Essential Supplements for Success in Crim Law:

1L Law School Criminal Law outline based on the following books:

I.Purposes and Policies Behind the MPC/Criminal Statues

Legality (three elements):
1. criminal statutes should be understandable to reasonable law-abiding persons
2. criminal statutes should be crafted so as not to delegate basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis
3. judicial interpretation of ambiguous statutes should be biased in favor of the accused.
4. Example: Keeller case – beat the fetus in his wife, cannot be punished b/c the law did not treat killing a fetus as murder.
MPC Section 1.02 Purposes; Principles of Construction (Policy Considerations behind the Code)

The general purposes of the provisions governing the definition of offenses are:
1. To forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interest
2. To publicly control persons whose conduct indicates a disposition to commit crimes
3. To safeguard conduct that is faultless from being condemned as criminal
4. To give fair warning of the nature of the conduct declared to constitute an offense
5. To differentiate on reasonable grounds between serious and minor offenses
Purposes behind sentencing and Treatment of Offenders
1. To prevent the commission of offenses (utilitarian)
2. To promote the correct and rehabilitation of the offenders (rehabilitative/utilitarian)
3. To safeguard offenders from excessive, disproportionate, arbitrary punishment (retributive)
4. To give fair warning of the nature of the sentences that many be imposed on conviction (utilitarian/retributive)
5. To differentiate among offenders by giving them individualized and just treatment (retributive)
6. To make all agencies involved uniform in function and effect (police, etc) (utilitarian)
7. To advance the use of generally effective scientific methods and knowledge in the sentencing and treatment of offenders (rehabilitative/utilitarian)
8. To integrate the responsibility for the administration of the correctional system and the state department of correction
When the provisions are ambiguous, vague, or unclear interpret them with the purposes of the section describing the offense or defense and this section

II.Burden of Persuasion

Prosecutors have the burden to prove every element of a crime beyond a reasonable doubt
1. In certain circumstances the legislature may allocate to the D the burden of persuasion regarding “facts not formerly identified as elements of the offense charged”
2. Prosecutor has the burden of production regarding the elements of an offense, it is not required to disprove an affirmative defense unless there is evidence supporting the defense.
3. In regards to the burden of persuasion prosecutor must prove every element of an offense beyond a reasonable doubt, element includes anything that negatives an excuse or justification.
D have to prove their affirmative defenses by a preponderance of the evidence
1. Prosecution has to disprove any defense by defendant that has satisfied her burden of production.
The challenge is in deciding if a particular fact relates to an element of the crime or an affirmative defense
1. A jury can take evidence from the D that pertains to both the element of a crime and the proof of an affirmative defense
Presumptions
1. Presumptions are when the prosecutors prove fact A, then fact B (usually an element of a crime) is either mandatory or permissive
2. Mandatory irrebuttable presumptions are unconstitutional
3. Permissive presumptions are constitutional, but the link must be rational
  1. A link is rational if, but only if, presumed fact more likely than not flows from the proven fact
MPC: Section 1.12 Proof Beyond a Reasonable Doubt; Affirmative Defense; Burden of Proving Fact When Not an Element of an Offense; Presumptions

Each element of an offense must be proved beyond a reasonable doubt
1. Prosecution does not have to disprove an affirmative defense unless and until there is evidence supporting such defense; or
2. If affirmative defense requires the defendant to prove beyond a preponderance of evidence
Affirmative defenses under (2)(a):
1. Arises under a section of the Code which so provides; or
2. It relates to an offense defined by a statute other than the Code and such statute so provides; or
3. It involves a matter of excuse or justification peculiarly within the knowledge of the defendant on which he can fairly be required to adduce supporting evidence
When the application of the Code depends upon the finding of a fact which is not an element of the offense, unless the Code otherwise provides:
1. The burden of probing the fact is on the prosecution or defendant, depending on whose interest or contention will be furthered if the finding should be made; AND
2. The fact must be proved to the satisfaction of the Court or jury
Consequences of a presumption with respect to any fact which is an element of an offense:
1. When there is evidence of the facts which give rise to the presumption, the issue of the existence of the presumed fact must be submitted to the jury, unless the Court is satisfied that the evidence as a whole clearly negatives the presumed fact; AND
2. When the issue of the existence of the presumed fact is submitted to the jury, the Court shall charge that while the presumed fact must, on all the evidence, be proved beyond a reasonable doubt, the law declares that the jury may regard the facts giving rise to the presumption as sufficient evidence of the presumed fact

ELEMENTS OF AN OFFENSE
1. Actus Reus Requirement: voluntary act or omission must cause social harm
  1. Actus reus includes three ingredients of a crime (1) voluntary act (2) that causes (3) social harm
    1. Voluntary act
      1. Any willed physical or mental act, prosecution may have permissive presumption that act was voluntary and D has burden of production that act was not voluntary
        
        An “act” is a muscle contraction
        
        Habitual acts are voluntary
        
        Multiple personalities is no excuse
        
        Voluntary act is an element of a crime, not an affirmative defense
      2. Modern courts usually treat it as an implicit element of a criminal statute
      3. Usually a person is not guilty of a crime unless her conduct includes a voluntary act
      4. Time framing (arguably an exception to the requirement)
        
        Involuntary acts can satisfy the requirement if the time frame is expanded to include a voluntary act
        
        Example: person with epileptic seizures voluntarily choosing to drive her car
    2. Status offenses
      1. Some conduct by the defendant is required
      2. The Supreme Court has no looked kindly upon status offenses. It invalidated a typical vagrancy law on the ground that it was unduly vague and a California addiction statute that violated the cruel and unusual punishment law.
      3. Very likely any statute that punishes an individual for the mere propensity to act will violate the constitution
    3. Crime of possession
      1. These are inchoate or incomplete offenses
      2. Mere passive possession is all that is required to be guilty
      3. Possession crimes do not necessarily dispense with the voluntary act requirement
        
        Courts interpret possession statutes to require proof that D knowingly procured or received the property possessed or that she failed to dispossess herself of the object, after she became aware of its presence
    4. Omission
      1. General rule: NO DUTY TO PREVENT HARM
      2. Common law duty to act
        
        When there is a common law duty to act, D’s omission (failure to act), assuming that she was physically capable of performing the act, serves as a substitute for a voluntary act
        
        When there is a duty to act:
        
        Status relationship
        
        Parent to child
        
        Husband and wife
        
        Master to servant
        
        Employer to employee
        
        Contractual obligation
        
        Implied or express contract
        
        Babysitter
        
        Omission following an act
        
        Creation of a risk
        
        A person who wrongfully, or perhaps innocently, harms another or her property, or who places a person or her property in jeopardy of harm, has a common law duty to aid the injured or endangered party
        
