I. General Framework of Criminal Law

Criminal Law Table of Contents

A. Void for Vagueness…………………………………………………….1 B. Utilitarian……………………………………………………………….1 C. Retributive………………………………………………………………2 D. Actus Reus……………………………………………………………...2 E. Voluntariness…………………………………………………………...2-3 F. Mens Rea……………………………………………………………….3-5 G. Law of Mistake…………………………………………………………5-7 H. Intoxication and Capacity………………………………………………7-8 I. Causation……………………………………………………………….8-9

II. Specific Crimes

A. Homicide……………………………………………………………….9-10 B. Provocation…………………………………………………………….10-12 C. Involuntary Manslaughter……………………………………………...12-13 D. Felony Murder Rule……………………………………………………13-14 E. Death Penalty…………………………………………………………..14-15 F. Rape…………………………………………………………………….15-17 G. Theft Crimes……………………………………………………………17-18

III. Defenses

A. Defenses Generally……………………………………………………..19 B. Self Defense…………………………………………………………….19-21 C. Necessity………………………………………………………………..21-22 D. Duress…………………………………………………………………..22-23 E. Insanity…………………………………………………………………23-25

IV. Attempt

A. Generally……………………………………………………………….25 B. Policy/Theory…………………………………………………………..25-26 C. Impossibility……………………………………………………………26 D. Impossibility Brain Teaser……………………………………………..26-27 E. MPC on Attempt……………………………………………………….27-29

V. Group Crimes

A. Solicitation……………………………………………………………..29-30 B. Accomplice Liability…………………………………………………..30-31 C. Conspiracy……………………………………………………………..31-33

2 Criminal Law Outline Prof. Kerr Michael Forman

I. General Framework of Criminal Law

A. Void for Vagueness Doctrine  Void for Vagueness is a two pronged test: . A law is void if it leaves the public uncertain as to the conduct it prohibits . A law is void if it authorizes or encourages arbitrary or discriminatory enforcement  Chicago v. Morales – loitering law for criminal gang members found to be vague because the it is uncertain what the criminal conduct is and it leads police to act arbitrarily when enforcing it  Papchristou v. Jacksonville – the city law made it a crime to be a vagrant; law struck down because it gave police complete discretion to determine who was a vagrant

B. Utilitarian Theories on Punishment  Theories looking toward preventing future crimes  Theories help to make policy arguments on whether laws are good or bad  Three types pf util. arguments . Deterrence: criminals will perform a cost-benefit analysis; Does the cost of punishment outweigh the benefit of the crime? . Incapacitation: When someone is in jail, he cannot commit a crime; assumes repeat offenders who are not replaced by “new recruits” and who are not encouraged to commit more crimes on release from jail . Rehabilitation: criminals can be treated and cured from their diseases during their punishment; applies most to drug and alcohol abuse  Specific deterrence refers to the effect on the person prosecuted  General deterrence refers to the effect on the people who may commit the crime in the future  Prosecuting copyright infringement (i.e. Napster) is a good way to cause a high general deterrence value  Incapacitation is simple but doesn’t always work because there is usually someone ready to replace a criminal who is caught

3 C. Retributive Theory on Punishment  Main idea behind retribution is just dessert, i.e. people should get what they deserve  Someone who has done wrong should suffer in proportion to his wrongdoing  A criminal conviction shows a general condemnation of the criminal actions by the state  Retributive punishments bring moral values back to balance  A criminal may value himself over the rest of society; punishment balances this moral value

D. Actus Reus  Every crime must contain an act  Policy reasons for act requirement . Can’t be punished for bad thoughts and no actions . Mere thoughts don’t cause harm . State can’t punish thought crimes; State can’t prove thoughts  Robinson v. California – cannot be punished for having the status of being a drug addict; the law in the case punishes for having the desire to commit a crime, therefore there is no act  Proctor v. State – man was prosecuted for owning a house with an intent to distribute liquor; cannot simply punish for owning a house, there must be the act of distributing liquor before punishment is given;  There is a difference between ownership and possession; possession is a proactive, knowing concept, where ownership is not always; you can’t deter ownership, but you can deter possession  Omissions: if you have a legal duty to do something, knowing not performing that duty can substitute for an act  There are 4 situations where an omission would be criminal: . Statute imposes a duty . One stands in a certain status relationship to another . One has assumed a contractual duty to care for . One has voluntarily assumed control and prevented others from caring for the person  Act requirement is punishing people for conscious choices and decisions, whether those choices result in an act or in the omission of an act

E. Voluntariness as an Aspect of Actus Reus  Act must be voluntary  Person cannot be held liable for something he cannot control

4  People v. Newton – def. brought a gun on a plane from the Bahamas to Luxembourg; the flight was interrupted and landed in NY; he was arrested and convicted under NY law; court reversed conviction because def. did not subject himself to criminal liability by virtue of a voluntary act  Martin v. State – no voluntary act because Martin was brought against his will to public property by police; Martin was drunk, but he was not voluntarily on public property  People v. Grant – def. assaults a police officer at a bar; he had a grand mal seizure in jail, he had been suffering from psychomotor epilepsy when the crime took place. For an act to be considered voluntary, A jury not only has to determine whether a person has the capacity to appreciate the criminal liability of his conduct or to conform his conduct to be in compliance with the law, BUT ALSO they must determine whether someone who has this capacity has BEHAVED AUTOMATICALLY.  If person acts involuntarily but chooses to drink beforehand and knows drinking can cause the condition, the he will be held liable for his actions  Man who knows he has seizures and drives a car anyways deserves punishment for a crime he commits because he is knowingly putting himself in a dangerous situation by driving  In terms of utilitarian theory, you cannot deter an involuntary act because the person has no control over it  While you cannot deter an involuntary act, the threat of punishment can encourage a person to alter their conduct (i.e. take medication, not drive a car, etc.)  In terms of retributive theory, criminal punishment should only be imposed on those who act as a result of their choice  MPC § 2.01 discusses voluntary acts: . Involuntary acts are: convulsions, sleepwalking, conduct during hypnosis, etc. . Omissions can be voluntary acts if there was a duty and a person knowingly failed to perform duty . Defines possession as a voluntary act, but says that person has to have control of the item for a long enough time to terminate possession

F. Mens Rea  Every element of a criminal offense is accompanied by a required mental state  Common law had two different categories: general and specific intent crimes  There are three types of elements: . Conduct: act of the person

5 . Attendant circumstances: surrounding description of the world which must be met . Result: what happens because of the crime; only some crimes have results, like murder, rape, etc.  Crime = Element 1(with mental state) + Element 2(with mental state) + …  Four different mental states according to the MPC: . Purpose: desire to engage in specified conduct . Knowingly: person is aware that it is practically certain that his conduct will cause result; willful blindness is equivalent to blindness . Recklessly: person consciously disregards substantial and unjustifiable risk that result will occur; gross deviation from standard of conduct . Negligently: person should be aware of substantial and unjustifiable risk that result will occur; gross deviation from standard of conduct; failure to live up to the standard of a reasonable person

