-: CA, unli.e most states, crime of statutory rape allows reasonable mista.e of

age as a defense but for more serious offense of child molestation, no mista.e of age

defenseo MPC Mista.e of act (-lemental approach)

' >N>(): "ne is not guilty of an offense unless he acted 8purposely, .nowingly,

rec.lessly, or negligently, as the law may re=uire, with respect to each materialelement of the offense9

&here is a mens rea re=uirement for each element of an offense

§ 2.0!(1): rovides that a mista.e is a defense, if it negates the mental state re=uired

to establish any element of the offense or

less, second degree rape or less

is the victim is *, the MC would convict them for second degree rape based

on 6s state of mind

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another eg: poaching deer but end up .illing a person punished for

 poachingMista.e of Law

o Common Law

Sub1ect to very limited e%ceptions, ignorance of the law e%cuses no one

 2either .nowledge nor rec.lessness or negligence as to whether conduct constitutes

an offense, or as to the meaning of an offense, is ordinarily an element of that offenseD

therefore it follows that thee is typically no mens rea element of an offense capable of being negated by an actor6s ignorance of mista.e of the law

0ationales:

Certainty of the Law: the law is easy to .now

Avoiding sub1ectivity in the law

eterring lying about what the person .new

-ncouraging legal .nowledge

o -%ceptions to the @eneral Strict Common Law 0ule

0easonable reliance (e%cuse)

Rule 2" defense: 0eliance on "ne6s own interpretation of the law: A person

is not  e%cused for committing a crime if she relies on her own erroneous

reading of the law, even if a reasonable person ; even a reasonable law trained person ; would have similarly misunderstood the law

• See eople v Marrero 24 (a federal corrections officer, was arrested

for poession of a loaded gun, in violation of a statue that prohibitedthe carrying of handgun without a permit sought dismissal of hisindictment on the ground that the law e%pressly e%empted peaceofficers from liability under the state

• &he statutory definition of 8peace officers9 included any official or

guard of 8any state prion or of any penal correctional institution ???As a federal corrections officer claimed he believed that he wase%empt under the law

• 6s reading of the statue was not unreasonable, indded the trial 1udge

agreed 2onetheless an appellate court concluded that he was not a8peace officer9 within the meaning off the statue

•  2o one is ever e%cused for relying on a personal ;even reasonable?

misreading of a statue

0ule: 0eceiving advice from private council is not a defense

Rule: A person is e%cused for committing a criminal offense if she reasonably

relies on an official statement of the law, later determined to be erroneous,obtained from a person or public body with responsibility for theinterpretation, administration, or enforcement of the law defining the offense

•  2arrowly applied &o be 8official9 the statement must:

o Fe contained in a statue later declared to be invalided

o

> A 1udicial decision of the highest court in the 1urisdiction,later determine to be erroneousD or  eg Can6t act on decisions that are pending in the

Supreme Court

o * An official, but erroneous, interpretation of the law,

secured from a public officer in charge of its interpretation,administration, or enforcement, such as the Attorney @eneralof the state or in the case of federal law, the $nited States

Must be official, eg can6t be the attorney general

telling you at the bar 

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ublic wor.s can6t tell you about the rules of the

road, etc air 2otice (e%cuse)

At common law, it is said that 8every one is conclusively presumed to .now

the law9 &his means not only that citiJens are presumed to understand thelaw, but more fundamentally to be aware of the e%istence of each criminal law

&here are occasional cases in which it is so grossly un1ust to assume that a

citiJen is aware of a penal law6s e%istence that the court gives some leeway See Lambert v California: the Court overturned 6s conviction for failing to

register with the city of Los Angeles as a prior convicted felon within O daysof being there, as re=uired pursuant to a strict?liability ordinance of which was unaware 2otwithstanding the usual rule that ignorance of the law is noe%cuse, the Court reversed the conviction on 8lac. of fair notice9 due processgrounds

Although it appear that this ruling could open up fraudulent claims of not

.nowing the law, the court saw this is an atypical scenario

• &his situation deals with conduct that is wholly passive ; mere failure

to register

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A different?law mista.e, whether reasonable or reasonable, is a defense in the

 prosecution of a specific?intent offense, if the mista.e negate the specificintent in the prosecuted offense

&he doctrine parallels the rule relating to mista.e?of?fact in the protection of

specific?intent crimes (See above) See Chee. v $nites States was an anti?ta% activist who failed to file federal

income ta% returns for R years As a result, C was charged with R counts of

8willfully9 failing to file federal income ta% returns• 8willfully9 means a voluntary and intentional violation of a .nown

law

• e%plained that he attended seminars sponsored by anti?ta%

organiJations that indicated that wages did not constitute 8income9under the

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o Lawyers advice is generally not enough

air 2otice

• § 2.0!(3)(a): A defendant is not guilty of an offense

o () if she does not believe that her conduct is illegal, and

o (>) was 8not published or otherwise reasonably made

available9 to her before she violated the lawo &he code defense only applies if the statue was neither

 published nor otherwise made reasonably available to theactor before she committed the crime