        Voluntary assistance
        
        One who voluntarily commences assistance to another in jeopardy has a duty to continue to provide aid, at least if a subsequent admission would put the victim in a worse position than if the actor had not initiated help
        
        Statutory duty
        
        Beyond common law, some statute require action
        
        Examples
        
        Paying taxes
        
        Feeding your children
        
        Stopping after a car accident
        
        MPC does not differ significantly from the common law
        
        Barber approach to medical issues
        
        Whether the proposed was proportionate in terms of the benefits to be gained versus the burden caused
        
        Example: Irreversible coma, any pain at all would be unacceptable, so the patient’s families decide.
  2. MPC: Section 2.01 Requirements of Voluntary Act; Omission as Basis of Liability; Possession as an Act

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
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
Liability for the commission of an offense may not be based on an omission unaccompanied by action unless:
1. The omission is expressly made sufficient by the law defining the offense; or
2. A duty to perform the omitted act is otherwise imposed by law
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

Mens Rea Requirement
1. Old School Meaning: sufficient that D committed the proscribed acts in a manner that demonstrated his bad character, malevolence, or immorality
2. Narrow Meaning (Modern): The particular mental state provided for in the definition of an offense
3. Common Law
  1. Intentionally, a person intentionally causes a social harm of an offense if:
    1. it is his desire
    2. he acts with knowledge that a social harm is virtually certain to occur as a result of his conduct

not satisfied if it is merely highly probable, short of a miracle it will happen is required
it is insufficient that he should have been aware

Willfully
1. Sometimes used as a synonym for intentional
2. Sometimes used to mean “an act done with a bad purpose”
Knowingly or with knowledge
1. Sometimes knowledge of an attendant fact is required (i.e. knowing that one has pot in the car)
2. Willful blindness or deliberate ignorance can also impute knowledge
  1. This requires the actors knowledge be highly probable
Malice
1. In most circumstances a person acts with malice if he intentionally or recklessly causes the social harm
Recklessness
1. A more unjustifiable risk than criminal negligence which is more unjustifiable than civil negligence or
2. Today’s definition: recklessness requires proof that the actor disregard a substantial and unjustifiable risk for which he was aware
Negligence
1. A person’s conduct is negligent if it constitutes a deviance from the standard of care that a reasonable person would have observed in the actor’s situation. Conduct constitutes such a deviant, if the actor takes an unjustifiable risk causing harm to another.
  1. First factor: gravity of harm
  2. Second factor: probability of the harm occurring
  3. Third factor: burden on D
2. Civil vs. Criminal negligence
  1. Criminal negligence requires a GROSS deviation from the reasonable standard of care. A person is criminally negligent if he takes a SUBSTANTIAL unjustifiable risk
  2. Civil negligence merely requires ANY deviation from the reasonable standard of care. A person is civilly negligent is he takes ANY unjustifiable risk
General Intent
1. Historically any offense for which the only mens rea required was a blameworthy state of mind (ANY culpable mental state intentional to negligent)
Specific Intent
1. Historically meant to emphasize that the definition of the offense expressly required proof of a particular mental state
2. Many courts now say that the crime requires proof that the actors conscious object, or purpose, is to cause the social harm set out in the definition of the offense
Transferred Intent is allowed in common law
1. Exception: a statute that is person specific

MPC: Section 2.02 General Requirements of Culpability MENS REA REQUIREMENT

Minimum requirements of culpability: Except as provided in Section 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 each material element of the offense
Culpability defined:
1. Purposely: a person acts purposely with respect to a material element of an offense when:
  1. 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
  2. If the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes they exist
    1. Conscious object of actor
    2. Can be conditional [MPC 2.02(6)]
2. 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 his conduct is of that nature or that such circumstances exists; AND
  2. If the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result
    1. Belief in a practical certainty
3. Recklessly: 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 actor’s 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 in the actor’s situation
  1. Substantial and unjustifiable risk – matter of law not a matter of D’s own characterization
  2. God’s eye view of risk
4. Negligently: 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 and 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
Culpability required unless otherwise provided. When culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts purposely, knowingly, or recklessly with respect thereto
Prescribed culpability requirement applies to all material elements
Substitutes for Negligence, Recklessness and Knowledge: if a higher culpability is found it can substitute for the lower culpability required for the offense
Requirement of purpose satisfied if purpose is conditional: when a particular purpose is an element of an offense, the element is established although such purpose is conditional, unless the condition negatives the harm or evil sought to be prevented by the law defining the offense
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
Requirement of willfulness satisfied by acting knowingly: a requirement that an offense be committed willfully is satisfied if a person acts knowingly with respect to the material elements of the offense, unless a purpose to impose further requirements appears
Culpability as to illegality of conduct: doesn’t exist unless prescribed by the Code

(10)Culpability as determinant of grade of offense – based on the culpability of the offense…lowest negligence, etc

Strict Liability
1. Mens rea is not constitutionally required, but there is a statutory presumption of a mens rea element for federal statutes if one is not written into the code. (5 years in prison was OK)
  1. For state laws a lack of a mens rea requirement is ok, but the mere absence does not mean there isn’t one – one will be construed
  2. CA law was struck down because it didn’t give adequate notice to felons that they had to register with a county
2. Factors that make strict liability ok:
  1. That the statutory crime is not derived from the common law
  2. That there is an evident legislative policy that would be undermined by a mens rea requirement
  3. That the standard imposed by the statute is reasonable and adherence thereto is properly expected of a person
  4. That the penalty is small
  5. That conviction does not greatly besmirch
3. Generally the MPC requires mens rea except for violations and enumerated offenses
  1. Violations are offenses that cannot result in imprisonment or probably, but may result in fines
    1. Public welfare offenses not necessarily immoral but dangerous (i.e. traffic violations, food & drug regulations):

Mallum prohitibum – bad b/c it is prohibited. Bad only b/c we made it a crime
Usually involve very little penalty for offense
Conviction for PWO won’t usually stigmatize the individual
No mens rea requirement
Punishment unrelated to desert

Statutory rape

MPC: Section 2.05 When Culpability Requirements Are Inapplicable to Violations and to Offenses Defined by Other Statutes; Effect of Absolute Liability in Reducing Grade of Offense to Violation STRICT LIABILITY

The requirements of culpability prescribed in Section 2.01 and 2.02 do not apply to:
1. Offenses which constitute violations, unless the requirement involved is included in the definition of the offense or the Court determines that its application is consistent with effective enforcement of the law defining the offense; or
2. Offenses defined by statutes other than the Code, insofar as a legislative purpose to impose absolute liability for such offenses or with respect to any material element thereof plainly appears
Notwithstanding any other provision of existing law and unless a subsequent statute otherwise provides:
1. When absolute liability is imposed with respect to any material element of an offense defined by a statute other than the Code and a conviction is based upon such liability, the offense constitutes a violation; and
2. Although absolute liability is imposed by law with respect to one or more of the material elements of an offense defined by a statute other than the Code, the culpable commission of the offense may be charged and proved, in which event negligence with respect to such elements constitutes sufficient culpability and the classification of the offense and the sentence that may be imposed therefore upon conviction are determined by Section 1.04 and Article 6 of the Code.