Mental State Conduct Circumstances Result

Purposely Person’s conscious Person is aware of Person’s conscious object is to engage their existence, or object is to cause in conduct person hopes or such a result believes that they exist Knowingly Person is aware that Person is aware of Person is aware that his conduct is of that circumstances it is practically nature certain that his conduct will cause result Recklessly Not defined Person consciously Person consciously disregards disregards substantial and substantial and unjustifiable risk unjustifiable risk that circumstances that result will exist, gross occur, gross deviation from deviation from standard of conduct standard of conduct Negligently Not defined Person should be Person should be aware of substantial aware of substantial and unjustifiable and unjustifiable risk risk that that result will circumstances exist, occur, gross gross deviation from deviation from standard of conduct standard of conduct

6  Strict Liability: no mental state required for punishment  Strict liability is premised on utilitarian grounds; society is punishing people who are morally not blameworthy in order to more effectively deter socially dangerous conduct  MPC rejects the idea that there can be strict liability crimes  Purpose does not care about probability; even if someone threatens to do something and it is not possible, he can still have purpose  Recklessness is the default mens rea; if only one mens rea is stated for a statue, it applies for all elements  Regina v. Faulkner – def. had none of the mental states associated with the crime of arson when he accidentally set fire to ship; therefore he cannot be guilty of setting ship on fire because he was negligent and the crime required an intent  Retributive theory says that a man who has the required mental state is putting himself above others and the law and needs to be punished  US v. Balint – crime was selling drugs without filling out proper IRS forms; def. claims that he did not know the substance he was selling contained drugs; court said that he could be punished even though he had no knowledge because there is a burden on people selling drugs to protect the general public  The Balint court used a policy argument from Congress that said that the injustice of an innocent buyer buying the drugs is worse than punishing the innocent seller  People v. Ryan – def. did not know weight of mushrooms, therefore did not have associated knowing mens rea that element of the crime; gov. made intentionalist policy argument that the legislature did not mean for this when it made statue; court lets him off because of lack of mens rea for the element of weight

G. Law of Mistake  Question raised: defendant does not know about something, is that a valid defense?  All mistake claims are claims of a lack of mens rea  Three different categories . Mistake of fact: focused on associated mental states regarding elements; defendant has different idea about an element . Mistake of non-governing law: same as fact, just when element is legal issue; when the legislature has made a legal issue a part of the crime . Mistake of governing law: defendant has no idea that elements add up to a crime; did not know actions constituted a crime

7  Regina v. Prince - court attached strict liability to element of age in statutory rape-like cases; no mistake defense could be made in terms of age  Most states attach strict liability to the element of age  Public policy and utilitarian theory point towards protecting children  People v. Bray – Bray never knows if he was a felon, so he is lacking the mens rea for being a felon in possession of a firearm; the felon element has a default reckless mens rea; Bray was not reckless because his conduct was not a gross deviation of the standard of conduct of a law-abiding person; this is an example of a mistake of non-governing law because a legal issue (i.e. being a felon) is part of the crime  US v. Baker – defense was that Baker did not know that elements plus mental states added up to a crime; court said that ignorance of the law is not a valid defense; you can’t deter someone who doesn’t know he commits a crime, but you will make him learn what the law is  Reliance on lawyer’s or prosecutor’s advice is not an official defense  Cheek v. US – def. honest believed that he did not need to pay fed. income tax; in terms of fed. tax law, ignorance of law is a valid defense for willfulness; Willfulness requires that the person knew the duty and willfully violated it.  In Cheek, Congress’ use of the word willfully was construed to require a purposeful or knowingly mental state to the crime. At trial, the judge incorrectly instructed the jury that an honest but unreasonable mistake as to the legality of his conduct is not a defense. By doing this, the judge was attaching a “negligent” mental state to the defense.  In Cheek, the willfulness mens rea created another element of the crime; since this element was not met, Cheek did not commit a crime  In Baker, the willfulness mens rea was not part of the crime, so there did not need to be willfulness to be convicted of the crime  Supreme Court said that Constitutional crimes have a willfulness mens rea, while statutory crimes do not have a willfulness mens rea  Reliance on false information provided by a lawyer, or even a government prosecutor, is not allowed as a mistake defense for criminal conduct  MPC § 2.04 Ignorance and Mistake 1. Section 2.04(1)(a) lays out the general rule that questions of mistake of fact or non-governing law should be evaluated based on whether the mistakes negate the mental state required by the offense.

8 2. Section 2.04(1)(b) takes into account the possibility that the legislature may explicitly make the mistake of law or fact a defense (as in Cheek), and allows such a defense in these cases. 3. Section 2.04(2) says that if the facts the way the D thought them to be would have constituted a lesser crime than the more serious crime which he actually committed, he can still be convicted of the more serious crime, but his punishment should be that of the lesser crime. 4. Section 2.04(3) deals with mistake of governing law. It provides a default rule akin to Baker – no mistake of governing law – with two exceptions. a. Section 2.04(3)(a) says if a statute has not been made available or published, it excuses a mistake of governing law. b. Section 2.04(3)(b) carves out an exception for reasonable reliance upon an official statement of law, such as a statute or judicial opinion, that was later found to be invalid or erroneous

H. Intoxication and Capacity for Mens Rea  Intoxication is a question of what the jury gets to hear about the defendant’s incapacity for mens rea due to alcohol or other mental defects  Hendershott v. People – def. claims he has brain dysfunction and he lacked mens rea; this is different than People v. Grant because Grant claimed he did not commit a voluntary act  Hendershott said he did not have the mental state to recklessly cause harm to his girlfriend; court ruled that since prosecution gets to prove mens rea, def. should have opportunity to defend his claim of a lack on mens rea; MPC supports this, saying that any evidence relevant to mens rea should be allowed  MPC §4.02(1) says evidence that the def. suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did or did not have a state of mind which is an element of the offense  State v. Cameron – voluntary intoxication can be used as a defense to purpose or intent crimes; court found that Cameron did not drink enough to make her incapable of the purpose needed  One important implication of this is that drunken defendants are a red herring; you treat drunk defendants the same as sober ones  Evidence of intoxication can only come in as a mens rea defense for purpose or knowing crimes

9  MPC §2.08 – Intoxication (1) Except as a provided in subsection 4, intoxication of the actor is not a defense unless it negatives an element of the offense. (Specific but not general) (2) When recklessness establishes an element of the offense, if the actor due to self-induced intoxication is unaware of the risk of which he would have been aware had he been sober, such unawareness is immaterial. (Allows a person who is NEGLIGENT to be convicted of a crime that requires a reckless mindset.) (3) Intoxication does not, in itself, constitute mental disease. (4) Intoxication that is (a) not self-induced or (b) is pathological is an affirmative defense if by reason of such intoxication the actor at the time of his conduct lacks substantial capacity either to appreciate its criminality or to conform his conduct to the requirements of law.

