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I. Theories of punishment a. Prevention/Intimidation/Particular Deterrence/Punishment i. Aims to deter the specific criminal ii. Give criminal unpleasant experience, so he won’t repeat offend iii. Pro: don’t know what the rate of recidivism would be without this iv. Cons: 1. Is this effective given the high rate of recidivism? 2. May produce feelings of revenge against society in the prisoner b. Restrain/Incapacitation/Isolation/Disablement i. Pro: 1. Society must protect itself from offenders 2. Used to justify death penalty and life without parole ii. Con: 1. Those who present a danger of continuing criminality can rarely be identified 2. Most prisoners will eventually be returned to society anyway c. Rehabilitation/Correction/Reformation i. Pro: 1. Return offender to society reformed so that he will not commit crimes 2. Focus on making offenders life better 3. Rests on the theory that human behavior is the product of antecedent causes. ii. Con: 1. Sees offenders as lacking dignity and capable of manipulation 2. Uncertainty as to ability to reform offenders 3. Injustice done to offenders who are treated differently on the presumption that they are somehow different, increased by the uncertainty as to the effectiveness of the reformation d. Deterrence/General Prevention i. Pro: to prevent others, aside from the criminal, from committing future crime ii. Con: 1. Difficult to measure effectiveness 2. Expert criminals and those who commit emotional crimes unlikely to be deterred. 3. Probability of discovery may be more influential e. Education i. Pro 1. Educates the public as to the distinctions between good and bad conduct 2. Especially helpful with malum prohibitum offenses f. Retribution/Revenge/Retaliation i. It is only fitting that one who has caused harm should have to suffer harm; society needs revenge ii. Con: morally indefensible II. Classification of Crimes a. Felony vs. Misdemeanor i. Statutory distinction ii. Felony—usually a crime that is punished by death, imprisonment for more than a year (sometime in the state penitentiary)—Melton v. Oleson (course handout); determined by the possible rather than actual punishment imposed iii. Misdemeanor—any crime that is not a felony (punishable by imprisonment of less than one year and in a local jail) iv. Melton v. Oleson—The character of the offense, i.e. whether felony or misdemeanor, must be determined by the laws of the jurisdiction where the crime was committed. b. Malum in se and malum prohibitum c. Infamous Crimes (US v. Moreland) i. US Constitution requires that these crimes be charged by grand jury indictment ii. Defined by the possible (not actual) punishment rather than the crime iii. Punishments that result in imprisonment in a penitentiary or hard labor. iv. State and federal definitions may differ-- III. Elements of a crime a. Actus reus i. Bad thoughts alone can not constitute a crime, must be commission or omission ii. Act must be voluntary b. Mens rea c. Causation d. Harm IV. Homicide Generally a. Defined—the killing of a human being by another human being b. Felonious homicide i. Corpus delicti and ii. the identity of the accused as the other who caused the death c. Corpus delicti i. Defined—the body of the crime ii. Essential element of felonious homicide iii. Elements a. Death b. The criminal agency of another as the cause of death iv. Established by: a. Direct or b. Circumstantial evidence v. Cases a. Downey v. People—corpus delicti established by circumstantial evidence. Competent evidence tending to establish the facts of the case is sufficient to establish the corpus delicti of the crime of murder b. Hicks v. Sheriff, Clark County—Confessions of criminal agency causing death require independent corroboration of the evidence. At the very least there must be established, independent of an confession or admission by the accused, the fact of death and that it resulted from the criminal agency of another and not from natural causes, accident or suicide. c. Warmke v. Commonwealth—a body need not be recovered to establish corpus delicti. For the purposes of establishing corpus delicti, death may be shown by circumstantial evidence in the form of proof of criminal violence adequate to produce death and which accounts for the disappearance of the body. d. What qualifies as life i. Beginning a. Majority—birth (People v. Guthrie) b. Minority i. Viable fetus ii. Fetus, even nonviable c. MPC 210.0(1)—“human being” means a person who has been born and is alive. (CB 216) d. Michigan Assaultive Abortion Statute—willful killing of an unborn quick child by injury to the mother of such child, which would be murder if it resulted in death of such other, shall be deemed manslaughter. e. Manslaughter by Abortion Statute—administer to any woman pregnant with quick child any medicine, drug, or substance whatever, or shall employ any instrument by any other means, with the intent thereby to destroy such a child, unless the same shall have been necessary to preserve the life of the mother, shall, in the case of death of such child or of such mother be thereby produced, be guilty of