&he code predates Lambert see above

$nder the MC, Lambert would be guilty because

the law was published and available to the citien regardless of the fact the prohibited conduct itselfwould not alert an actor to the need to investigatewhether there is a relevant published statue

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-%ception: cannot be held criminally responsible for social harm unless the

 prosecution proves beyond a responsible doubt that he is not a (doesn6t have to be8the9) but?for cause of the harm

must also have the mens rea and pro%imately cause the harm

• 8Causes9 vs 8conditions9

o conditions are things that are necessary for the crime but are common things -g not the

 physics of the situation !hat the did is what is usually loo.ed at

• confusing 8causation9 with mens rea9

o these are independents things

o causation without mens rea

eg has a minor argument with 5 5, upset about the argument, leaves the house,

and wal.s across the street As he does, he is struc. and .illed by an automobiledriven by 3

is an actual cause (8but?for9) cause because but for there argument 5 would

have never crossed the street or this reason actual cause serves only to eliminate candidates for

responsibilityD it does not resolve the matter of ultimate causal responsibility,which awaits pro%imate causation analysis

Second, and more immediately to the point, the facts do not suggest that  possessed a culpable state of mind ; any mens rea ; regarding 56s death&hus, this is a case of but?for causation without mens rea

o Mens rea without causation

, intending to .ill 5, shoots 5 barely nic.ing him Simultaneously, >,

independently and accidentally, shoots 5 in the heart 5 dies instantly Gere, intended to .ill 5, but did not cause the deathD thus, is not legally responsible for56s death > is the only potential candidate for homicide prosecution, and he mayalso be ac=uitted for lac. of mens rea

• Multiple Actual Causes

o Accelerating a result: /R

"nly about when the 5 died, if them made it happen faster than it would haveotherwise

o Concurrent sufficient causes: /

• MPC: § 2.03(1)(a)

o Applies the but?for rue &o be guilty of an offense, a person6s conduct must cause the

 prohibited result 8Cause9 is defined under the Code as 8an antecedent but for which the resultin =uestion would not have occurred9

o $nli.e common law, the MC treats 8but?for9 causation as the e%clusive meaning of

8causation9 in the criminal law &he code treats matter of 8pro%imate causation9 as issuesrelating instead to the actor6s culpability

o !hen culpability is not a re=uirement (felony?murder) the Code provides that causation 8is

not established unless the actual result is a probable conse=uence of the actor6s conduct9o A may not be convicted of felony?murder if the death was not a probable conse=uence of

his felonious conducto -g if attempted to rob a ban., and the ban. teller was accidently electrocutes pressing the

 burglar alarm switch, would not be liable for the death because the actual result ; death byelectrocution ; was not a probable conse=uence of robbing a ban.

G"M

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o the meaning is really not important

o ##$nless a statue modifies the common law by re=uiring proof of premeditation, a spur of the

moment .illing may constitute murder

• 8Malice9

o () &he intention to .ill a human being

o (>) the intention to inflict grievous bodily in1ury on another 

o (*) epraved heart murder: an e%tremely rec.less disregard for the value of human life

o () elony?murder: &he intention to commit a felony during the commission or attempted

commission of which death results

• 8ennsylvania Model9 ; &wo degrees ; (standard) Common la

o ennsylvania in + divided murder into two degrees

st degree? death penalty

>nd degree: lesser sentence was imposed

split manslaughter into voluntary and involuntary

o #&G

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An intentional illing  involves sub1ective fault: prosecutor must prove beyond

a reasonable doubt that the formed the actual intent to .ill another person,rather than simply, a reasonable person would have .new that the conductwould result in death

Gow is this proved thenE

• () "rdinary people intend the natural and proable conse=uences of

their actions

• (>) &he defendant is an ordinary person

• (*) &herefore, he intended the natural and proable conse=uence of his

actions

!hen the probable conse=uences of a 6s conduct is that another person will,

die the preceding rule allows the 1ury to infer the re=uiste specific intent -g if savagely beats 5 over the head with a baseball bat, which actions

cause 56s death, the prosecution may see. to prove that intended to .ill 5 by demonstrating to the 1ury (and emphasiJing in closing arguments) that the probable conse=uence of such a beating was 56s deathD therefore, in absenceof evidence that was no an ordinary person, the 1ury may infer that intended the natural and probable conse=uences of his conduct, ie 56s death

eadly?weapon: !hen a person .ills another with a deadly weapon, proof ofintent to .ill is strengthened further !hen someone uses a deadly weapondirected at a vital part of the human anatomy, an intention to .ill may properly be inferred

o 8!illful, eliberate, remeditated9 Hillings

&his is almost always murder in the first degree

#&here are different definitions of the offense

!illful: Although the term 8illful9 has various definitions in the criminal law, in this

contest it means, simply, 8a specific intent to ill 9 eliberate and premeditated: &here is disagreement here Some do away with there

meaning even though there still there "thers combine them into 1ust premeditation