I. Causation – MPC Section 2.03  When do we know when conduct has caused the result?  MPC 2.03 deals with traditional causation issues and transferred intent  Transferred intent: A shoots a gun, tries to hit B, but hits C and kills C; MPC says that this is a causation problem because it deals with the expected vs. the actual result  Actual result: exact detail of what happened  Designed or contemplated result: one that knowing/purposeful actor tries to bring about  Probable result: result that reckless/negligent actor would or should expect to happen  But-For Causation: but for the act, the result would not have occurred  Conduct is the cause of the result when “but for” is satisfied and one of three tests is satisfied based on the mens rea needed: . Knowing/purpose test – for conduct to have knowingly/purposely caused result, the very specific “actual result” must normally be “within the purpose or contemplation of the actor” . Reckless/negligence test – for conduct to have recklessly/negligently caused result, the very specific “actual result” must normally be “within the risk of which the actor is aware” (for recklessness) or “should have been aware” (for negligence) . Strict liability test – “actual result” must be a ‘probable consequence’ of the actor’s conduct”

10  Commonwealth v. Rhodes – Rhodes sets fire, firefighter dies from heart attack while fighting blaze; Rhodes gets convicted of murder; appeals court says the jury should have been charged with an instruction that this is a natural and continuous step in the sequence of events  Commonwealth v. Root – court said that victim caused his own death; since victim attempted to pass def. in a drag race, it was victim’s own actions that caused his death  Stephenson v. State – def. abducts girl, she takes poison and refuses medical treatment, he brings her back to her home, she dies a few days later; def. argues that her suicide is an intervening cause, but the court holds that because of what he did to her, her becoming mentally irresponsible was a direct and natural result of his conduct of kidnapping/rape  US v. Hamilton – victim pulls tubes out of his throat in hospital and dies after fighting with the def.; court affirms the manslaughter conviction because the victim died as a result of injuries that the def. inflicted on him and pulling out the tubes was not a voluntary act  Since criminal punishment is harsher than civil punishment, there is a more narrow construction of causation  Retributive theory says that criminal law should have a more narrow construction of causation because there needs to be a harsh act which justifies the harsh punishment  Utilitarian theory says that causation rules cause people to be extra careful in their acts, knowing that they could responsible for a wide range of results  Year and a day rule: if person lives a year and a day after injuries are sustained, the defendant is not liable for victim’s death if he dies after that time; common law rule abolished in most States

II. Specific Crimes – Homicide, Rape, and Property Crimes

A. Homicide  The common law distinguished between murder and manslaughter  Murder was killing with “malice aforethought”  Manslaughter was killing without “malice aforethought”  1st degree murder is defined as an intentional killing with premeditation  2nd degree murder is knowingly, intentionally, or recklessly manifesting extreme indifference to the value of human life  MPC disregarded the distinction between 1st and 2nd degree murder  MPC made one category of murder, one category of manslaughter

11  United States v. Watson – def. killed policeman who had chased him into an apt. after def. was caught trying to steal car; court ruled that Watson killed with premeditation because there was a point where he overpowered the victim and was able to escape and instead chose to stay and shoot the policeman; to prove premeditation, it has to be shown that the person contemplated taking a human life and then acted on it  Killing with premeditation is deemed more culpable because one has had time to think about and weigh the options and has still chosen murder  The problem with premeditation is that it means that someone is thinking about it; it does not distinguish between “good” premeditation and “bad” premeditation  “Good” premeditation could be someone who deliberated and then kills a relative or spouse to put the person out of his misery  MPC §210 . Criminal Homicide (§210.1) – A person is guilty of criminal homicide if he purposely, knowing, recklessly, or negligently causes the death of another human being; Criminal homicide is murder, manslaughter, or negligent homicide . Murder (§210.2) – Criminal homicide constitutes murder when it is committed purposely or knowingly, or it is committed recklessly under circumstances manifesting extreme indifference to the value of human life; Such recklessness and indifference are presumed if the actor is engaged in or is an accomplice in the commission of, or an attempt to commit robbery, rape, or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping, or felonious escape . Manslaughter (§210.3) – Criminal homicide constitutes manslaughter when it is committed recklessly or a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation and excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be . Negligent Homicide (§210.4) – Criminal homicide constitutes negligent homicide when it is committed negligently

B. Provocation and “The Heat of Passion” as a Mitigating Factor  Intentional murder can be reduced to voluntary manslaughter if def. acted in heat of passion

12  Not self defense; self defense is an absolute defense  People v. Walker – def. killed during the a fight where victim pulled a knife and cut him; def. did not start fight and was found guilty of voluntary manslaughter because he killed in heat of passion; court says part of culpability lies on the victim because he started the fight  There are two steps in a killing: an anger step and an act step  In manslaughter, person is reasonably angered and acts unreasonably  In murder, person is unreasonably angered and acts unreasonably  In self defense, person is reasonably angered and acts reasonably  Rowland v. State – man kills wife after finding her committing adultery; common law rule is killing when responding to adultery is manslaughter; decision has gender overtones, court talks about it is the ultimate shame to man’s masculinity; Would same thing happen if woman killed cheating husband?  Mere Words Doctrine: provocation must be more than merely words for it to be a heat of passion killing (not accepted by the MPC)  Ex Parte Fraley – def. killed a man who had killed his son and had been acquitted 9 months earlier; court ruled against def., saying that there was adequate cooling time and cooling time should be at most a day or even a half day according to common law  Court did not deny that Fraley killed in heat of passion, they just said that by the reasonable person standard, he should have cooled  From utilitarian standpoint, a person that has a long time to think about killing is able to be deterred, while killing someone in the heat of the moment is hard to deter  People v. Berry – def. killed wife after she constantly taunted him about sleeping with another man; gov. used Fraley argument because def. waited for 20 hours at their apt. before he killed; court said that there is no mere words doctrine and no cooling time limit; it is all up to the jury to decide  Berry shows that the modern approach to provocation is that if someone can come up with a plausible provocation story and convince the jury of it, he can get it mitigated to manslaughter  MPC 210.3(1)(b) uses very broad standards to explain when murder is manslaughter because of provocation  According to MPC, the mental or emotional disturbance must be extreme  The two steps in determining the extremeness are: . Subjective: the mental or emotional disturbance must be extreme; focuses on the influence of the extreme disturbance on the act

13 . Objective: Was there a reasonable explanation or excuse for the extreme disturbance? This is judge by the standard of a person “in the actor’s situation” based on what the def. thought he was seeing  MPC is focused on standards, not rules, even though there are both objective and subjective parts  Who is the reasonable person, and do other factors such as race, gender, age, etc. need to be considered when comparing def. to reasonable person?  Government wants to look at purely objective point of view; def. wants to look at a reasonable person that is closer to actual def.  Commentaries on MPC suggest critical inquiry is whether the factor relates to “the ultimate issue of def.’s culpability”  Factors with no connection to def.’s culpability (included): handicaps, extreme grief, shock from personal injury, etc.  Factors with connection to def.’s culpability (not included): idiosyncratic moral views, “extremist” political views