manslaughter. ii. End a. Common law: “The cessation of life; the ceasing to exist; defined by physicians as a total stoppage of the circulation of the blood and a cessation of the animal and vital functions consequent thereon, such as respiration, pulsation, etc.” b. Brain death (majority of states) i. Unresponsiveness to normally painful stimuli ii. The absence of spontaneous movements or breathing iii. The absence of reflexes c. People v. Fierro e. MPC 210.1 Criminal Homicide (CB 216) i. A person is guilty of criminal homicide if he purposely, knowingly, recklessly or negligently cases the death of another human being. ii. Criminal homicide is murder, manslaughter, or negligent homicide. V. Murder a. Defined: i. Common law—The unlawful killing of another living human being with malice aforethought ii. MPC 210.2 Murder (CB 216)—Criminal homicide constitutes murder when: 1. It is committed purposely or knowingly 2. It is committed recklessly under circumstances manifesting extreme indifference to the value of human life. Such recklessness or indifference is presumed if the actor is engaged or is an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape, deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape. 3. Murder is a felony of the first degree. b. Malice aforethought for murder (mens rea) i. Intent to kill murder ii. Intent to do serious bodily injury murder iii. Depraved heart murder (Banks v. State) 1. One who deliberately uses a deadly weapon in such a reckless manner as to evince a heart reckless of social duty and fatally bent on mischief, as is shown by firing into a moving railroad train upon which human beings necessarily are, cannot shield himself from the consequences of his acts by disclaiming malice. 2. The intentional doing of any wrongful act in such a manner and under such circumstances as that the death of a human being may result there from is malice. iv. Felony murder 1. incorporated under the MPC as mens rea (see above MPC 210.2 CB p. 216) 2. At common law: a. People v. Phillips (handout) i. Felony must be inherently dangerous to human life ii. In assessing the peril, look at the felony in the abstract and not on the particular facts of the case. iii. Should not withdraw the issue of malice when looking at the felony murder rule. Still must find malice express or implied— manifest with an intent with conscious disregard for life to commit acts likely to kill iv. The commission of felony may be enough to get to murder— contrast with MPC approach where felony only substitutes for mens rea. c. MPC--A person is guilty of criminal homicide under the Model Code if he unjustifiably and inexcusably takes the life of another human being [MPC § 210.0(1)] purposely, knowingly, recklessly, or negligently. [MPC § 210.1(1)] The Code recognizes three forms of criminal homicide: murder, manslaughter, and (unlike the common law) negligent homicide. At common law negligent homicide is included in manslaughter. The Model Penal Code rejects the degrees-of-murder approach. VI. Manslaughter a. MPC 210.3 Manslaughter (CB 217) i. Criminal homicide constitutes manslaughter when: 1. It is committed recklessly; or 2. 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 or 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. (Note: this belief does NOT have to be reasonable; also note that this is an excuse for the mental state, but not for the killing). 3. Manslaughter is a felony of the second degree. b. Common law i. Top down approach (Voluntary) 1. Mitigation from Murder 2. Elements of Voluntary Manslaughter (State v. Farris) a. Defendant was sufficiently provoked b. By conduct which aroused rage, fear, sudden resentment, terror or some other extreme emotion c. And the provocation was such that an ordinary person of average disposition would have lost self-control and not yet cooled (CONTRAST: Common law ordinary person standard with the MPC approach which does not have an ordinary person standard). d. The defendant is guilty of manslaughter rather than murder 3. Factors that contribute to provocation (State v. Farris) a. Prior bad acts of the victim directed at the defendant and the members of the defendant’s family b. Prior threats of killing both defendant and a member of his family c. A motion towards defendant at the time of the killing which could have been an attempt to strike the defendant or move for a weapon. d. Words alone will not furnish adequate provocation for this purpose. CONTRAST with State v. Grugin: informational words may constitute provocation (I’m having an affair); an assault, too slight in itself to be sufficient provocation, to reduce murder to manslaughter, may become sufficient for that purpose, when coupled with words of great insult. There are circumstances where words amount to a provocation in law. e. People v. Borchers (CB 188)—The fundamental inquiry in determining whether homicide is a voluntary manslaughter is whether or not the defendant’s reason was, at the time of his act so disturbed or obscured by some passion—not necessarily fear and never, of course, the passion of revenge—to such an extent as would render ordinary men of average disposition liable to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.” ii. Bottom up approach (Involuntary)—the unlawful killing of a human being without malice aforethought and without intent to kill 1. People v. Williams: Unlawful killing occurs: a. During the commission of a misdemeanor (which is inherently dangerous to human life). (Misdemeanor manslaughter) b. In the commission of an act ordinarily lawful, which involves a high risk of death or great bodily harm. (Criminally negligent homicide) c. In this case, the manslaughter occurred during the commission of a battery and therefore was considered misdemeanor manslaughter. 