Causation:
1. Cause in Fact (seeks only to eliminate actors)
  1. But for test: but for D’s voluntary act(s), would the social harm have occurred WHEN IT DID
  2. Need only be A cause not necessarily THE cause
  3. Conditions surrounding the crime that are but for cause, but are normal events or circumstances are NOT causes in fact
2. Multiple Actual Causes:
  1. If two actors are both causes in fact of a crime then both may be properly described as causes in fact
  2. Acceleration of a result: you can be guilty of murder if all you do is accelerate death; even by seconds
  3. Concurrent Sufficient Causes:
    1. You can use a substantial factor test to avoid a wrong result
    2. Better way is to use “but for” but add that the social harm occurred when AND AS IT DID
  4. Obstructed causes:
    1. Attempt is then used
3. Proximate Cause:
  1. Direct cause: an act that is a direct cause of social harm is also a proximate cause of it
  2. Six Factors:
    1. De minimis contribution to the social harm: a D’s causal responsibility for ensuing harm is insubstantial in comparison to that of an intervening cause
      1. i.e. knocking someone over before lightening strikes them dead
      2. this will not lead to liability
    2. Foreseeability of the intervening cause: according to some courts the linchpin of proximate causation is whether the intervening party’s act were reasonably foreseeable
      1. Responsive (dependant) intervening causes: an act that occurs in reaction or response to the D’s prior conduct.
        
        Generally speaking, this does not relieve the initial wrongdoer of responsibility, unless the response was highly abnormal or bizarre
      2. Coincidental (independent) intervening causes: is a force that does not occur in response to the initial wrongdoers conduct
        
        The only relationship between D’s conduct and the intervening cause is that the D placed the victim in a situation where the intervening cause could independently act upon him
      3. Common law rule of thumb: that coincidental intervening causes relieve the original wrongdoer of criminal responsibility, unless the intervention was foreseeable
    3. Intended consequences doctrine: intended consequences can never be too remote
      1. If you meant to set a house on fire, but it was a rat that caught on fire and lit the fuse – then you are guilty
    4. Dangerous forces that come to rest: if a D’s active force has come to rest in a position of apparent safety, the court will follow it no longer
    5. Free, deliberate, informed human intervention: A D is far more apt to be relieved of criminal responsibility in the case of a free deliberate and informed intervening human agent than in case of intervention of a natural force
    6. Omissions: an omission will rarely, if ever, serve as a superseding intervening cause
Concurrence of Elements:
1. Implicit in the commission of a crime is the concurrence of the actus reus and the mens rea
  1. First, there must be temporal concurrence
    1. That is, the D must possess the requisite mens rea at the same moment that her voluntary conduct or omission causes the social harm
      1. i.e. not guilty if A decides to kill B and then abandons that plan, but later A kills B accidentally
  2. Second, there must be motivational concurrence
    1. That is, even if the mens rea and actus reus temporally concur, the relationship between the two must be more than coincidental
      1. i.e. not guilty if A accidentally kills B and then A decides that she is happy she killed B
2. There are cases where the temporal requirement gets hazy or dispensed with altogether
  1. i.e. A hits B accidentally with her car and then drags him with the car. The court could not show that the dragging caused the death and therefore not guilty of manslaughter
  2. i.e. A hits B over the head and then thinking that B is dead decapitates him. The decapitation is what killed him, but court dispenses with the temporal requirement and convicts of murder

III.Mistake of Fact or Law

Mistake of Fact
1. Common Law Approach:
  1. Specific intent crimes: a mistake of fact is exculpatory if it negates the particular elements of mens rea in the definition of the offense
  2. General intent crimes: the jurist sought to determine if the actor’s mistake negated his moral culpability
2. Strict Liability:
  1. Under no circumstances does a person’s mistake of fact negate his criminal responsibility for violating a strict-liability offense
3. Specific intent offenses:
  1. A D is not guilty of an offense if his mistake of fact negates the specific intent portion of the crime
  2. It does not matter that the D’s mistake in these cases may have been unreasonable
4. General intent offenses:
  1. Ordinary rule is that a person is not guilty of a general-intent crime if his mistake of fact was reasonable, but he is guilty if his mistake was unreasonable
5. Moral Wrong Doctrine:
  1. One can make a reasonable mistake regarding the attendant circumstances and yet manifest a bad character or otherwise demonstrate worthiness of punishment. There should be no exculpation for mistake, where, if the facts had been as the actor believed them to be his, his conduct would still be immoral
6. Legal Wrong Doctrine:
  1. D is guilty of a criminal offense X, despite a reasonable mistake of fact, if he would be guilty of a different albeit less serious crime Y if the situation were as he supposed
Mistake of Law
1. General Rule: subject to three exceptions the Common Law rule is straightforward: ignorance of the law excuses no one
2. Exceptions: three categories of mistake of law are recognized:
  1. Reasonable Reliance:
    1. A person is not excused for committing a crime if she relies on her own erroneous reading of the law, even if a reasonable person, even a law trained person, would have made the same mistake
    2. A person IS excused for committing a criminal offenses if she reasonably relied on an official statement of the law later determined to be erroneous
    3. For a statement of law to be official it must:
      1. Be contained in a statue later declared invalid
      2. A judicial decision of the highest court in the jurisdiction, later determined to be erroneous
      3. Or an official, but erroneous interpretation of the law secured from a public officer in charge of its interpretation.
        