C. Involuntary Manslaughter  These are reckless and negligent homicides  Most states only punish for gross negligence, which is a heightened state of negligence  MPC says only negligence is needed for punishment under negligent homicide  At a certain point recklessness becomes so reckless that it is treated as a knowing crime; MPC calls this acting with “extreme indifference to human life”  State v. Williams – baby dies because parents (Native Americans with minimal education) did not take it to a doctor for fear that baby would be taken away from them; their omission to act was the actus reus  There is a general deterrence justification for punishment; it will teach others in community to take their kids to a doctor when sick  According to MPC, parents would not be guilty because there was not a gross deviation from actions of a reasonable person  From retributive standpoint, there is not a strong argument for punishment; parents have already been punished by losing child  Mayes v. People – def. is out of control and throws a beer glass at wife; glass hits oil lamp and burns and kills wife  In this case, court ruled that def. killed recklessly with an extreme indifference to human life, so it can be punished like a knowledge crime  This type of reckless murder has a really extra substantial and unjustifiable risk

14  Once person is totally indifferent, for the person to know or not know does not effect their culpability

D. Felony Murder Rule  Killing in the commission of a felony is charged as murder (strict liability)  MPC rejects felony murder rule in its most broad incarnation; almost every jurisdiction has a felony murder rule though  Felony murder extends to accomplices such as get-away drivers  People v. Stamp – robbers rob a store, out of shape owner has a heart attack from stress of situation and dies; robbers are convicted of 1st degree murder; court affirms conviction, saying that no intentional act is necessary other than the attempt or actual commission of the robbery for the felony murder rule  Deterrence says that felony murder rule should be limited to cases where death could have been avoided because it will make the criminals more careful when committing a crime  Felony murder rule is saying that because these people are purposely setting out to commit another crime, they are more culpable  People v. Gladman – def. robbed store and then fled to a bowling alley parking lot; cop found him there and def. shot and killed the cop; def. argued that the felony had ended so it could not be felony murder; court left the decision of when the felony ended to the jury and advised them to look at the following aspects: . Distance from location of felony . Time interval between felony and killing . If def. still had possession of the loot . Whether cops were in close pursuit . If def. had reached a place of temporary safety  People v. Hickman – robbers are being chased by police in wooded area; a cop shoots a man whom he thinks is a robber, but it is a detective; robbers are convicted under felony murder rule; court affirms because they looked to statutory comments of the felony murder rule and found that the felon did not need to do the killing  In this case it doesn’t make sense to hold defs. liable if purpose of felony murder rule is to make felons act safer when they commit a felony  There is no deterrent value in felony murder rule when a person other than the def. commits the killing  MPC thought felony murder rule was really like a variation of recklessness  MPC explicitly recognizes felony murder as a type of Mayes v. The People reckless murder, but it requires a fact-specific inquiry into recklessness and extreme indifference to the value of human life

15  The question of recklessness and extreme indifference to the value of human life becomes a jury question  Step-by-Step guide to MPC §210.2(1)(b) . Step 1: For the most part, treat it like any other homicide. Only treat these cases differently if you need to know whether def. committed “reckless murder” under MPC §210.2(b). . Step 2: If it is relevant, ask if def. committed the homicide while engaged in any of the following: robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping, or felonious escape. . Step 3: If the answer is “yes”, next ask whether as a whole it is clear that def. did not act recklessly or did not act with extreme indifference to the value of human life. If that is clear from the facts, the judge will not even let the jury consider whether the homicide was “reckless murder” . Step 4: If it is not clear from the facts, the presumption applies and the jury could find recklessness and extreme indifference and convict on “reckless murder” under MPC §210.2  Policy against felony murder rule . Robbers in People v. Stamp have same culpability as robbers who do an identical act except the owner does not have a heart attack; it seems to go against retributive principles to punish someone who commits a robbery and the victim dies of a heart attack as someone who deliberately plans a murder . The felon-murder causes two separate harms and they should be evaluated in terms of culpability separately . Felony murder transfers intent in an inappropriate way; we are taking the intent to commit a felony and transferring it to the more serious crime of murder  So why then do we have the felony murder rule? . It deters people from committing felonies in general because they know that a death occurs in any way, they will be charged with the more serious crime of felony murder . A felony resulting in a death is more serious than a felony not resulting in a death and therefore deserves more punishment under a retributive analysis

E. Death Penalty  Common law was that the death penalty was available for anyone who committed a felony

16  Some states had death penalty system that allowed for jury to decide if death penalty was appropriate; this system was shot down by the Supreme Court in Furman v. Georgia because it was too arbitrary and gave the jury no help in the decision  The Supreme Court has also shot down mandatory death penalty systems where anyone convicted of a certain type of murder was automatically given the death penalty  The current system is one of guided discretion; the jury still decides if the death penalty is appropriate, but the court holds a separate hearing to present all of the aggravating and mitigating circumstances to the jury to help guide their decision  Death penalty is mainly retributive; there are certain situations where the only type of vengeance that will satisfy the general public’s needs is death (i.e. the Sniper, if he is caught)  Studies pointing out the high error rates in, and subsequent reversals, of death penalty cases have been used by advocates and opponents of the death penalty  Advocates say that the death penalty makes people take a closer look at the case and make absolutely sure that the def. is guilty  Opponents say that too many innocent people are being given the death penalty and that even though there are high reversal rates, there must be plenty of innocent people that are eventually put to death  McClesky v. Kemp – def. is black and killed a white cop during a robbery; he attempts to use Baldus study, which says that black defs. who kill white victims get the death penalty more than any other combination and this is due to racism; def. is saying his sentence violates the 8th and 14th Amendments  Supreme Court accepts the validity of the Baldus study but rules that this is a case about McKlesy’s rights; McKlesky needed to prove that his specific rights were violated in his case and not just present this study; the Court says the Baldus study issue is one for the legislature and not the courts

F. Rape  Simplified elements: sexual intercourse (act), without consent (circumstance), some use of force or resistance (circumstance only in some jurisdictions)  Common law required “utmost resistance”: victim was required to resist rape with utmost resistance during the entire action; this made rape convictions very hard in the past  Courts had such high rape standards because pre-marital sex was very taboo and courts thought women would try to claim rape to get away from the stigma of pre-marital sex  “Rape Shield” blocks def. from using victim’s past sexual history as evidence of consent

17  Brown v. State: victim was walking by def.’s farm; def. attacks and forces sex; victim verbally refuses and tries to escape, but does not cause any physical harm to the def.; court reverses rape conviction because victim did not use utmost resistance to escape  Problem with resistance requirement is that it is looking at the victim’s actions, when the focus should really be on the def.’s actions  Commonwealth v. Berkowitz: def. and victim knew each other, had previous flirty conversations; victim came to def.’s room and they had sex; victim clearly said no; court rules that there was no “forcible compulsion” on the def.’s part, so there was no rape  “Forcible compulsion” is not only physical force, but can also be moral, psychological, or intellectual force used to compel a person to engage in sex against the person’s will; def. was only leaning on her and victim knew the door was unlocked, so there was no forcible compulsion  Consent is a strict liability element for rape in some jurisdictions and in common law  State v. Moorman: man thinks he is having sex with victim’s roommate; victim is asleep during sex and thinks it is a dream; rape conviction stands because victim was asleep and therefore could not give consent or deny consent  Boro v. People: man claimed to be doctor and told woman that she needed to have sex with him to be cured of a disease; court ruled that fraud by inducement is not rape, but fraud of fact would be rape  Fraud of fact would be if she consented to a medical procedure that did not involve sex; here, she consented to sex, so there is no rape  The fraud must involve the substantial matter, i.e. sex, in the matter  People v. Minkowski: doctor says he is using a medical instrument on victim, but is really having sex with them; he conviction is upheld because that is fraud in the fact; victim consented to a medical treatment, not sex  Coker v. Georgia: escaped convict who was serving a life sentence rapes a woman; he was given death penalty; Supreme Court overrules, saying that it is a violation of the 8th Amend. because the punishment does not fit the crime; dissent says that rape is very serious and Georgia needs a way to punish him because he was already serving life in prison  MPC on Rape § 213.1 (1) Rape. A male who has sexual intercourse with a female not his wife is guilty of rape if: (a) he compels her to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone; or