2. Misdemeanor Manslaughter Rule 3. Criminally negligent homicide (not separate offense as provided under the MPC) a. People v. Rodriguez (CB 200)—California Rule: mother left her children at home alone when the house caught fire and her infant died. Here no evidence tending to suggest the knowledge that leaving children at home alone might result in death. Involuntary manslaughter may occur in the commission of an unlawful act, not amounting to a felony, or in the commission of an unlawful act, which might produce death, in an unlawful manner, or without due caution or circumspection. It is generally held that an act is criminally negligent when a man of ordinary prudence would foresee that the act would cause a high degree of risk of death or great bodily harm. The act must be one which has knowable and apparent potentialities for resulting in death. Mere inattention or mistake judgment resulting even in death of another is not criminal unless the quality of the act makes it so. VII. MPC 210.4 Negligent Homicide (MPC ONLY) (CB 217) a. Criminal homicide constitutes negligent homicide when it is committed negligently b. Negligent homicide is a felony of the third degree c. MPC 2.02 (c) (CB 742) Recklessly i. A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actors conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law- abiding person would observe from the actor’s situation. d. MPC 2.02 (d) (CB 743) Negligently i. A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature or degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation. e. State v. Bier (CB 202—trailer park case)—a person acts negligently with respect to a result or to a circumstance described by a statute defining an offense when he consciously disregards a risk that the result will occur or that the circumstance exists or if he disregards a risk of which he should be aware that the result will occur or that the circumstance exists. Gross deviation that is a considerably greater than lack of ordinary care, is the applicable standard. Must be a foreseeable risk—victim foreseeably endangered. f. Mitigation to negligent homicide: People v. Watkins (CB 205—bar fight case)—while a jury might not believe that a reasonable man would be in fear of his life under the circumstances of the case, they might in fact believe that the defendant held a good faith belief, though an unreasonable one, that he feared for his life. Such a belief would entitle him to a verdict of criminally negligent homicide rather than murder. g. Not all states have criminal negligence statutes—those that do usually limit to certain offenses such as vehicular homicide. VIII. Classification of Murder a. People v. Drum (CB 153)— i. All murder which shall be perpetrated by means of poison or by lying in wait or by any other kind of willful, deliberate and premeditated killing, or in which shall be committed in the perpetration of, or attempt to perpetrate any arson, rape, robbery, or burglary, shall be deemed murder of the first degree, ii. All other kinds of murder shall be deemed murder of the second degree. Includes: 1. Unlawful killing under circumstances of depravity of heart and a disposition of mind regardless of social duty 2. If no intention to kill exists or can be inferred or collected from the circumstances. iii. Willful—if an intention to kill exists iv. Deliberate—if this intention be accompanied by such circumstances as evidence a mind fully conscious of its own purpose and design v. Premeditated—if sufficient time be afforded to enable the mind fully to frame the design to kill, and to select the instrument, or to frame the plan to carry this design to execution vi. Manslaughter—unlawful killing of another without malice express or implied; 1. Voluntary—in a sudden heat 2. Involuntary—in the commission of an unlawful act b. People v. Cornett (handout) i. To constitute deliberate and premeditated killing, the slayer must weigh and consider the question of killing and the reasons for and against such a choice and, having in mind the consequences, decide to and commit the unlawful act causing death. ii. The true test is not the duration of time, but rather the extent of the reflection. c. People v. Wilson (handout)—independent felony rule: A felony is independent of the homicide if the purpose of committing the felony is to kill, assault with a deadly weapon, or cause serious bodily injury. This is the PURPOSE TEST. IX. Assault and Battery a. Battery: unlawful application of force upon the person of another (in