        i.e. AG ok to interpret but local prosecutor not ok
      4. Reliance on erroneous advice provided by a private attorney is not a defense to a crime
  2. Fair Notice:
    1. A person who is unaware of a duly enacted and published criminal statute may successfully assert a constitutional defense in prosecution of that defense
      1. Actual knowledge of the duty to register or proof of the probability of that knowledge is required
    2. Three factors to determine unconstitutionality:
      1. It punishes an omission
      2. The duty to act was imposed on the basis of status
      3. The offense was malum prohibitum
  3. Different Law Mistake: claimed mistake relates to a law other than the criminal offense for which the D has been charged
    1. Specific intent: if the mistake negates the specific intent mens rea of the offense
    2. General intent: probably not a defense
    3. Strict liability: not a defense
MPC: Section 2.04 Ignorance or Mistake

Ignorance or mistake as to a matter of fact or law is a defense if:
1. The ignorance or mistake negatives the purpose, knowledge, belief, recklessness, or negligence required to establish a material element of the offense; or
2. The law provides that the state of mind established by such ignorance or mistake constitutes a defense

Not really a defense but a negation of mens rea – D has burden of production

The defense is NOT a defense if the defendant would be guilty of another offense had the situation been as he supposed. In such case, however, ignorance of mistake of the defendant shall reduce the grade and degree of the offense of which he may be convicted to those of the offense of which he would be guilty had the situation been as he supposed
A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when:
1. 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
2. He acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in:
  1. A statute or other enactment
  2. A judicial decision, opinion or judgment
  3. An administrative order or grant of permission; or
  4. An official interpretation of the public office or body charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offense
The defendant must prove a defense arising under Subsection (3) by a preponderance of evidence

IV.Complicity: Liability for the Acts of Others

General Rules:
1. Definition of an accomplice: S is an accomplice with P in the commission of an offense if S intentionally assists P to engage in conduct that constitutes the crime
  1. Assist: aiding, abetting, encouraging, soliciting, advising, procuring the commission of an offense
2. Derivative liability
  1. P’s act become S’s act and S maybe convicted of any offense committed by P with S’s intentional assistance
Common Law Terminology:
1. Principal
  1. Principal in the 1^st degree: is the person who with the mens rea required for the commission of the offense either
    1. Physically commits acts that constitute the offense OR
    2. Commits the offense by the use of an innocent instrumentality or innocent human agent
      1. Innocent instrumentality rule: provides that a person is the principal in the 1^st degree if, with the mens rea required, he uses a nonhuman agent OR
      2. non-culpable human agent to commit the crime
        
        Some actions can’t be don’t through an agent; perjury, carnally knowing another, and marriage
  2. Principal in the 2^nd degree: one who is guilty of an offense by reason of having intentionally assisted in the commission thereof in the presence, either actual or constructive, of the principal of the 1^st degree
2. Accessory
  1. Accessory before the fact: same as a principal in the 2^nd degree, but is not there. Often one who solicits, counsels, or commands (short of coercing)
  2. Accessory after the fact: one, with knowledge of another’s guilt, intentionally assists the guilty party to avoid arrest, trial, or conviction
    1. Traditionally accessory after the fact met you were guilty of the original felony, now it is a lesser crime
3. Accomplice
  1. Definition: accomplice is a person who, with the requisite mens rea, assists the primary party in committing an offense
  2. Physical conduct: the most straightforward case of assistance involves physical conduct
    1. Furnishing principle with instrumentality
    2. Casing the scene
    3. Looking the door from keeping victim from escaping
    4. Driving a getaway car
  3. Psychological influence: occurs when S incites, solicits, or encourages P
    1. Presence, even when coupled with a private determination not to interfere or passive acquiescence is insufficient to convict as an accomplice
    2. Presence at the scene, coupled with the hidden intent to aid if necessary is also not enough
    3. Presence coupled with very little else will convict
  4. Assistance by omission: must have a duty to intervene
  5. Amount of assistance required:
    1. Accomplice must actually assist in the commission of the crime, otherwise common law lets him off
    2. Any aid no matter how trivial is sufficient
  6. Doctrine of causation: a secondary party is accountable for the conduct of the primary party
  7. Mens Rea: intent is needed
    1. Dual intents:
      1. Intent to assist the primary party AND
      2. Intent that the primary party commit the offense charged
    2. Feigning Accomplice
      1. It is almost always reasonable to infer that when a person intentionally assists another to engage in the commission of the offense, he does so because he wants the other person to succeed (like a presumption)
      2. Not always true with inchoate crimes
    3. Knowledge v. Intent
      1. Mixed case law as to whether S is guilty if he merely knows that P is going to do something and doesn’t share in the intent (purpose)
      2. Majority rule: not accomplice unless he shares in the criminal intent (purpose)
    4. Attendant Circumstances
      1. Good rule is that S should have the mens rea required by the substantive offense
  8. Recklessness/Negligent Crimes
    1. Majority rule: accomplice liability is allowed under these circumstances
    2. Some courts say that someone can’t be an accomplice in crime of recklessness or negligence
  9. Natural and Probable Consequences Doctrine
    1. Person encourage or facilitating the commission of a crime maybe held criminally liable not only for that crime, but any other offense that was a natural and probable consequence of the crime aided or abetted
4. Liability of the Secondary Party in Relation to the Primary Party
  1. General principles at Common Law: an accessory could not be convicted of the crime in which he assisted until the principal was convicted, and with the limited exception of criminal homicide, could not be convicted of a more serious offense or degree of an offense than the principal is convicted
    1. Still true that D cannot be convicted as an accomplice where the guilt of the principal has not be shown
      1. Check into example
    2. Exceptions:
      1. Justification: in the absence of wrongdoing by P, there is no crime to input on S
        
        i.e. P acts in self defense, justification carries
      2. Excuse: When P is acquitted on the basis of an excuse, like insanity, his acquittal should not bar successful prosecution of S
        
        The excuse does not transfer
      3. No mens rea of P: S can be guilty as an accomplice even though P does not have the requisite mens rea
        
        i.e. X convinces Y (who believes V is consenting) to have sex with X’s wife, V. V compelled by X to comply, X was guilty as an accomplice even though Y was not guilty of rape
5. Limits to Accomplice Liability
  1. Legislative Exemption Rule: a person may not be prosecuted as an accomplice in the commission of a crime if he is a member of a class person with whom the statute prohibiting the conduct was designed to protect
    1. i.e. statutory rape
  2. Abandonment: One who subsequently abandons a criminal endeavor can avoid accountability for the subsequent criminal acts of the primary part
    1. A spontaneous and unannounced withdrawal will not do, instead the accomplice must communicate his withdrawal to the principle and make bona fide efforts to neutralize the effect of his prior assistance
6. Conspiratorial Liability: Pinkerton Doctrine
  1. Accomplice vs. Conspiratorial Liability: An agreement between two people to participate in the commission of a crime is the key to a CONSPIRACY and therefore to conspiratorial liability, actual assistance in the crime is not required FOR ACCOMPLICE, proof is required that an actor at least indirectly participate in the crime, an agreement is not necessary
    1. Each type of liability is possible without the other
  2. A party to a conspiracy is responsible for any criminal act committed by an associated if it:
    1. Falls within the scope of the conspiracy OR
    2. Is a foreseeable consequence of the unlawful agreement
MPC: Section 2.06 Liability for Conduct of Another, Complicity