18 (b) he has substantially impaired her power to appraise or control her conduct by administering or employing without her knowledge: drugs, intoxicants, or other means for the purpose of preventing resistance; or (c) the female is unconscious; or (d) the female is less than 10 years old. Rape is a felony of the second degree unless (i) in the course thereof the actor inflicts serious bodily harm upon anyone, or (ii) the victim was not a voluntary social companion of the actor upon the occasion of the crime and had not previously permitted him sexual liberties, in which cases the offense is a felony of the first degree. (2) Gross sexual imposition. A male who has sexual intercourse with a female not his wife commits a felony of the third degree if: (a) he compels her to submit by any threat that would prevent resistance by a woman of ordinary resolution; or (b) he knows that she suffers from a mental disease or defect which renders her incapable of appraising the nature of her conduct; or (c) he knows that she is unaware that a sexual act is being committed upon her or that she submits because she mistakenly supposes that he is her husband.

G. Theft Crimes  There are four types of offenses: . Theft: taking property of another with intent to deprive . Robbery: theft plus injury to a person or risk of injury . Burglary: entering a building with intent to commit a crime inside . Trespass: entering a building or land of another without permission; usually a civil issue, sometimes a minor criminal issue  Reasoning for punishing theft: . Need to deter, punish on retributive grounds; interference with property not as bad as interference with person, but still worth punishing criminally . Property increasingly valuable . Beyond money value, property can have sentimental value  The essence of every theft crime is purposely obtaining property of another with purpose to deprive  All thefts are equivalent; MPC says seriousness of offense depends on the value of the property taken  Commonwealth v. Mitchneck: def. is mine owner who agrees to pay employees by paying a store and allowing the employees to purchase from store on credit; man does not pay the store; court

19 says he is not taking money from the employees because they never had it; this is really a civil matter of owing a debt  Rex v. Chisser: def. looks at an item in a store, and then runs out of store without paying; court says that def.’s act of running away shows his intent of theft  Deprive in MPC terms is defined as taking permanently or for an extended period of time as to devalue the property; if def. returns the item after running out of the store, there is no theft  Durland v. US: def. had investment scheme where he was promising big returns, but was just stealing money; court says that def. was acting in bad faith the entire time; if he had been acting in good faith, he wouldn’t have been guilty  State v. Sein: def. slides victim’s purse out from under her arm; court held that there was no robbery because force required by statute was not present  MPC requires infliction of serious bodily injury or at least threat of serious bodily injury for robbery  Commonwealth v. Kingsbury: def. broke into apt. to assault young boy; two problems: not sure if apt. is “dwelling” because tenants had not fully moved in and not sure if crime was committed at night; court concludes that jury could have reasonably concluded it was night and the apt. was a dwelling because the people had the keys to the place and where the ones who caught the def.  MPC defines night as 30 mins. past sunset to 30 mins. before sunrise  MPC on Theft § 223 . Theft by Taking (§ 223.2): a person is guilty of theft if he unlawfully takes, or exercises unlawful control over movable property of another with purpose to deprive him thereof . Theft by Deception (§ 223.3): a person is guilty of theft if he purposely obtains the property by deception . Theft by Extortion (§ 223.4): a person guilty of theft if he obtains property of another by threat . Theft of Property Lost (§ 223.5): a person who comes into control of property of another that he knows to have been lost is guilty of theft if he fails to take reasonable measures to return the property to the owner . See § 223.0 for theft definitions

20 III. Defenses

A. Defenses Generally  Def. can claim that all of the elements and mens rea are satisfied, yet under the circumstances a defense applies  There are four defenses: self-defense, necessity, duress, and insanity  Excuse: the act was bad, but the def. is not morally blameworthy in context  Justification: the act was a positive thing in context  Justification arguments are more utilitarian, excuse arguments are more retributive

B. Self-Defense  People v. La Voie: def. was driving home from work, four drunk men in another car were bumping him; def. got out of car with a gun and shot one man when he walked toward def. and made verbal threats; his self-defense claim is successful because he had a reasonable belief that he was in danger of great bodily harm  Distinction between self-defense and provocation is that self- defense is a complete defense and provocation just gets a murder charge dropped to manslaughter  People v. Goetz: def. is on subway and shoots 4 kids when the confront him and ask him for money; question is whether to look at what a reasonable person in the actor’s situation thinks or what Goetz actually thought; court uses objective standard because a subjective standard would allow citizens to set their own standards for the permissible use of force  MPC says self-defense must be person-to-person  MPC limits punishment to what mens rea person had if there is a mistake (i.e. if belief is negligent, person is charged with negligent crime)  To use deadly force, person must believe that he needs to protect himself from death, serious bodily harm, kidnapping, or rape  You can’t use self-defense claim if you are the aggressor in the situation  There is a retreat rule in the MPC, but it only applies to deadly force  If a person knows he can retreat safely, he cannot use deadly force  You never have to retreat from your home or workplace  People v. Ceballos: def. set up a trap gun to protect his garage from theft; two teens tried to break in and one was shot; court rules that self-defense does not apply here; trap gun could not when deadly force was needed; trap gun is too dangerous

21  Utilitarian theory says deadly force cannot be used for defense of property because saving a life is better than losing some property  Retributive theory says that it is better to have a morally bad person killed than an innocent victim  MPC on Self-Defense (§ 3.04) . (1) Subject to the provisions of this section and of 3.09, the use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion. . (2) Some limitations (b)(i) you can not be the provoker. (b)(ii) you can retreat or surrender possession of a thing to a person, or complying with a demand that he abstain from any act which he has no duty to take, except that, (1) not obliged to retreat from your dwelling house or place of work, unless you are the aggressor or are being attacked by a person who also works there. (2) Officers (c) unless in a or b, the person can estimate the amount of force he needs to use to protect himself under the circumstances as he believes them to be.  MPC on Self-Defense (§ 3.09) . (1) The justification afforded by 3.04 is unavailable when (a) the actor’s belief in the unlawfulness of the force or conduct against which he employs protective force or his belief in the lawfulness of an arrest which he endeavors to effect by force is erroneous; and (b) his error is due to ignorance or mistake as to the provisions of the Code, any other provision of the criminal law or the governing legality of arrest. . (2) When the actor believes that the use of force upon or toward the person of another is necessary for any of the purposes for which such belief would be a justification in the code, but the actor is reckless or negligent in having such a belief or in acquiring material facts to the justifiability of this use of force, the justification afforded by those sections is unavailable in a prosecution for an offense for which recklessness or negligence suffices to establish culpability . (3) When the actor is justified under the code but recklessly or negligently injures innocent persons, the

22 justification is unavailable in a prosecution for recklessness or negligence toward innocent persons.