the absence of PRIVILEGE, i.e. self-defense.) There is NO necessity of resultant bodily harm for criminal battery at common law. b. US v. Bell (CB p. 230)—There may be an attempt to commit a battery and hence an assault under circumstances where the intended victim is unaware of the danger. Apprehension on the part of the victim is not an essential element of that type (attempted battery) of assault. Defendant’s attempt to rape an insensitive victim was assault. Two definitions of assault: i. Attempted battery ii. An act putting another in reasonable apprehension of bodily harm c. MPC 211.1 Assault (CB 248) i. Simple Assault. A person is guilty of assault if he: 1. Attempts to cause or purposely, knowingly or recklessly causes bodily injury to another, or 2. Negligently causes bodily injury to another with a deadly weapon, or 3. Attempts by physical menace to put another in fear of imminent serious bodily injury. Simple assault is a misdemeanor unless committed in a fight or scuffle entered into by mutual consent, in which case it is a petty misdemeanor. ii. Aggravated Assault. A person is guilty of aggravated assault if he: 1. Attempts to cause serious bodily injury to another or causes such injury purposely, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life (felony in the second degree); or 2. Attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon (felony in the third degree) d. MPC 211.2 Recklessly Endangering Another Person (CB 248)A person commits a misdemeanor if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury. Recklessness and danger shall be presumed where a person knowingly points a firearm at or in the direction of another, whether or not the actor believed the firearm to be loaded. e. Three views of assault: i. Minority view (1): To have a criminal assault you must have an attempted battery ii. Minority view (2): Criminal assault is an attempted battery and the present (actual not merely reasonable belief) ability to complete the battery iii. Majority view: criminal assault requires attempted battery or tort definition of assault iv. Hypothetical: Defendant purposely points gun at victim. Defendant pulls the trigger. The gun is not loaded. 1. What do you need to know? 2. Does the defendant know that the gun is not loaded? 3. Does the victim know that the gun is not loaded? D knows gun is not D thinks gun is Both D and V know Both D and V think loaded, but the V loaded, but the V that the gun is not that the gun is thinks the gun is knows the gun is loaded loaded, though it is loaded not loaded unloaded Minority 1 No assault because Yes—attempted No—no attempt to Yes—attempted no attempted battery commit battery battery battery—no intent Minority 2 No assault because No—attempted No—no attempt to No—attempted no attempted battery without commit battery and battery without battery—no intent present ability no present ability present ability Majority Assault under tort Yes—attempted No—for the tort Yes—attempted definition—if the battery; No under claim the D must battery; tort defendant has intent tort definition have intent to cause definition yes also to cause because the victim apprehension if the because the D apprehension (does can not be in D knows its not intends battery and the defendant know apprehension if he loaded knows the V the V is in that the victim knows the battery knows it is not apprehension. thinks the gun is can not happen loaded. V has no loaded) apprehension f. Once you show a battery, there has been an assault. (US v. Jacobs, CB 232) X. Actus Reus a. MPC 2.01 Requirement of a voluntary act. (CB 455) i. A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable. ii. The following are not voluntary acts within the meaning of this section: 1. a reflex or convulsion 2. a bodily movement during unconsciousness or sleep 3. conduct during hypnosis or resulting from hypnotic suggestion 4. a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual. iii. Possession is an act, within the meaning of this section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession. b. Blackstone—intent can only be surmised by the commission of an overt act in furtherance of the intention. c. State v. Quick (CB 448)—defendant convicted of unlawful manufacture of intoxicating liquor. The law dies not concern itself with mere guilty intention, unconnected with any overt act. d. People v. Decina (CB 451)—the conscious act was driving the car when the driver knew that he was prone to seizures and thus he has committed the requisite actus reus for negligent homicide. The actus reus is not hitting the victims with the car. e. Omission as actus reus: i. Common Law: Jones v. United States (CB 503)—Omission of a duty to care resulting in the death of the one whom the duty is owed is chargeable with manslaughter. Legal duties: 1. statutorily imposed duty to care for another 2. where once stands in certain status relationship to another 3. where one has assumed a contractual duty to care for another 4. where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid. 5. (from notes) where one has created the peril in the first place 6. (from notes) where a parent has a legal