A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both
A person is legally accountable for the conduct of another person when:
1. Acting with the kind of culpability that is sufficient for the commission of the offense, he causes an innocent or irresponsible person to engage in such conduct; or
2. He is made accountable for the conduct of such other person by the Code or by the law defining the offense; or
3. He is an accomplice of such other person in the commission of the offense
A person is an accomplice of another person in the commission of the offense if:
1. With the purpose of promoting or facilitating the commission of the offense, he
  1. Solicits such other person to commit it; OR
  2. Aids or agrees or attempts to aid such other person in planning or committing it; or
  3. Having a legal duty to prevent the commission of the offense, fails to make proper effort so to do; or
2. His conduct is expressly declared by law to establish his complicity
When causing a particular result is an element of an offense, an accomplice in the conduct causing such result is an accomplice in the commission of that offense, if he acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense
A person who is legally incapable of committing a particular offense himself may be guilty thereof if it is committed by the conduct of another person for which he is legally accountable, unless such liability is inconsistent with the purpose of the provision establishing his incapacity
Unless otherwise provided by the Code or by the law defining the offense, a person is not an accomplice in an offense committed by another person if:
1. He is a victim of that offense; or
2. The offense is so defined that his conduct is inevitably incident to its commission; or
3. He terminates his complicity prior to the commission of the offense AND
  1. Wholly deprives it of effectiveness in the commission of the offense; or
  2. Gives timely warning to the law enforcement authorities or otherwise makes proper effort to prevent the commission of the offense
An accomplice may be convicted on proof of the commission of the offense and of his complicity therein, though the person claimed to have committed the offense has not been prosecuted or convicted or has been convicted of a different offense or degree of offense or has an immunity to prosecution or conviction or has been acquitted

Intoxication:
1. Definition: a disturbance of psychical or mental capacities resulting from the introduction of any substance into the body
  1. Voluntary intoxication: basically intoxication is voluntary if the actor is culpable for becoming intoxicated
    1. Alcoholism: Doesn’t change the calculus
    2. Now related to recklessness
  2. General Rules:
    1. No excuse: Courts commonly state that voluntary intoxication never excuses criminal conduct
      1. Exceptions:
        
        The person did not as a result of intoxication harbor the necessary mens rea
        
        Fixed insanity from long term intoxication
    2. Mens Rea:
      1. General Intent offense: Voluntary intoxication is not a defense to general intent offenses
        
        i.e. rape
      2. Specific Intent offense: Yes, it is a defense
        
        i.e. assault with the intent to rape
  3. Involuntary intoxication: 4 circumstances that are characterized as involuntary:
    1. Coerced intoxication:
      1. i.e. D a youth is told he will be left in the desert if he doesn’t consume alcohol
    2. Intoxication by innocent mistake:
      1. i.e. X fraudulently induces D to ingest cocaine by telling him it is a breath freshener
    3. Unexpected intoxication from prescribed medication:
      1. Requirement:
        
        D doesn’t know or has no reason to know that the medication will produce intoxicating effect
      2. Exception:
        
        If the actor takes more than the prescribed medication then the intoxication becomes voluntary
    4. Pathological intoxication:
      1. Temporary psychotic reaction often manifested by violence triggered by consumption of alcohol by a person with a predisposing mental or physical condition
      2. i.e. temporal lobe epilepsy, encephalitis, or a metabolic disturbance
      3. Defense only applies if actor had no reason to know of his susceptibility
  4. General Rule:
    1. An actor is entitled to acquittal in all circumstances in which voluntary intoxication is a defense
    2. There is exceedingly little case law but may excuse general intent offenses
    3. If the intoxication produces temporary insanity that satisfies the jurisdictional definition of insanity D could be acquitted
2. MPC: Section 2.08 Intoxication

Except as provide in Subsection (4), intoxication of the actor is not a defense unless it negates an element of the offense
When recklessness established an element of the offense, if the actor, due to self-induced intoxication, is unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial
Intoxication does not, in itself, constitute mental disease within the meaning of Section 4.01
Intoxication which
1. Is not self-induced OR
2. 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 (wrongfulness) or to conform his conduct to the requirements of law
Definitions: in this section unless a different meaning plainly is required:
1. Intoxication means a disturbance of mental or physical capacities resulting from the introduction of substances into the body;
2. Or self induced intoxication means intoxication caused by substances which the actor knowingly introduces into his body, the tendency of which to cause intoxication he knows or ought to now, unless he introduces them pursuant to medical advice or under such circumstances as would afford a defense to a charge of crime;
3. Pathological intoxication means intoxication grossly excessive in degree, given the amount of the intoxicant, to which the actor does not know he is susceptible

V.Duress

Elements:
1. Another person threatened to kill or grievously injure the actor or a third party (particularly a close relative)
2. The actor reasonably believes that threat was genuine
3. The threat was present, imminent and pending
4. There was no reasonable escape from the threat except through compliance with the demands of the coercer
5. The actor was not at fault at exposing herself to the threat
Homicide:
1. The Common Law rule is that duress is not a defense to an intentional killing
  1. A few states recognize an Imperfect Duress Defense that reduces it to manslaughter
2. Felony murder: there is a split of authority on this
Difference between MPC and CL:
1. MPC abandons the CL requirement that D’s unlawful act in response to an imminent deadly threat
2. Under the MPC D may plead duress as a result of non-deadly and non-imminent threat or even as a result of PRIOR use of non-deadly force as long as a person of reasonable firmness would have committed the same offense in D’s circumstances
  1. Time situation is a factor in regards to reasonable firmness
  2. If there is an unreasonable fear of harm then the defense of duress will not apply to reckless or negligent crimes
  3. Subjective standard – how it appeared to D is what mattered (person of reasonable person viewing it as D did)
3. MPC is of general applicability and can be applied to murder
4. MPC does not require that the imperiled person be a relative
Similarities between MPC and CL
1. Defense is limited to threats or use of “unlawful force”
2. Only threats to bodily integrity count – not included are threats to property or reputation
Escape from Intolerable Prison Conditions
1. CL requires that the coercer orders the person to commit a specified crime. The MPC also applies if the coercer’s use of unlawful forces causes the coerced party to perform a different criminal act
2. MPC also applies to prison breaks, if a person of ordinary firmness would try and escape an unlawful use of force
3. MPC provides that a coerced act may also be justified until §3.02, Choice of Evils provision.
MPC: Section 2.09 Duress