C. Necessity Defense  Necessity deals with a generalized balance, the choice for a lesser of two evils  The def. concedes that his act was a crime, but the result was positive  The evil committed by the def. has to be lesser than the evil prevented by the actions  Necessity is more utilitarian than retributive  Necessity is a slippery slope; if you let one case go, it will open it up for more defs. to use the necessity defense  At common law, necessity was allowed when there was a threat of immediate injury plus absence of reasonable alternatives  The Queen v. Dudley & Stevens: four men shipwrecked; two of the men decide to kill and eat one of them men who is very sick; the men are rescued shortly after but would not have survived without eating the dead man; court acknowledges necessity defense, but cannot justify a homicide in this situation  From a utilitarian standpoint, men were justified because their actions resulted in 1 death instead of 4 deaths  From a retributive point of view, they are culpable because they put their lives above the life of the victim; in general if defs. have no moral culpability, retributive theory says that they should not be punished  People v. Warshow: protestors block entrance to nuclear power plant; they are doing this to put nuclear power “on trial”; they claim necessity because they say that the plant could explode if started up; the court ruled that the danger wasn’t imminent, so necessity could not be used as a defense; concurrence took a policy view and said that jury shouldn’t be allowed to decide and issue that was already decided on by the legislature  Just as in self-defense, reckless and incorrect beliefs can support liability for reckless crimes, negligent beliefs for negligent crimes, etc.  MPC on Necessity (§ 3.02) . (1) Conduct that the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that: (a) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged; and (b) neither the Code nor other law defining the offense provides exceptions or defenses

23 dealing with the specific situation involved; and (c) a legislative purpose to exclude the justification claimed does not otherwise plainly appear . (2) When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity of his conduct, the justification afforded by this section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability

D. Duress Defense  The duress defense recognizes that a person who is effectively “forced” to commit a criminal act lacks moral culpability for the act, and need not be deterred from it  Def. has not committed the act under his own free will  This is related to actus reus because the def. is claiming that the act was not voluntary  Duress is like necessity because there is a similar “lesser of two evils” balance going on; it is better to go along and do the crimes than to resist  Duress is like self-defense because it is a response to unlawful force by another; the difference is the direction of where the force is used  State v. Crawford: def. owned a man money for drugs; man wants def. to commit some robberies to pay him back; def. first robs a woman and then kidnaps a man and takes him on a crime spree; def. was told that if he did not repay man, the man would have his family killed; court says the required elements of imminence and continuous compulsions were not met to satisfy duress; def. also had ability to escape and go to police but didn’t  Duress is not available to defs. like Crawford who get themselves in situations where they would be subject to duress  Duress is available to someone who is not really responsible for his acts and can’t be deterred (not morally culpable)  Someone of reasonable firmness can make a cost benefit analysis and act in his best interests  United States v. Contento-Pachon: def. swallows balloons of cocaine and brings them into US; his defense is that if he didn’t do it, the drug cartel would kill him and his family; he claims he was being watched during the entire trip; majority here says duress defense should be a jury question; dissent says that the threat from the cartel was not immediate enough  Duress is limited to threats against the person, and not against property, reputation, etc.

24  MPC looks at specific aspect of how firm person was in resisting coercion when looking at a reasonable person  MPC says that if def. is reckless in getting himself in situation where duress would be probable (Crawford), he cannot use the duress defense at all  MPC says that duress and necessity should be treated independently  MPC on Duress (§ 2.09) . (1) It is an affirmative defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, that a person of reasonable firmness in his situation would have been unable to resist. . (2) The defense provided by this section is unavailable if the actor recklessly placed himself in a situation in which it was probable that he would be subjected to duress. The defense is also unavailable if he was negligent in placing himself in such a situation, whenever negligence suffices to establish culpability for the offense charged. . (3) It is not a defense that a woman acted on the command of her husband, unless she acted under such coercion as would establish a defense under this section. . (4) When the conduct of the actor would otherwise be justifiable under § 3.02 (Necessity), this section does not preclude such defense.

E. Insanity Defense  The mentally ill are more likely than most to commit crimes, but it may seem like the illness, not the def., is responsible  At some point it seems unfair to treat the mentally ill the same as normal people  Deterrence: someone who lacks the capacity to know what is going on can’t be deterred  Incapacitation: both prison time and commitment to a mental hospital will incapacitate and prevent crime  Rehabilitation: insanity verdict leads to treatment; best chance for rehabilitation  Retributive: the less the person is aware of the wrongfulness of what he is doing, the less culpable the person is for what he does  Jurors are skeptical to believe the insanity defense; it rarely works  M’Naghten Test (1843): Def. not responsible at the time of the act, he: . Was laboring under a defect of reason, a disease of the mind, so that either

25 (A) he did not know the nature and quality of the act he was doing, or (B) if he did know the nature and quality of the act, he did not know that the act was wrong  Irresistible Impulse Test (19th Cent.) . Def. was not responsible, even if he knows that what he did was wrong, if he has a “disease of the mind” that was the sole (or primary) cause of the act, and that denied him the power to choose not to commit the act  Durham Rule (1954) . An accused is not criminally responsible if his unlawful act was the product of a mental disease or mental defect . Juries to be guided by wider horizons of knowledge concerning mental life (rarely adopted)  MPC looks at two issues: Does the person recognize that he is committing the act and can he appreciate the wrongfulness of the act  MPC test is more favorable to a defendant than the M’Naghten Test  Big divide between the MPC and M’Naghten is that the MPC includes the broader volitional prong  MPC on Insanity (§ 4.01) . (1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the requirements of law. . (2) As used in this Article, the terms “mental disease or defect” do not include an abnormality manifested only by repeated criminal or otherwise anti-social conduct  Federal Test, 18 U.S.C. § 17 . Defendant can get NGI verdict if “as the result of a severe mental disease or defect” he was “unable to appreciate the nature and quality or wrongfulness” of his acts . This was enacted in response to John Hinckley being found NGI after he shot Regan)  People v. Serravo: man stabbed his wife because thought he had a special relationship with God and God wanted him to build a sports complex; his wife did not support him in this and he felt that he needed to kill her to accomplish his goals; question is whether to go by the standard of moral wrong or legal wrong; court says that question of legal wrong is too sterile and moral wrongfulness really goes toward the issue of culpability and insanity; court says that moral wrong should be judged by the objective standard of what society thinks is a moral wrong

26  Problem with Serravo case is that the moral standards of a Colorado jury may be different than moral standards of other places  For the NGI defense to be available, the def. has to be diagnosed with a mental disease or defect