duty to protect others from their child ii. MPC 2.01. Omission as Basis of Liability (CB 509) 1. Liability for the commission of an offense may not be based on an omission unaccompanied by action unless: a. The omission is expressly made sufficient by the law defining the offense, or b. A duty to perform the omitted act is otherwise imposed by law. XI. Mens Rea a. Perkins on mens rea: i. Neither actus reus or mens rea is sufficient for conviction; it is the combination of the two which constitutes criminal guilt. ii. On the negative side there must not be found any factor which is sufficient for exculpation iii. On the positive side there must be found an intent to do the deed which constitutes the actus reus of the offense charged. iv. General mens rea is common to all true crime b. State v. Chicago, Milwaukee & St. Paul Railway i. Enforcement of statutes purely penal in nature serves no purpose where the violation was unintentional or inadvertent ii. Where a statute outside of the criminal code provides for imprisonment and the legislature has not shown an intent to dispense with a culpable mental state, the prosecution must at least establish criminal negligence to convict. c. State v. Peery—specific intent crime: the evidence must be sufficient to sustain a finding that the misconduct complained of was committed with the deliberate intent of being indecent or lewd rather than the result of carelessness or thoughtlessness. d. Intended consequences are those which: i. Represent the very purpose for which an act is done (regardless of the likelihood of occurrence) or ii. Are known to be substantially certain to result (regardless of desire) e. Specific intent: additional intent specifically required for the guilt of the particular offense. i. MPC rejects specific intent: MPC mens rea is purposely, knowingly, recklessly, and negligently ii. State v. May (forgery case, handout)—It has been held in this state, and in others, that a person possessing a recently forged document, or passing it, is presumed either to have forged it or to have the necessary intent to defraud. This is a rebuttable presumption, but it does shift the burden to the defendant to explain his incriminating conduct. iii. Dobbs Case (CB 659): Prisoner acquitted of killing horse when his intention was merely to harm the horse and prevent it from running; no intent for burglary iv. Thacker v. Commonwealth (CB 659): 1. An attempt to commit a crime is composed of 2 elements: a. The intent to commit it and b. A direct, ineffectual act done towards its commission. 2. To be guilty of an attempt (to murder) there must be specific intent (to kill) f. MPC Mens Rea—2.02 General Requirements of Culpability i. Minimum Requirements of Culpability. Except as provided in 2.05 a person is not guilty of an offense unless he acted purposely, knowingly, recklessly, or negligently, as the law may require, with respect to a material element of the offense. ii. Kinds of Culpability Defined. 1. Purposely. A person acts purposely with respect to a material element of an offense when: a. If the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and b. If the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist. g. Conditional Intent i. People v. Conners (union case, handout)—the specific intent charged is the gist of the offense and must be proven as charged in the indictment. The intent must be ACTUAL not CONDITIONAL, especially not conditioned upon non compliance with a proper demand. If the threatened injury, coupled with the present ability to inflict it, is conditioned upon the party assailed refusing to do something which the assailant has NO RIGHT to require him to do, it will constitute an assault even though the conditions are complied with and therefore no violence is used. ii. MPC 2.02(6)—Requirement of Purpose Satisfied if the Purpose is Conditional. When a particular purpose is an element of an offense, the element is established although the purpose is conditional, unless the condition negatives (eliminates) the harm or evil sought to be prevented by the law defining the offense. (CB 743) h. State of Mind i. Common Law: State v. Beale (sale of stolen goods case, CB 683) 1. Majority—SUBJECTIVE TEST: the gist of the offense is the defendant’s state of mind…and not what, under like circumstances, might be the state of mind of some other person. The statute does not punish one too dull to realize his offense. 2. Minority—OBJECTIVE TEST: response to difficulty of ascertaining defendant’s true state of mind. The circumstances must have that affect upon his mind, to constitute knowledge by him. 3. The very essence of the criminal offense is the intentional wrongdoing of the defendant so that the defendant himself must know that he is doing wrong. ii. MPC 2.02(2)(b) Knowingly. A person acts knowingly with respect to a material element of an offense when: 1. if the element involves the nature of his conduct or the attendant circumstances, he is aware that is conduct is of that nature or hat such circumstances exist, and 2. The element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result. iii. MPC 2.02(7) Requirement of Knowledge Satisfied by Knowledge of High Probability. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist. i. Strict Liability i. Malum prohibitum offenses are not true crimes and the normal mens rea requirement of crime does not attach. They are enforced on the basis of strict liability unless the particular statute or ordinance adds some limitation. ii. The Queen v. Stephens (rubbish in river case, handout)—inasmuch as the object of the indictment is not to punish the defendant, but really to prevent the nuisance from being continued, I think that the evidence which would support a civil action would be sufficient to support an indictment. iii. Commonwealth v. Olshefski (truck weight violation case, CB 707)—in statutory crimes, which are simply mala prohibita, the mental element is not necessary for the commission of the crime, and one who does an act in violation of the statute and is caught and prosecuted, is guilty of the crime irrespective of his intent or belief. iv. Commonwealth v. Koczwara (employee violates liquor code case, CB 720)—allowable to carry over strict liability to respondent superior cases where there is a light monetary fine, however, criminal responsibility in cases involving true cries is unthinkable. Liability for true crimes, wherein an offense carries a jail sentence, must be based exclusively on personal causation. j. Ignorance or Mistake i. Mistake of Law 1. Presumption of knowledge of the law is rebuttable in a prosecution for an offense requiring a specific intent. 2. General rule is that ignorance is only a defense in specific intent crimes 3. State v. Cude (CB 835)—It is fundamental that an essential element of larceny is the intent to steal the property of another. Consequently, if there is any reasonable basis in the evidence upon which the jury could believe that the accused thought he had a right to take possession of is automobile, or if the evidence in that regard is such that it might raise a reasonable doubt that he had the intent to steal, then the issue should be presented to the jury. 4. Commonwealth v. Benesch (handout)—to constitute criminal intent necessary to establish a conspiracy there must be both knowledge of the existence of the law and knowledge of its actual or intended violation. Criminal intent, defendants knowledge of the illegal element, is necessary for conspiracy to commit a malum prohibitum offense. 5. Lambert v. California (CB 843)—A law which punished conduct which would not be blameworthy in the average member of the community would be too severe for the community to bear. Defendant’s failure to register was wholly passive and she has had not received proper notice of the statutory requirement to register. ii. MPC (CB 846). 2.04 Ignorance or Mistake. 1. Ignorance or mistake as to a matter of fact or law is a defense if: a. The ignorance or mistake negatives the purpose, knowledge, belief, recklessness, or negligence required to establish a material element of the offense, or b. The law provides that the state of mind established by such ignorance or mistake constitutes a defense. 2. Although ignorance or mistake would otherwise afford a defense to the offense charged, the defense is not available if the defendant would have been guilty of another offense had the situation been as he supposed. In such cases, however, ignorance or mistake of the defendant shall reduce the grade or degree of the offense of which he may be convicted to those of the offense of which he would have been guilty had the situation been as he supposed. 3. A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when: a. The statute or other enactment defining the offense is not known to the actor and has not been published or otherwise reasonably made available prior to the conduct alleged; or b. He acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in (i) a statute or other enactment; (ii) a judicial decision, judgment, or opinion, (iii) an administrative order or grant of permission, or (iv) an official interpretation of the public officer or body charged by law with responsibility for interpretation, administration or enforcement of the law defining the offense. 4. The defendant must prove a defense arising under subsection 3 of this section by the preponderance of the evidence. iii. 2.02(9) Culpability as to Illegal Conduct (CB 846). Neither knowledge nor recklessness or negligence as to whether conduct constitutes an offense or as to the existence, meaning or application of the law determining the elements of an offense, unless the definition of the offense or the Code so provides. iv. Ignorance or Mistake of Fact 1. Defense of mistake of fact is comprised of three elements: a. Mistake must be honest and reasonable b. Mistake must be about a matter of fact c. The mistake must serve to negate he culpability required for the offense 2. The King v. Ewart—Three classes of required mens rea: a. Those in which either from the language or scope and object of the enactment to be construed, it is made plain that the legislature intended to prohibit the act absolutely, and the question of the existence of a guilty mind is only relevant for the purpose of