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 of the person of another, which a person of reasonable firmness in his situation would have been unable to resist
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
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
When the conduct of the actor would otherwise be justifiable under Section 3.02, this section does not preclude such defense

VI.Insanity

Competency to stand trial
1. General rule: A person is incompetent if during the criminal proceeding she:
  1. Lacks capacity to counsel with her attorney with a reasonable degree of rational understanding
  2. Lacks a rational as well as a factual understanding of the proceedings against her
2. Competency to stand trial is constitutionally required
Pre-trial assertion: Many states require defendant to provide the prosecutor with notice prior to trial of her intention to raise insanity as a defense.
Jury Verdicts: Not guilty, not guilty by reason of insanity, or guilty
1. NGRI: Means that the prosecution proved all of the elements of the crimes, including D’s mens rea beyond a reasonable doubt, but that the accused was insane at the time of the crime
Bi-furcated trial: Can split trial in two parts: 1) Elements of offense (traditional guilt or innocence) 2) Whether D was insane
Burden of Proof: Insanity is an affirmative defense
1. In federal court you must prove insanity by clear and convincing evidence standard and not just a preponderance of the evidence, no state requires beyond a reasonable doubt
Definition of Insanity: Five Tests
1. M’Naughten Rule
  1. A person is insane if at the time of her act she was laboring under such a defective reason, arising for a disease of the mind, that she:
    1. Did not know the nature and quality of the act that she was doing OR
    2. If she did know it, she was incapable of understanding the criminality of the action
2. Irresistible Impulse Test
  1. Broadens the scope of the M’Naughten Rule by allowing for an insanity defense for volitional control disorders
    1. She acted from a irresistible and uncontrollable impulse
    2. She lost the power to chose between right and wrong and to avoid doing the act in question as that her free agency at the time was destroyed OR
    3. D’s will has otherwise been destroyed to the point that her actions are beyond her control
    4. (unable to control his actions or conform his conduct to the law).
3. Durham or Product Standard
  1. A person is excluded if her unlawful act was a product of her mental disease or defect
4. Federal Test:
  1. A person is excused if she proves by clear and convincing evidence that at the time of the offense, as a result of SEVERE mental disease or defect that she wasn’t able to appreciate:
    1. The nature and the quality of her conduct OR
    2. The wrongfulness of her conduct
5. MPC: Section 4.01 Mental Disease or Defect Excluding Responsibility

A person is not responsible for criminal conduct if at the time of such conduct mental disease or defect causes him to lack substantial capacity to either appreciate the criminality [wrongfulness] of his conduct or conform his conduct to the requirements of law
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

Section 4.03 Mental Disease or Defect Excluding Responsibility is Affirmative Defense

Mental disease or defect excluding responsibility is an affirmative defense

Shorthand
1. M’Naghten- defendant does know right from wrong
2. Irresistible Impulse- an impulse that defendant cannot resist
3. Durham– but for the mental illness, defendant would not have done the act.
4. MPC- combination of M’Naghten and irresistible impulse.

VII.Diminished Capacity

Mens rea incapacity: The mens rea model of diminished capacity functions are a failure of proof of defense
Partial excuse: partially excuses mitigates a defendant’s guilt even if he has the requisite mens rea for the crime
MPC: Section 4.02 Evidence of Mental Disease or Defect Admissible when Relevant to an Element of the Offense; [Mental Disease or Defect Impairing Capacity as Ground for Mitigation of Punishment in Capital Cases].

Evidence that the defendant 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
[Whenever the jury or the court is authorized to determine or to recommend whether or not the defendant shall be sentenced to death or imprisonment upon conviction evidence that the capacity of the defendant to appreciate the criminality {wrongfulness} of his conduct or to conform his conduct to the requirements of the law was impaired as a result of mental disease or defect is admissible in favor of sentence of imprisonment]

VIII.Necessity/Choice of Evils

General Rules: No clear definition but six things usually required
1. The actor must be faced with a clear and imminent danger
2. The defendant must expect, as a reasonable person, that his actions will be effective in abating the danger he seeks to avoid
3. For the defense to apply there must be no effective legal way to avert the harm
4. The harm that D will cause by violating the law must be less serious than the harm he seeks to avoid
5. Law makers must not have anticipated the choice of evils and determined the balance to be struck between the competing values in a manner in conflict with D’s choice
6. Defendant must come to the situation with clean and sometimes immaculate hands
Limitations
1. Some states limit the defense to emergencies caused by natural forces
2. Arguably the necessity defense does not apply in homicide cases
3. Some states to limit the defense to protection of persons and not property
MPC: Section 3.02 Justification Generally: Choice of Evils

Conduct which the actor believes to be necessary to avoid a harm or evil to himself or another is justifiable provide that:
1. 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
2. Neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; AND
3. A legislative purpose to exclude justification claimed does not otherwise plainly appear
When the actor was reckless or negligent in bringing about the situation requiring a choice of harm or evils or in appraising the necessity for 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