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"ne side of the spectrum: 8 4o time is too short for a wic.ed man to frame in

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Also can be a lethal omission such as a parent, out of indifference, fails to

feed an infant for two wee.so istinguishing Murder from Manslaughter 

&he line is not clear because the definitions of 8rec.less9 (criminal negligence) and

8e%treme rec.lessness9 in common law are not clearly defined $sually stated as implied malice (depraved heart) needs 8the deliberate perpetration of 

a .nowingly dangerous act with7unconcern and indifference as to whether anyone is

harmed or not,9 or 8where the .illing was pro%imately caused by an act, the naturalconse=uences of which are dangerous to Bhuman life, which act was deliberately performed by a person who nows that his conduct endangers the life of another andwho acts with conscious disregard for life9

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too. out insurance on son and property, house was lit, son died

0ule: Any act .nown to be dangerous to life and li.ely in itself to cause death,

done for the purpose of committing a felony which casues death, is murder 

• in the chest during the

commission of a felony, and 5> dies years later from a heart attac. during a bac.yard bas.etball game, as the result of permanent damage to the heart produced by the originalwound

o #$nless there is an e%ception, the rule includes a homicide that occurs during the commission

of any felony,

eg Bcase

is guilty of murder is she attempts to steal 56s watch from 56s purse and a gun

concealed in it discharges, .illing 5o &he rule e%tends implicitly (and often e%pressly by statue) to accomplices in the commission

of felonies &herefore if S was an accomplice in any of the hypothesiJed felonies, he would beguilty of murder, without regard to his own state of mind relating to the death (for commonlaw) (See Accomplice)

o Some 1urisdictions say that there needs to be some foreseeability

See eople v illon: (CA) holding that a sentence of life imprisonment under the

felony?murder rule, based on the underlying felony of attempted robbery of amari1uana crop violated the state6s prohibition on cruel and unusual punishment)

o &ransferred

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-g An arsonist may burn down a house .nowing that the building is

 probably occupied, or a rapist may would the victim in order to overcomeresistance

-ven though the can be charged with these forms of malice aforethought murder,

the prosecution will often use felony?murder rule instead because the mens reare=uirement is not there

#elony?murder dispenses with the re=uirement that the gov6t show that the felon

intended to .ill or in1ure the victim grievously or that the felon was aware that hisconduct was highly dangerous to human life

Also if the felony is enumerated first?degree murder can be charged though

the felony?murder rule rather than second degree from the depraved heart ###All the prosecution must prove is that the d committed the felony and that the

death occurred during its commissiono

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5;s ;//lied6 ;//roac#: Many states determine the dangerousness of a felony by

considering 8the facts and the circumstances of the particular case to determine if suchfelony was inherently dangerous in the manner and circumstances in which it wascommitted9

See Gines v State: "ut hunting, mistoo. friend for a tur.ey, isa felon with a

firearm

• 0ule: A felony is inherently dangerous when it is dangerous per se or

 by its circumstances creates a foreseeable ris. of death (1udgedecided)

• "ur hunting, .new others were around, too. unsafe shot at dus.

• Gere the was found guilty

•  3ain approach

See eople v Stewart: (0

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Casual connection can often be easy to satisfy:

0ationale: 36s .illing is not in furtherance of the crime

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elony?murder can hae little or no deterrent effect when the shooter is a non?

felon, since the felon has no control over the actions of the innocent person(e%ception when they purposely use an innocent person to .ill eg telling himto go outside with fa.e gun)

See State v Canola: elons (,>,*) store owner (3) 3 and die > and

* convicted of felony murder 

• Agency theory: > and * only liable for 36s death, not s

• ro%imate Cause: > and * liable for both deaths

• Statue could support both but ma1ority choose agency theory

• Concurrence: pro%imate cause theory

o -%ception: death of co?felon 1ustifiable homicide

o Hey: Convince friend to run outside with water gun after

telling police 1ustifiable homicide can be basis for murder

conviction &he 8ro%imate Causation9 Approach (minority of states)

A felon is liable for any death that is the pro%imate result of the felony,

whether the shooter is a felon or a third party 0ationale: Kustified on the ground that 8when a felon6s attempt to commit a

forcible felony sets in motion a chain of events which were or should have been within his contemplation when the motion was initiated, he should beheld responsible for any death which by direct and almost inevitable se=uenceresults from the initial criminal act

&he result will depend on the particular facts of the case, and the matter

ultimately is one for the 1ury to decide

Limited 5ersion

• Should a court that permits the operation of the felony?murder rule

when the shooter is a non?felon ta.e into consideration who is shot E

• 6s felony murder responsibilityE

• ennsylvania once drew a distinction: &he rule was that a felony (>)

could be convicted of murder in a bystander6s (56s) death, but not asto the death of a co?felon ()