IV. Attempt

A. Generally  Inchoate Crimes: partial or unfinished crimes  Inchoate crimes are not separate crimes, but rather separate ways of being held liable for crimes  Attempt is when defendant tries to complete the crime, but for some reason does not  Felonious intent is not enough for attempt; there must be an overt act to display the intention  State v. Lyerla: man shot at some girls in another car; he hit and killed one girl and missed the others; he is charged with both murder and 2nd deg. attempted murder; court reverses the 2nd deg. attempted murder charge, saying that you can’t intend to do something recklessly  There are a lot of risky activities, but that doesn’t mean that engaging in any risky activity is an attempt; legislature can make specific activity a crime if it wants to (i.e. drunk driving)  General rule is that purpose is required for attempt  People v. Rizzo: defs. were driving in a car with a gun searching for a specific man to rob; they were caught and charged with attempted robbery; their convictions were overturned because their acts were too remote to the crime to constitute an attempt

B. Policy/Theory  Problem with attempt crimes is how broadly or narrowly to define the actus reus and the mens rea  We don’t want the law to intervene too soon; it should criminalize really dangerous and culpable activity, but not everything surrounding it  We don’t want the law to intervene too late; don’t want to give bad guys a way of evading criminal liability just because they haven’t been caught precisely in the act  Raises concerns about punishing people without fault (because no harm has been committed.) Poses the retributive worry of punishing for thoughts, because we have to prove INTENT to cause harm, but no harm.  A utilitarian would not have a problem punishing the attempter because his thoughts and the attempt prove that he is dangerous.

27  The retributive thinker might punish attempts because they exhibit bad character, but they would also insist that punishment be for wrongdoing. He would say that the attempter should not be punished until his conscience has been given an opportunity to check those evil desires.  Utilitarians will also argue that punishing attempts maximizes deterrence, because deterrence is most effective when punishment is certain.

C. Impossibility Defense  Here, the def. is trying to commit a crime, but there is no way he will commit the crime because an attendant circumstance unknown to the def. prevents him from committing the crime  There are two types of impossibility: . Pure legal impossibility: def. thinks his actions constitute a crime, but it turns out not to be a crime . Hybrid legal/factual impossibility: def. is mistaken on a fact or non-governing law that makes the crime impossible  Pure legal impossibility is a always a defense because it is not really an impossibility issue  Impossibility is parallel to mistake law . Pure legal impossibility = mistake of governing law . Hybrid legal impossibility = mistake of non-governing law . Factual impossibility = mistake of fact  People v. Thousand: def. sends obscene pictures to what he thinks is a young girl, but it is really an undercover policeman; he claims impossibility when he is charged with attempted distribution of obscene material to a minor; court rejects the impossibility defense; Thousand was just as culpable even if the young girl was not a young girl; he had the mens rea and committed the act  Big question is how to define attempt? Attempt can be seen subjectively (what the actor thinks) and objectively (what is really happening)  From a utilitarian standpoint, the impossibility defense is bad because without punishment there can be no deterrence or incapacitation and the def. is free to try again to commit the crime  Retributive argument for impossibility says that there can be no punishment if no social harm actually occurred  MPC rejects impossibility defense (except for pure legal impossibility)

D. Impossibility Brain Teaser  Law is that it is a crime to distribute obscene materials to anyone under 18

28  The mens rea attached to the age element is knowing

29  Hypo 1: def. knows the age limit for the crime is 18

Age of recipient is 17 Age of recipient is 19 Def. believes recipient is 17 Guilty of crime Guilty of attempt Def. believes recipient is 19 Not Guilty (Mistake of Fact) Not Guilty

 Hypo 2: def. thinks the age limit is 16 instead of 18

Age of recipient is 17 Age of recipient is 19 Def. believes recipient is 17 Guilty (mistake of non- Guilty of attempt governing law) Def. believes recipient is 19 Not Guilty (Mistake of Fact) Not Guilty

 Hypo 3: def. thinks the age limit is 21 instead of 18

Age of recipient is 17 Age of recipient is 19 Def. believes recipient is 17 Guilty of crime Guilty of attempt Def. believes recipient is 19 Not Guilty (Mistake of Fact Not Guilty (Pure legal for crime and pure legal impossibility) impossibility for attempt)

E. The MPC on Attempt (§ 5.01) (1) Definition of Attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he: (a) purposely engages in conduct that would constitute the crime if the attendant circumstances were as he believes them to be; or (b) 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 result without further conduct on his part. (c) purposely does or omits anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime. (2) Conduct which may be held substantial step. Conduct is not a substantial step unless it is strongly corroborative of the actor’s

30 criminal purpose. Without negating the sufficiency of the other conduct, the following, if strongly corroborative of the actor’s criminal purpose, shall not be held insufficient as a matter of law. (a) lying in wait (b) enticing the victim to go to a place (c) reconnoitering the place contemplated for commission (d) unlawful entry of structure, vehicle, enclosure where the crime will take place. (e) possession of materials with no other lawful purpose (f) possession of material with no lawful use for the actor (g) soliciting an innocent agent to engage in conduct constituting an element of the crime. (3) Conduct designed to aid another in commission of a crime. A person who engages in conduct designed to aid another to commit a crime that would establish his complicity under § 2.06 if the crime were committed by such other person, is guilty of an attempt to commit the crime, although the crime is not committed or attempted by such other person (4) Renunciation of Criminal Purpose. You can raise it as an affirmative def. Renunciation is not complete if you are simply postponing it to a time when circumstances will be better.

 § 5.01(1) requires that the def. has the mens rea for each of the elements required for the substantive offense  § 5.01(1)(a) says that the def. has to have purpose and complete the attempt and there is no impossibility defense  § 5.01(1)(b) says the def. must have purpose or belief with respect to causing death to be guilty of attempted murder  § 5.01(1)(c) says that the line between mere preparation and attempt is governed by the “substantial step” test (i.e. the act is a substantial step in a course of conduct planned to culminate in the commission of the crime)  § 5.02(2) says that the substantial test must be strongly corroborative of the actor’s criminal purpose; it also lists acts which may constitute substantial steps  § 5.01(4) allows for renunciation; def. must manifest a complete and voluntary renunciation of his criminal purpose to be found not liable  Renunciations have to be for good moral reasons  § 5.05(1) grades attempts like the substantive offense, except that attempts of 1st degree felonies are 2nd degree attempts  § 5.05(2) says that if the conduct is so inherently unlikely to result in the crime that there is no public danger warranting the severity of punishment, the court can impose a lower sentence or dismiss the prosecution altogether

31 Summary of MPC Attempt Actus Reus Substantial Step that strongly corroborates criminal purpose Mens rea w/r/t conduct elements Purpose (§ 5.01(1)(a),(c)) Mens rea w/r/t result elements Purpose or belief (§ 5.01(1)(b)) Mens rea w/r/t attendant circumstance Whatever the substantive offense requires elements

Summary of MPC Safety Valves Abandonment Def. abandons effort, complete and § 5.01(4) voluntary renunciation of criminal purpose Inherent Unlikelihood If attempt is inherently unlikely, not § 5.05(2) enough public danger to warrant, either lower sentence or dismissal