IX.Self-Defense

General rule:
1. At CL a non-aggressor is justified in using force upon another if he reasonably believes such force is necessary to protect himself from imminent use of unlawful force by the aggressor
2. Deadly force is only justified in self-protection if the actor reasonably believe that its use is necessary to prevent imminent and unlawful use of deadly force by the aggressor
Three components of self defense: 1) necessity 2) proportionality 3) reasonable belief that overlays the defense
1. Necessity
  1. Force should not be used against another unless and only to the extent that it is necessary
  2. Self-defense is limited at Common Law to imminent threats
    1. Can’t threaten to hurt someone later
    2. Imminent means it will occur immediately or at once
  3. Can’t use deadly force if:
    1. Non-deadly force would be sufficient OR
    2. He can retreat safely
2. Proportionality
  1. A person in not justified in using excessive force in relation to the harm threatened
    1. i.e you can’t pop a cap in a mofo who gently poked you with a stick (or even cock-slapped you)
  2. A person may use non-deadly force against:
    1. Non-deadly threat OR
    2. Deadly threat (if he’s that hardcore)
  3. A person is never permitted to use deadly force to repel a non-deadly attack
3. Reasonability of Belief
  1. If he subjectively believes, and objectively has reasonable grounds for believing, that such force is necessary to repel an imminent unlawful attack, even if appearances prove to be false
  2. The defense is unavailable to one whose belief is genuine but unreasonable
    1. Some jurisdictions permit a unreasonable and mistaken actor to assert an imperfect or incomplete claim of self-defense which mitigates the defense to manslaughter
  3. The finder of fact should hold the accused to the standard of a reasonable person in the actor’s situation
    1. Situation included relevant knowledge that D has about the assailant, physical attributes (of both parties), prior experiences
Deadly force
1. Is force intended or likely to cause death or grievous bodily injury?
2. Goes to both parties (aggressor and D)
3. Still deadly force even if the intention was only to injure the aggressor
  1. i.e shooting a person in the leg or stabbing then in the arm
4. Minor battery does not ordinarily constitute deadly force, even if death results
Retreat
1. Must be able retreat in complete safety
2. Don’t need to retreat in your house, even if the other person lives there (now your office as well, unless the other party was employed there)
3. Rarely need to retreat from deadly force (never a gun)
4. D must have been subjectively aware of the existent of a place that D could safely retreat to
Risk to Innocent Bystanders: In general courts apply a transferred justification doctrine. If the defendant wildly or carelessly reacts thereby jeopardizing the safety of known bystanders a reckless endangerment or manslaughter conviction may be appropriate.
Unlawful arrest:
1. Officer may only use force as is necessary to effectuate to effect the arrest, anymore is unlawful
2. Officer can never use deadly force arrest for a misdemeanor
3. CL rule is that a person may use as much force as is reasonably necessary, short of deadly force, to resist in a an illegal arrest
4. If the arrestee uses deadly force he is guilty of manslaughter (some courts require a heat of the moment reaction)
MPC: Section 3.04 Use of Force in Self-Protection

Subject to the provisions of this section and section 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
Limitations on justifying necessity for use of force:
1. The use of force is not justifiable under this section:
  1. To resist an arrest which the actor knows is being made by a peace officer, although the arrest is unlawful; or
  2. To resist force used by the occupier or possessor of property or by another person on his behalf, where the actor knows that the person using the force is doing so under a claim of right to protect the property, except that this limitation shall not apply if:
    1. The actor is a public officer acting in the performance of his duties or a person lawfully assisting him therein or a person making or assisting in a lawful arrest; or
    2. The actor has been unlawfully dispossessed of the property is making a re-entry or reception justified by section 3.06; or
    3. The actor believes that such force is necessary to protect himself against death or serious bodily harm
2. The use of deadly force is not justifiable under this section unless the actor believes that such force is necessary to protect himself against death, serious bodily harm, kidnapping, or sexual intercourse compelled by force; nor is it justifiable if:
  1. The actor, with the purpose of causing death or serious bodily harm, provoked the use of force against himself in the same encounter; or
  2. The actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrounding possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action which he has no duty to take, except that:
    1. The actor is not obliged to retreat from his dwelling or place of work, unless he was the initial aggressor or is assailed in his place of work by another person whose place of work the actor knows it to be; AND
    2. A public officer justified in using force in the performance of his duties or a person justified in using force in his assistance or a person justified in using force in making an arrest or preventing an escape is not obliged to desist from efforts to perform such duty, effect such arrest or prevent such escape because of resistance or threatened resistance by or on behalf of the person against whom such action is directed
3. Except as required by paragraphs (a) and (b) of this subsection, a person employing protective force may estimate the necessity thereof under the circumstances as he believes them to be when the force is used, without retreating, surrendering possession, doing any other act which he has no legal duty to do or abstaining from any lawful action
Use of confinement as protective force: the justification afforded by this section extends to the use of confinement as protective force only if the actor takes all reasonable measures to terminate the confinement as soon as he knows he safely can, unless the person confined has been arrested on a charge of crime

X.Defense of Others

General Rule: A person is justified in using force to protect a third party from unlawful force by an aggressor. The intervener’s right to use force in such circumstances parallel’s the third party’s right of self-defense
1. CL rule: X can protect Y if Y, IN FACT, had the ability to use the same level of force
2. Majority modern view: An intervener may use deadly or non-deadly force to the existent that such force reasonably appears to the intervener to be justified in defense of a third party
MPC: Section 3.05 Use of Force for the Protection of Other Persons

Subject to these provisions and those under 3.09, the use of force upon or toward the person of another is justifiable to protect a third person when:
1. The actor would be justified under section 3.04 in using such force to protect himself against the injury he believes to be threatened to the person whom he seeks to protect; AND
2. Under the circumstances as the actor believes them to be, the person whom he seeks to protect would be justified in using such protective force; AND
3. The actor believes that his intervention is necessary for the protection of such other person
Notwithstanding Subsection (1) of this section:
1. When the actor would be obliged under Section 3.04 to retreat, to surrender the possession of a thing or to comply with a demand before using force in self-protection, he is not obliged to do so before using force for the protection of another person, unless he knows that he can thereby secure the complete safety of such other person, AND
2. When the person whom the actor seeks to protect would be obliged under Section 3.04 to retreat, to surrender the possession of a thing or to comply with a demand if he knew that he could obtain complete safety by so doing, the actor is obliged to try to cause him to do so before using force in his protection if the actor knows that he can obtain complete safety in that way; AND
3. Neither the actor nor the person whom he seeks to protect is obliged to retreat when in the other’s dwelling or place of work to any greater extent than in his own

XI.Defense of Property and Habitation

Defense of Property:
1. A person can use force to protect his property:
  1. Can never use deadly force
  2. Must only use force that is necessary
    1. Some courts require a request of the assailant to desist, but if this is futile or jeopardize defenders safety this is not required
  3. States are divided as to whether one can threaten deadly force
  4. Once dispossessed cannot use force to reclaim (you can use non-deadly force immediately after dispossession)
  5. It is lawful to repossess that which you have a claim of right
Defense of Habitation:
1. Early CL D may use deadly force if he reasonably believes it is necessary to prevent an imminent and unlawful entry into his house
2. The Middle Approach: D may use deadly force if he reasonably believes that:
  1. The person intends an unlawful and imminent entry of his dwelling AND
  2. The intruder intends to injure him or another occupant, or to commit a felony therein AND
  3. Deadly force is necessary to repeal the intrusion
3. The Narrow Approach: D may use deadly force if he reasonably believes that:
  1. The other person intends an unlawful and imminent entry into D’s dwelling AND
  2. The intruder intends to commit a forcible felony therein, or to kill or seriously injure an occupant
    1. i.e. felony committed by forcible means, violence and surprise
      1. murder, robbery, burglary, rape or arson
  3. Such force is necessary to prevent the intrusion
MPC: Section 3.06 Use of Force for the Protection of Property