• 0ationale: resumably because when a non?felon .ills a felon this

homicide is 1ustifiable, whereas the death of a bystander accidentlyshot by a non?felon is e%cusable homicide

• 0easoning is flawed because the felone who would otherwise be

convicted wrongfully assisted in reating the consition that hade theco?felons death 1ustifiable

• Since changed to the agency rule

 2-- M"0- "0-0 &" &G- -L"24?M$0-0 0$L- 

Pistinguishing elony?Murder rom "ther &heories (&he 8rovocative Act octrine9)

o  6ven in an agency urisdiction, a felon may be held responsible for death of another at the

hands of a third party if the basis for the charge is no felony?murder, but instead is founded onwhat is sometimes termed 8provocative act9 doctrine, which is simply a form of rec.less(depraved?heart) homicide

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o -g in the hypo, 6s conduct ; pointing a loaded gun at 3, threatening 36s life, and shooting

over 36s head ; arguably manifested an e%treme indifference to the value of human life

Conse=uently, if had unintentionally .illed 3 by her provocative actions, would

have been guilty of murder, not simply on felony?murder grounds, but also on the basis of depraved?heart murder And, > would have been guilty of that murder aswell, under traditional complicity principles Since 6s rec.less acts would have beenimputed to her 

o  2ew wor.ing hypo: Suppose that 6s rec.less and provocative behavior had caused 3 to firea gun in self?defense, and further suppose that a bullet from 36s weapon had accidently struc.and .illed bystander 5 instead

 2ow the provocative act doctrine applies: "n these facts, since rec.lessly caused 3

to fire the weapon that .illed 5, would be guilty of rec.less murder ; her provocative acts pro%imately caused the result ; and > would be held responsible for56s death, since 6s rec.less conduct may be imputed to >, her accomplice

o "n the other hand, suppose that 36s aim had been better, and he had shot and .illed , as

intended, in self?defense 2o, >, may not  be convicted of 6s death at 36s hands, because6s malicious (rec.less) conduct did not  result in the unlawful .illing of another  human being, but rather in his own 1ustifiable homicide &herefore, in the case of f6s death, there isno criminal homicide to impute to >

  Manslaughter 

• 8An unlawful .illing of a human being by another human being without malice aforethought9

• MC puts it 8a homicide without malice aforethought on the one hand and without 1ustification or

e%cuse on the other9

• &ypes

o () =oluntary manslau'#ter: ) n%oluntary manslau'#ter: $nintentional .illing that is the result of 8an act, lawful itself,

 but Bdone in an unlawful manner, and without due causation and circumspection9 a homicidedone in a criminally negligent manner 

o (*) ) &he passion must have been the result of ade=uate provocation (ob1ective)D

(*) &he actor must not have had a reasonable opportunity to cool off (sub1ectiveEEEE)D

and () &here must be a causal lin. between the provocation, the passion, and the

homicide (we didn6t tal. about this in case e%pressly)o State of assion

must be in a state of passion at the moment  of the homicide

7

o Ade=uate rovocation

Common Law Categories

8An amount of provocation as would be e%cited by the circumstances in the

mind of a reasonable man9 &hey have been enumerated in common law 1urisdiction that follow the rule

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• ()Aggravated assault or battery (>) mutual combat (*) Commission

of a serious crime against a close relative of the defendant ()

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o 0ule: !as disturbedIobscured by passion which might

render ordinary men liable to act rashlyIwithout duedeliberation or reflection and from passion rather than 1udgment

o Cooling "ff: Should go to 1ury to determine whether the time

was reasonable under all circumstances of the particular caseo Kury should consider the evidence (indicates provocation)

o 5iewed as an e%cuse: provocation valid regardless of whether true

o issent 1ustification: not valid unless facts are true

o  2o reason to rela% rule (less severe punishment now, not

death)

• See State v ittman: > year old span.ed by grandfather, returned in

N mins shot him

• 0ule: @uardian legally entitled to paddle him no provocation

Adultery: s who invo.e the provocation defense overwhelmingly male,

victims overwhelmingly female

• 0ule: Must be legally married and must see se%ual intercourse not

some other conduct• See State v Simonovich: (no provocation): ! admitted to past

adultery, taunted she would continue

• See ennis v State:

o saw ! with dress raised, embrace with another Shot the

mano 0ule: provocation only if he saw se%ual intercourse

• See State v &urner (no provocation): shot her unfaithful

husbandIpartner (not legally married)

o Cooling "ff &ime

&he defense involves sudden heat of passion &he defense is unavailable if a

reasonable person would have cooled off in the time that elapsed between the provocation and the fatal act

Gistorically, this element is strictly applied &he homicidal act had to occur 8in the

first transport of passion9 As a result, the defense was unavailable to a personsub1ected, over an e%tended period of time, to multiple minor provocative acts thatcumulatively cause the individual to boil overD