V. Group Crimes

A. Solicitation  A tells or asks B to commit a crime  Solicitation is unilateral, it doesn’t matter about the other side, as long as you are trying to solicit someone  People v. Lubow: defs. ask man to help in a criminal pyramid scheme; man reports them to the police; they were convicted and the conviction was upheld; their actus reus was the act of asking and the mens rea requirement of purpose was met  Brandenburg v. Ohio: def. was shown on film talking about KKK actions; he was talking about revenge against Blacks and Jews; Supreme Court reverses his conviction, saying that the advocacy must be directed to inciting or producing imminent lawless action and is likely to induce or produce such actions; def. was speaking generally and was not directing his words to specifically produce imminent criminal actions  Brandenburg developed the “True Threat” doctrine: speech must be encouraging a true crime that will be imminent  MPC on Solicitation (§ 5.02) . (1) A person is guilty of solicitation to commit a crime if with the purpose of promoting or facilitating its commission he commands, encourages or requests another person to engage in specific conduct that would constitute such crime or an attempt to commit such crime

32 or which would establish his complicity in its commission or attempted commission. . (2) It is immaterial under Subsection (1) of this Section that the actor fails to communicate with the person he solicits to commit a crime if his conduct was designed to effect such communication. . (3) It is an affirmative defense that the actor, after soliciting another person to commit a crime, persuaded him not to do so or otherwise prevented the commission of the crime, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.  For renunciation under the MPC, the def. must persuade the person not to commit the crime or he must prevent the commission of the crime  There is also the inherent unlikelihood safety valve (§ 5.05) for solicitation; if the crime is inherently unlikely, the def. can get a reduced sentence or the charges can be dropped altogether  Solicitation has been highly criticized for punishing people too early in the act; you are punishing for mere speech  It does show culpability and bad moral character though because you are manifesting your bad ideas to others and giving them direction in committing crimes

B. Accomplice Liability (MPC § 2.06)  When A “aids or abets” B in B’s criminal activity, A assumes the criminal liability of B  A failed effort at complicity is an attempt (i.e. A tries to help B commit offense, but B does not; under § 5.01(3), A is guilty of attempt)  According to MPC § 2.06(3), the actus reus is: soliciting another, aiding another, or agreeing to aid another in the planning or commission of the offense  The actus reus for complicity is very broad; the difficult question is mens rea

Mens Rea of Accomplice Liability Conduct Elements Purpose of promoting or facilitating the commission of the offense § 2.06(3)(a) Result Elements Whatever the substantive offense requires § 2.06(4) Attendant Circumstance Elements Left unresolved by the MPC drafters

 The key is the mens rea of the accomplice with respect to the principal offense  Murray v. Commonwealth: Murray stands and watches Grace steal a man’s wallet; court says that Murray’s act of standing real close

33 to the man intimidated the man and helped Grace; Murray acted with purpose towards the principal offense  Pace v. State: Pace was driving car with family and a friend; they picked up a hitchhiker and the friend pulls out a knife and robs the hitchhiker; court reversed Pace’s conviction because he lacked the mens rea associated with the principal crime; he was not intending to further the crime  State v. Etzweiler: def. loaned his car to Bailey when he knew that Bailey was drunk; Bailey got into an accident and killed 2 people; def. is charged with negligent homicide as an accomplice; court reverses his conviction because being an accomplice requires purpose and Etzweiler could not intentionally aid Bailey in a crime that Bailey was unaware he would be committing  MPC § 2.06(6)(c) allows for renunciation; it is a looser renunciation standard, only requiring the person to make proper effort to stop the crime  Asking the accomplice to stop the crime is asking too much; just taking steps to stop the crime, such as telling the police, is enough  We require the high standard of purpose for mens rea because accomplice liability is a serious thing; it says that the accomplice becomes the person who has committed the crime for punishment purposes  By making accomplices just as liable as the people who actually commit the crime, you deter them from becoming involved in criminal activity  Retributive theory says that people should get just desserts for their acts, and since the accomplice did not commit the act, he should not be punished for it; still, the accomplice is showing bad moral character and deserves punishment

C. Conspiracy  Conspiracy is an agreement to commit or aid in criminal acts  State v. Verive: def. was paid to go threaten and beat up a guy; court rules that the conspiracy is separate from the attempt; the actus reus for conspiracy is the agreement  It is extremely difficult for gov. to prove conspiracy if they don’t have anyone from the conspiracy to testify against his partners; this is a justification for broad conspiracy law  Strong incentive for criminals is to plead guilty first and get a good deal by ratting out the entire group  People v. Lauria: def. was running an answering service; he was taking calls for people, some who were prostitutes; he knew that some of his customers were prostitutes; question is whether he had both knowledge and intent to promote the crime; court found he had knowledge but lacked the intent to promote the crime

34  Court gives three situations where intent can be inferred from knowledge: (1) inflated charges for service or goods (2) sale of goods with no legitimate use (3) sale in inflated amounts  The more extraordinary the criminal enterprise is, the more knowledge will infer intent  Pinkerton Rule: any conspirator is liable for a crime that is committed by a co-conspirator; the crime must be reasonably foreseeable as a necessary or natural consequence of the unlawful agreement  United States v. Diaz: def. set up a drug deal; the buyer was an undercover agent; the seller had a gun with him; def. is charged with carrying a gun during a drug transaction even though he did not have the gun; court says that it is reasonably foreseeable that someone would carry a gun during a drug transaction  Pros of Pinkerton: . Deters criminals from joining conspiracy . Conspiracies are dangerous, so we need a powerful doctrine . Gives government another powerful means to get small- time criminals to plea and turn against the bigger players in the conspiracy  Cons of Pinkerton: . Once the person has joined the conspiracy, if one person is going to carry a gun, everyone can carry a gun because they are all liable anyways . Accomplice liability can cover this . Conspirators are not culpable for actions of their partners  MPC on Conspiracy (§ 5.03) . Actus reus required is an agreement plus an overt act my at least one co-conspirator; the overt act is not needed if the crime is a felony of the 1st or 2nd degree (such a murder or manslaughter)

Mens Rea of Conspiracy Conduct Elements Purpose of promoting or facilitating the commission of the offense (§ 5.03(1)) Result Elements Purpose of promoting or facilitating the commission of the offense (§ 5.03(1)) Attendant Circumstance Left unresolved by MPC Elements

. Renunciation is allowed if it is complete and voluntary and the def. thwarts the success of the conspiracy by

35 taking action sufficient to prevent consummation of the criminal objective

Comparing the Inchoates: Actus Reus Attempt, 5.01 Substantial Step, strongly corroborative Solicitation, 5.02 Commands, encourages, requests specific conduct Complicity, 2.06 Solicits, aids, agrees, attempts to aid Conspiracy, 5.03 Agreement, plus overt act for lesser crimes

Comparing the Inchoates: Mens Rea Attempt, 5.01 Solicitation, Complicity, Conspiracy, 5.02 2.06 5.03 Conduct Purpose Purpose Purpose Purpose Elements Attendant Whatever Purpose Left unclear Left unclear Circumstance statute requires (awareness, Elements hope or belief) Result Purpose or Purpose Whatever Purpose Elements belief statute requires

Comparing the Inchoates: Renunciation Attempt, 5.01 Abandons or otherwise prevents, complete and voluntary renunciation Solicitation, 5.02 Persuades person solicited not to do or otherwise prevents commission, complete and voluntary Complicity, 2.06 Terminates, gives timely warning to police or otherwise makes proper efforts Conspiracy, 5.03 Thwart the success, complete and voluntary renunciation