determining the quantum of the punishment for the offense (strict liability) b. Those in which, following the common law rule, a guilty mind must either be necessarily inferred from the nature of the act done or established by independent evidence (independent proof of mens rea) c. Those is which, although from the omission from the statute of the words knowingly or willful is not necessary to aver in the indictment that the offense charged was knowingly or willfully committed, or to prove a guilty mind, and the commission of the act in itself prima facie imports an offense, yet the person charged may still discharge himself by proving to the satisfaction of the tribunal that he had not a guilty mind. (rebuttable presumption) 3. When the act is proved to have been done by the accused, if it be an act in itself unlawful, the law in the first instance presumes it to have been intended, and the proof of justification or excuse lies on the defendant to overcome this legal and natural presumption (People v. Vogel, bigamy case, handout) 4. Mistake of age— a. Common Law—sometimes reasonable mistake valid defense (People v. Hernandez) but in the majority of states it is not (People v. Cash) b. MPC 213.6 (CB 858). Provisions Generally Applicable to sexual offenses Mistake as to age. Whenever in this article the criminality of conduct depends on a child’s being below the age of 10, it is no defense that the actor did not know the child’s age, or reasonably believed the child to be older than 10. When the criminality depends on the child’s being below a critical age other than 10, it is a defense for the actor to prove by a preponderance of the evidence that he reasonably believed the child to be above the critical age. c. MPC 230.1 (CB 859). Bigamy and Polygamy. XII. Concurrence of Act and State of Mind a. Commonwealth v. Cali—even though the fire was started accidentally, the insured formed the intent to defraud the insurance company after the fire had started and thus did not take steps to extinguish the fire. This is sufficient concurrence between mens rea and actus reus. b. Jackson v. Commonwealth—the mens rea led to the series of events that culminated in the death of the victim. It does not matter that the defendants thought the victim was dead when the decapitated her. They had previous intent to kill her. XIII. Inchoate Crimes a. Conspiracy i. US v. Figuredo: Wharton’s Rule. you can not charge conspiracy to commit a crime that necessarily involves the participation of two or more people. Redundant to charge them for both. The punishment for conspiracy is already bundled into the elements of the substantive crime. Charging them for conspiracy doubles the punishment in a way unintended by the legislature. Exception to Wharton’s rule: 1. When the offense could have been committed by one of the conspirators alone 2. When the concerted action was not logically necessary, even though as a practical matter the offense could not be committed without cooperation 3. When those whose cooperation is necessary for the commission of the substantive crime conspire with another person to commit the offense, are all guilty of conspiracy. The defendants in the adultery case add someone who is playing a logically unnecessary role in the crime, which is an added evil. ii. Where a statute provides that corroboration among a certain number of persons is necessary to constitute guilt, and persons in excess of the statutory requisite number are charged, application of Wharton’s rule shall be based on the nature of the excess collaborators rather than the number of conspirators alone…were they necessary conspirators? iii. Gebardi v. US (CB 516)—persons committing a crime in which one of them statutorily exempted from committing can not be convicted of a conspiracy to commit that crime. iv. US v. Falcone (handout)—two views of sale of goods used in illegal manufacture: (1) seller is guilty if he had notice that the goods would be used for an illegal purpose. (2) In order to be a conspirator, the seller must do an act in furtherance of the conspiracy, not merely sell the goods with knowledge of how they might be used. v. Pinkerton v. United States (CB 527-8): The unlawful agreement contemplated precisely what was done. It was formed for the purpose. The act was done in execution of the enterprise. The rule which holds responsible one who counsels, procures, or commands another to commit a crime is founded on the same principle. That principle is recognized in the law of conspiracy when the overt act of one partner in crime is attributable to all. Act must be reasonably foreseeable. vi. MPC 5.03 Criminal Conspiracy. (CB 538-9) 1. Definition of Conspiracy. A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he: a. Agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or attempt or solicitation to commit such a crime; or b. Agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such a crime. 