Li.ewise, the provocation defense could not successfully be asserted by one who

 brooded over the provocation before acting See State v @ounagias (!ash)5 sodomiJed @ while the latter was unconscious or

three wee.s, 5 ridiculed @, by informing others of what had place inally, @ couldta.e no more of it, and he .illed 5 in rage

Court held that @ was not entitled to claim provocation, as too much time had

elapsed between the original provocative act and the homicide Ade=uate cooling off period

See $S v Fordeau%: All?day drin.ing party learned that 5 had raped his mother >N

years ago, beat 5 up, then returned and slit his throat 0evelation of finding out about the rape had occurred much earlier in the day,

.illed after beating

 2o rational basis for 1ury to find heat of passion

See Commonwealth v LeClair: a man had suspected his wife6s infidelity for a couple

of wee.s, once confirmed, strangled her rior suspicions provided ade=uate cooling off time

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See eople v Ferry: (sufficient to go to 1ury)

waited for victim for >N hours in apartment before .illing her 

Kury could find heat of passion in smoldering passion aggravated by passing

time As with the issue of ade=uate provocation, the 8cooling off9 element of the defense,

which used to be resolved by the 1udge, is typically left to the 1ury today

o Casual Connection

-ven if a person is ade=uately provo.ed, the provocation defense it unavailable to a

whose motivation for the homicide is causally unrelated to the provocation

o artial Kustification or artial -%cuse

oes the provocation as a partial 1ustification or a partial e%cuse for a homicide, or is

it a combination of both conceptsE

artial 1ustification: o we say that a heat?of?passion .illing is a less serious offense

than an ordinary homicide because the decedent (partially) deserved to die because ofthe provocation

&he provocation made the provo.er 1ustifiably wrong and deserving of

 punishment, but .illing was too far "r instead, do we partially e%cuse the .iller ; although the .illing

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"r, if a parent .nowingly ignores her child6s need for food or medical care to survive,

the ensuing death may constitute murder

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o &his is the analogue to the felony?murder rule and, as such, is often termed the 8misdemeanor?

manslaughter9 rule AHA 8$nlawful?act manslaughter9

o 0ule: A misdemeanor resulting in death can provide a basis for an involuntary manslaughter

conviction without proof of rec.lessness or negligence

0e=uires pro%imate cause See Commonwealth v !illiams (failure to renew license,

no casual connection to accident)o Some 1urisidctions use a mala in se and mala prohibita distinction

o 7

o MC has nothing similar 

 

Criminal omicide: MPC

 

(): A criminal homicide constitutes murder when the actor un1ustifiably,

ine%cusably, and in the absence of mitigating circumstance, .ills another () urposely or .nowinglyD or 

(>) 0ec.lessly, under circumstances manifesting e%treme indifference to the value of

human lifeo $sing common law terminology, a homicide is murder (defenses aside) if the actor

intentionally ta.es a life, or if he acts with e%treme rec.lessness (ie depraved?heart murder)o &here are no degrees of murder under the MC

o Gowever, the offense of murder is graded as a felony of the first degree, which originally

meant under the MC that the offense carried a minimum sentence of from to N yearsimprisonment, and a ma%imum sentence of death or life imprisonment

o #MC definition of murder abandons the common law element of malice aforethought As

such, the common law mental state of 8intent to commit grievous bodily in1ury9 ; on form ofmalice ; has no independent significance under the MC

Any case involving this state of mind would constitute e%treme rec.lessness )ie

murder) or a lesser form of unintentional homicide (ie rec.less manslaughter ornegligent homicide

o elony?Murder Approach

(Against the principle but implemented anyways)

' >N>()(b): MC provides that e%treme rec.lessness (and this murder) is non?

conclusively presumed if the homicide occurs while the actor is engaged in, or is anaccomplice in, the commission or attempted commission of, or flight from, one of thedangerous felonies specified in the statue

-g $nder this provision, if unintentionally .ills 5 during the commission

of a robbery, the 1ury should be instructed that it may, but not need, infere%treme rec.lessness from commission of the crime

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• Manslaughter (MC)

o N*(b))

A person who would be guilty of murder because he purposely or .nowingly too. a

human life, or because he .illed a person rec.lessly under circumstances manifestingan e%treme indifference to the value of human life, is guilty of the lesser offense ofmanslaughter if he .illed the victim while suffering from an 8e%treme mental oremotional disturbance9 (-M-) for which there is 8reasonable e%planation ore%cuse9

&he reasonableness of the e%planation or e%cuse regarding the -M- is

8determined from the viewpoint of a person in the actor6s situation under thecircumstances as he believes them to be 9

' >(>): MC provides that the defendant has the burden of producing evidence

regarding this affirmative defense, after which the prosecution must disprove thedefense beyond a reasonable doubt

Gowever, most states re=uire the to prove the affirmative defense by a

 preponderance of the evidence "ne sub1ective and one ob1ective component

Sub1ective Component

&he -M- ; the 8e%treme mental or emotional disturbance9

&his condition need not involve 8a state of mind so far from the norm as to be

characteristic of a mental illness9

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Mental ?isorder:

• 2tate v. &limas, p R (psychiatric evidence irrelevant I inadmissible)

•  'eople v. 2teele, p R (inadmissible that Q was traumatiJed 5ietnam

veteran, snapped at hearing helicopter) Partial ndi%iduali@ation: (-nglish Style)

•  '' v. /amplin, p R (distinguish characteristics)

o

Q .illed older man ; se%ual abuse and tauntingo Consider Q6s individual characteristics that related to the

gravity of the provocation go to 1ury

o Consider the self?control of a reasonable person of li.e age

and se% as Qo #Comparison to Common Law 8Geat?of?assion9

&he -M- manslaughter provision is much broader than the common law

 provocation defense irst, a specific provocative act is not re=uired to trigger the-M- defense All that must be proven is that the homicide occurred as the result ofan -M- for which there is a reasonable e%planation of e%cuse

-g if a psychiatrist testifies that .illed 5, his brother, under the influence

of -M-, brought on by a combination of facets, including 8child custody

 problems, the inability to maintain a recently purchased home and anoverwhelming fear of his brother,9 a 1ury instruction on manslaughter iswarranted, although 5 did nothing to provo.e the incident

See State v -lliott: had been scared of his brother for years and one day

showed up at his house and .illed him

• Court found that the -- instruction must be given because e%treme

emotional disturbance does not need hot blood or provocation, butrather significant mental trauma that caused the to brood for a long period of time and then react violently, seemingly without provocation

See State v !hite: ivorcee couldn\t ma.e house payments because husband

was not paying his child support and other financial things ? she ran over him

twice with her care upon seeing him at his place of wor. • Supreme court allowed manslaughter because the -- defense was

 based on ]a significant mental trauma that has affected the defendant\smind for a substantial period of time, simmering in the un.nowingsubconscious and then ine%plicably coming to the fore]

• very broad interpretation of the e%treme emotional disturbance

doctrine Second, even if there is provocation, it need not involve 8an in1ury, affront, or other

 provocative act perpetrated upon Bthe defendant by the decedent9 &herefore the person may successfully claim the defense if he simply believes although incorrectly,that the decedent was responsible for the affront, or even if there was a provocationand the defendant 8stri.es out in a blinding rage and .ills an innocent bystander9

&hird, even if the decedent provo.ed the incident, it need not fall within any fi%ed

category of provocationsD and, contrary to the common law, words alone can warranta manslaughter instruction

-g if .ills 5 as a result of -M-, a 1ury instruction on manslaughter is

warranted (although, of course, a verdict  of manslaughter is not re=uired) ifthe basis for the -M- was that

• () 5 derided because he was unable to have an erection when he

attempted to have intercourse with her 

• (>) 5 too. 6s reserved par.ing space in an apartment building, or 

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Significance: () in a prosecution for a crime of intent (eg rape), assuming

appropriate facts, a 1ury may instead return a guilty verdict for the lesseroffense of an attempt to commit the substantive crime (eg attempted rape)Dand

(>) in every case where an attempt is charged, proof of the commission of the

target offense, he may not  be convicted of both it and the criminal attempt

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o ifference: puts sugar in spouse 56s coffee

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-g if blindfolds himself and fires a loaded pistol into a room that he .new

is occupied, he may be convicted of murder if someone is .illed Such a.illing although unintentional, is malicious (mens rea of murder), because itevinces a rec.less disregard for the value of human life

Gowever, if 6s rec.less act does not  .ill anyone in the room, almost all

 1urisdictions would rule that he is not guilty of attempted murder  (although hecould be guilty of a statutory offense, such as rec.less endangerment)

purposely aimed and fired the gun ; he intentionally performed the acts that brought him close to ta.ing human life ; but he lac.ed the specific intent to.ill anyone in the room

See &hac.er v Commonwealth: shooting into a tent without specific intent to

.ill does not constitute attempted murder  Colorado is the only 1urisdiction that re=uires the same mens rea as the

underlying crime

• See eople v &homas: recogniJing the offense of attempted rec.less

manslaughter, and reinstating a conviction for this offense in a case inwhich & fired a gun three times in 56s direction, hitting him twiceaccidently

•

Converts rec.less behavior into attempted involuntary manslaughter o 0ationale of

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-g Suppose that derives her car blindfolded, as a practical 1o.e &his

conduct, it may be assumed, would constitute rec.less endangerment ofothers &herefore, if enters her car, blindfolds herself, turns on the ignition,and is arrested at that moment, she should be convicted of attempted rec.lessendangerment: she has intentionally committed the actus reus of the attempt by purposely blindfolding herself and turning on the car ignitionD and she hasthe specific intent to drive the car on the road in a manner that a 1ury could

conclude is rec.lesso Attendant Circumstances

Suppose that , believing that 5 is / years of age, has se%ual intercourse with her main categories of tests: &hose that focus on how much remains to be done before the crime

is committedD and those that consider how much has already occurredo &est common factors

() !hether the act in =uestion appears to be dangerously close to causing tangible

harm, so that police intervention cannot realistically be delayed

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(>) &he seriousness of the threatened harm, ie, 8the more serious the crime

attempted7, the further bac. in the series of acts leading up to the consummatedcrime should the criminal law reach in holding the defendant guilty for an attemptD

(*)&he strength of the evidence of the actor6s mens rea, ie the more clearly the intent

to commit the offense is proven, the less pro%imate the acts need to be toconsummation of the offense

o rarely do states adopted a single test as the e%clusive basis for determining when an attempt

has occurredD and the names of the tests (if indeed, they are provided) and their descriptionsvary by 1urisdiction

o 8Last Act9 &est

Some courts state that a criminal attempt only occurred when the person performed all

of the acts that he believed were necessary to commit the target offense Applying this standard, an attempted murder?by?shooting does not occur until d pulls

the trigger of the gunD an attempted theft of a museum painting does not occur until  begins to remove the property from the wallD and an attempted arson does not occurunless sets fire to the dwelling that he hopes to destroy

&here is general agreement that an attempt occurs at least by the time of the last act, 

 but not 1urisdiction re"uires that it reach this stage on all occasions As a practical matter, little commend the last?act standard, e%cept for its bright?line

nature

Gurts the police because it would be almost impossible to prevent commission

of the substantive offenseo 8hysical ro%imity9 &est

Some courts state that while ac actor6s conduct need not reach the last act, it must be

 pro%imate to the competed crime, in that 8it must approach sufficiently near to it tostand either as the first or some subse=uent step in a direct movement  towards thecommission of the offense after the preparations are made9

"0, 8

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See eople v Acosta: applying the dangerous pro%imity standard, one state court has

held that a person who, with intent to possess cocaine, orders contraband from asupplier, meets a courter at her home, e%amines the good, but re1ects them on =ualitygrounds, is guilty of attempted possession of a controlled substance

See Mcuirter v State: (pro%imity test, attempted rape)

found guilty of attempted rape, sheriff6s testimony is only evidence

• Confession to police officer is sufficient to go tot 1ury

roblems:

Fenign conduct can be the basis for the pro%imity test

Gard to distinguish actual intentionIpurpose

Convicted on testimony of other people alone

&his is not good for unpopular groups

o 8

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Gowever, suppose that we change the facts slightly Suppose that when fires the

gun, 5 is in the bed, but is already dead from a coincidental heart attac. &hat is ,5 isa corpse, rather than a 8human being,9 as defined by homicide law

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"ffers a bribe to a 81uror9 who is not a 1uror 

&ries to hunt deer out of season by shooting a stuffed animal

Shoots a corpse believing that it is alive

Shoots at a tree stump believing that it is a human

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() when causing a particular result is an element of the crime, does or omits to do

anything with the purpose of causing or with the belief that it will cause such resultwithout further conduct on his partD or 

(c) purposely does or omits to do anything that, under the circumstances as he

 believes them to be, is an act or omission constituting a substantial step in a course ofconduct planned to culminate in his commission of the crime

o ###uestions:

oes the case involve a complete or incomplete attemptE

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• Actus 0eus (what the actor has already done)(parity to circumstances)

o Significant departure from common law, the MC shifts the focus of attempt law from what

remains to be done ie, the actor6s pro%imity to consummation of the offense, to what theactor has already done

o

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o Attempt to Aid (See Complicity)

Suppose that furnishes a gun to 3 so that 3 can .ill 5 furnishes a gun to 3> so that 3> can .ill 5> 3>, however does not  

attempt to commit the offense is not guilty of attempted murder>, in turn, is not guilty of aiding and abetting an attempted murder, since %>

committed no such offense guilty of any offenseE $nder common law, not guilty of any offense

$nder MC 'ON(*), a person, may be convicted of a criminal attempt,

although a crime was neither committed nor attempted by another , if:

• () &he purpose of her conduct is to aid another in the commission of

the offenseD and

• (>) Such assistance would  have made her an accomplice in the

commission of the crime under the Code6s complicity statue if theoffense had been committed or attempted

Gere > would be guilty under the Code of attempted murder (conceptually,

she is guilty of attempted aiding and abetting a murder) Although 3> did not

attempt to commit the murder > is guilty because, if 3> had  attempted thecrime, > would have been an accomplice in the attempt, but furnishing thegun for the purpose of homicide

0ationale: A person who attempts to aid in the commission of an offense is as

dangerous as one who successfully aids in its commission or attemptedcommission &herefore there should be punishment

• efenses:

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o -ven if 5 was already dead, if thought he was alive when

he shot him then he is guilty of attempted murder 

Suppose that in either these e%amples, the is arrested prior to completion of the last

act, but after a substantial step or e%ample, supposed prepares to receive the property but is arrested immediately before she ta.es possessionD or suppose that >is arrested with the gun aimed at the corpse Fecause further actions were intended inthese cases (9)(c) applies