2. (5) Overt Act. No person may be convicted of conspiracy to commit a crime, other than a felony of the first or second degree, unless an overt ct in pursuance of such conspiracy is alleged and proved to have been done by him or by a person with whom he conspired. b. Attempt i. Test: If the defendant had accomplished everything he had intended to do, would he defendant have been guilty of a crime. If no, then not guilty of an attempt. ii. Wilson v. State (forgery case, handout)—in order to constitute the crime, there must not only be the intent to commit it, but also an act of alteration done to a material part, so that the injury might result. iii. People v. Paluch (handout, attempted barbery case)—A person commits an attempt when, with the intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense. Two elements must be present to constitute an attempt: 1. an intent to commit the specific offense and 2. an act which is a substantial step towards its commission The distinction between preparation and the attempt is largely a matter of degree. The crux of the determination of whether the acts are sufficient to constitute an attempt really is whether, when given the specific intent to commit an offense, the acts taken in furtherance thereof are such that there is a dangerous proximity to success in carrying out the intent. Mere preparation to commit a crime does not constitute an attempt to commit it. There must be acts which constitute substantial steps towards the commission of that offense.

The degree of proximity to the actual commission of the crime necessary for there to be an attempt is, in part, determined by the apprehension which the particular crime is calculated toe excite. The greater the apprehension, the greater the likelihood that a would be offender will not follow through with his intended plans. iv. People v. Rizzo (CB 462) 1. An act, in order to be a criminal attempt, must be immediately, and not remotely, connected with and directly tending to the commission of an offense. 2. An act done with intent to commit a crime, and tending but failing to effect its commission, is an attempt to commit that crime. Tending means to exert activity in a particular direction. 3. An overt act is one done to carry out the intention, and it must be such as would naturally effect that result, unless prevented by some extraneous cause. 4. Test: If it had not been for the interference, how likely is it that the crime would have been committed? If it was not very likely then they are not guilty of attempt v. People v. Mitchell (CB 741)—the fact that it is not possible for the defendant to complete the crime is not a defense to the attempt to commit the crime. Neither allegation or proof of the capability to commit the crime is necessary to constitute an attempt to commit the crime. If the defendant had accomplished everything he had intended to do, would he be guilty of the completed crime? If the answer is no, then no attempt. If yes, examine the issue of dangerous proximity. vi. People v. Rojas (CB 472)—consider whether the defendants are guilty of an attempt before the intervening impossibility occurs. vii. Preddy v. Commonwealth (CB 482)—attempted rape when a man intends to rape a female but finds himself impotent. Impotency may be a defense where statutorily made so (VA law regarding boys under 14), but otherwise is not. viii. Impossibility will not be a defense when the defendant had gone far enough in an attempt even prior to what rendered completion of the act impossible. CONSIDER LEGAL VS. FACTUAL IMPOSSIBILTY, however distinction may not be definitive. ix. MPC 5.01 Criminal Attempt (CB 490) c. Solicitation i. MPC 5.02 (p. 491) ii. State v. Blechman 1. Solicitation is a substantive crime in itself. 2. Solicitation falls short of an attempt to commit the offense solicited 3. One who counsels, incites, or solicits another to commit a felony, is indictable as a principle or an accessory before the fact, if the designed felony is accomplished, depending upon his presence and participation or absence at the time of its commission. d. Abandonment i. Stewart v. State (CB487)—once an intent to commit a crime has been formed and overt acts toward the commission of that crime have been committed b a defendant he is then guilty of an attempt, whether he abandoned that attempt because of the approach of other persons or because of a change in his intentions due to a stricken conscience. ii. State v. Peterson (arson solicitation case, CB 488)—One who has procured, counseled or commanded another to commit a crime may withdraw before the act is done and avoid criminal responsibility by communicating the fact of his withdrawal to the party who is to commit the crime iii. MPC 5.01(4), 5.02(3), 5.04, 5.05 (CB 490-492) iv. MPC 5.03(6) (CB 539) Renunciation of Criminal Purpose. It is an affirmative defense that the actor, after conspiring to commit a crime, thwarted the success of the conspiracy under circumstances manifesting a complete and voluntary (see CB 491) renunciation of his criminal purpose. XIV. Parties to Crime a. State v. Williams—one cannot become an accessory after the fact to a felony until such a felony has become an accomplished fact. b. MPC 2.06 Liability for the conduct of another; Complicity (CB 568) c. Commonwealth v. Law— d. The King v. Richardson

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