Still, and > will be convicted because they performed acts that, 8underthe circumstances as Bthey believedBd them to be9 ; the property was stolen,5 was alive ; constituted 8a substantial step in a course of conduct planned toculminate in7commission of the crimeBs9

o ##()(c): "nly in these cases, ie, in cases of incomplete attempts, does the Code re=uire that

the actor6s conduct be strongly corroborative of her criminal purpose the typical impossibility case, however, involves a completed  attempt, in which event

subsection ()(a) or ()(b) applies

#

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(>) Assistance by psychological influence

(*) Assistance by omission (assuming omitter has a duty to act)

o hysical contact

-g S may assist by furnishing him with an instrumentality to commit an offense,

8causing9 the scene in advance, loc.ing the door to .eep an assault victim fromescaping, or driving a getaway car from the scene of the crime

o sychological

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-g S is not an accomplice if he utters words of encouragement to who fails

to hear them, or if S opens a window to allow to enter a dwellingunlawfully, but (unaware of the open window) enters through a door 

"nce it is determined that S assisted , however, the degree of aid or influence

 provided is immaterial Any aid, no matter how trivial , suffices -g S may be deemed ac accomplice of if, acting with the re=uite mens rea,

he:

• Applauds 6s criminal activities

o See !ilco% v Keffrey (+O)

o owned a magaJine and paid for a tic.et to a musician6s

concert, showed up at the airport when the Musician arrived,and wrote a positive reviewD musician violated animmigration law prohibiting him from wor.ing in the $H wIoa proper visaD 2o evidence that applauded during the performanceD convicted of aiding and abetting the violationof the alien employment law

Court upheld conviction and said that did not have

to be the but for cause of the offenseWenough that hewas present and encouraged the underlying crime

• Golds 6s child while commits the crime

• repares food for to give sustenance during the planning or

commission of the crime

• rovides moral support by as.ing to bring home bananas from the

grocery store that plans to rob Causation

A secondary party is accountable for the conduct of the primary party even if

his assistance was causally unnecessary to the commission of the offense &hat is, S is guilty of an offense as an accomplice even if, but for his

assistance, would have committed the offense anyway

  See StateIAttorney @eneral v &ally, Kudge

• Q sent telegram instructing operator to ignore telegram warning 0ossthat he was being chased by armed men

• Rule: aiding and abetting need not be but?for cause of the

commission of the crime

• Hey: id Q succeed in aiding or abettingE vs !as the crime

committedE

• Mens 0ea

o

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• Ge wasn\t charged with aiding the purchase of pot, only the sale

Court says there is no complicity, because there was no interaction btwI and the perpetrator &his is bad

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Absolutely needs to guilty state of mind as well as the encouragement to be

guilty Misc Accountability

-g helping someone escape prison, helping with suicide

Accomplice accountability

"nly counts for the specific crime

&he relation of parties in the commission of a specific offense

o  2ature of an accomplice

S is an accomplice of in the commission of an offense if, with the re=uisite mens

rea, he Solicits to commit the offenseD > aids, agrees to aid, or attempts to aid inthe planning or commission of the offenseD or * has a legal duty to prevent thecommission of the offense, but ma.es no effort to do so

Accomplice liability by solicitation

Accomplice liability by aiding

0eplaces al the common law terms with 8aids9

Soliciting a crime is not a form of aid

&he distinction can be significant Accomplice liability by agreeing to aid

S is an accomplice of if he agrees to aid in the planning or commission of

an offense &his re=uirement is met: eg if S tells that he will help to planthe commission of the offense, or if he agrees to provide with aninstrumentality for the commission of the crime, even if 2 does not fulfill his promise

&his form of liability is based on aiding rather than 8soliciting9 S is not an

accomplice of merely because he agrees to solicit the commission of anoffense but fails to do so

##iffers from common law

•

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• -g if S opens a window so that may enter to commit a felony

inside the building, S is an accomplice in the burglary, even if enters by the door

•

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o Code re1ects the argument that complicity liability should

apply to one who .nowingly, but not purposely, facilitates thecommission of an offense

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 2atural?and?probable conse=uencesD

• #no common law natural and probable conse=uences doctrine

• eg suppose that S aids NR(R) states that unless the code e%pressly provides to the contrary, a person

is not an accomplice in the commission of an offense if any one of threecircumstance e%ist

• S may not be convicted as an accomplice if he is the victim of the

offense eg the parent of a .idnapped child who pats a ransom maynot be convicted as an accomplice in the .idnapping of his own child

•

S is not an accomplice in the commission of a crime if his conduct is8inevitably incident9 to the commission of the offense -g a purchaser of narcotics is not an accomplice in the commission of thesale or delivery of the controlled substance to himself

• &hird, the code establishes a defense of abandonment A person is not

an accomplice