Subject to these provisions and those under 3.09, the use of force upon or toward the person of another is justifiable when the actor believes that such force is immediately necessary:
1. To prevent or terminate an unlawful entry or other trespass upon land or a trespass against or the unlawful carrying away of tangible, movable property, provided that such land or movable property is, or is believed by the actor to be, in his possession or in the possession of another person for whose protection he acts; or
2. To effect an entry or re-entry upon land or to retake tangible movable property, provided that the actor believes that he or the person whose authority he acts or a person from whom he or such other person derives title was unlawfully dispossessed of such land or movable property and is entitled to possession, and provided, further, that:
  1. The force is used immediately or on fresh pursuit after such dispossession; or
  2. The actor believes that the person against whom he uses force has no claim of right to the possession of the property and, in the case of land, the circumstances, as the actor believes them to be, are of such urgency that it would be an exceptional hardship to postpone the entry or re-entry until a court order is obtained
Meaning of possession – for purposes of subsection (1)
1. A person who has parted with the custody of property to another who refuses to restore it to him is no longer in possession, unless the property is movable and was and still is located on land in his possession;
2. A person who has been dispossessed of land does not regain possession thereof merely by setting foot thereon;
3. A person who has a license to use or occupy real property is deemed to be in possession thereof except against the licensor acting under claim of right
Limitations on justifiable use of force
1. Request to desist: the use of force is justifiable under his section only if the actor first requests the person against whom such force is used to desist from his interference with the property, unless the actor believes that:
  1. Such request would be useless; or
  2. It would be dangerous to himself or another person to make the request; or
  3. Substantial harm will be done to the physical condition of the property which is sought to be protected before the request can effectively be made
2. Exclusion of trespasser: the use of force to prevent or terminate a trespass is not justifiable under his section if the actor knows that the exclusion of the trespasser will expose him to substantial danger of serious bodily harm
3. Resistance of lawful re-entry or reception: the use of force to prevent an entry or re-entry upon land or the reception of movable property is not justifiable under this section, although the actor believes that such re-entry or reception is unlawful, if:
  1. The re-entry or reception is made by or on behalf of a person who was actually dispossessed of the property; AND
  2. It is otherwise justifiable under paragraph (1)(b) of his section
4. Use of deadly force: the use of deadly force is not justifiable under this section unless the actor believes that:
  1. The person against whom the force is used is attempting to commit or consummate arson, burglary, robbery or other felonious theft or property destruction AND either:
    1. Has employed or threatened deadly force against or in the presence of the actor; or
    2. The use of force other than deadly force to prevent the commission or the consummation of the crime would expose the actor or another in his presence to substantial danger of serious bodily harm
Use of confinement as protective force: the justification afforded by this section extends to the use of confinement as protective force only if the actor takes all reasonable measures to terminate the confinement as soon as he knows that he can do so with safety to the property, unless the person confined has been arrested on a charge of crime
Use of device to protect property: the justification afforded by this section extends to the use of a device for the purpose of protecting property only if:
1. The device is not designed to cause or known to create a substantial risk of causing death or serious bodily harm; AND
2. The use of the particular device to protect the property from entry or trespass is reasonable under the circumstances, as the actor believes them to be; AND
3. The device is one customarily used for such a purpose or reasonable care is taken to make known to probably intruders the fact that it is used
Use of force to pass wrongful obstructor: the use of force to pass a person to whom the actor believe to be purposely or knowingly and unjustifiably obstructing the actor from going to a place to which he may lawfully go is justifiable, provided that:
1. The actor believes that the person against whom he uses force has no claim of right to obstruct the actor; AND
2. The actor is not being obstructed from entry or movement on land which he knows to be in the possession or custody of another person by whose authority the obstructor acts, unless the circumstances, as the actor believes them to be, are of such urgency that it would not be reasonable to postpone the entry or movement on such land until a court order is obtained; AND
3. The force used is not greater than would be justifiable if the person obstructing the actor were using force against him to prevent his passage

XII.Law Enforcement

By police officers: a police officer was authorized to make an arrest whether for a felony or misdemeanor, if was based on reasonable or “probable” cause
1. Felony arrest could be made with or without warrant
2. Warrantless misdemeanor arrests, however, are valid only if the offense occurred in the officer’s presence
3. Constitution: prevents unreasonable searches and seizures. In the absence of emergency or consent, warrantless felony arrests in the home are unconstitutional
Private persons: are ok for felony or misdemeanors if:
1. The crime actually occurred AND
2. She reasonably believes that the suspect committed the offense
  1. With misdemeanors you have to witness the crime
Force:
1. Non-deadly force: a police officer or private person may use force in law enforcement, either to prevent the commission or consummation of a crime, or to make an arrest after the offense has been committed
  1. CL: if you reasonably believe that (1) such a person has committed or is committed a felony or misdemeanor amounting to a breach of the peace and (2) the force is necessary to prevent the commission of the offense or to effectuate an arrest
2. Deadly force:
  1. Misdemeanor: deadly force may never be used
  2. Felony: deadly force is allowed to prevent the commission of a felony. A split of authorities exist regarding the scope of the right to use deadly force and felony crime prevention
    1. Broad defense, deadly force is justified if:
      1. Such other person is committing “any” felony AND
      2. The deadly force is necessary to prevent the commission of the crime
    2. Narrow defense: (majority) usually limited to “forcible or atrocious” felonies
Arrest:
1. Deadly force is permitted only as a last resort, but is OK if the arrestor reasonably believes (1) the suspect committed forcible or nonforcible felony and (2) such force is necessary to make the arrest or to prevent the suspect from escaping
2. Private person may use deadly force, if reasonably necessary, to arrest or apprehend a felon, but the defense is narrower than the comparable right of a police officer
Garner Case: According to the Supreme Court a police officer violates the 4^th Amendment prohibition on illegal searches and seizures if she uses deadly force to effectuate an arrest unless:
1. She has probably cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others AND
2. Such force is necessary to make the arrest or prevent escape
MPC: Section 3.07 Use of Force in Law Enforcement

Use of Force Justifiable to effect an Arrest. Subject to this Section and Section 3.09 the use of force in justifiable when making an arrest or assisting in an arrest and the actor believes it necessary to effect an arrest
Limitation on the Use of Force
1. The use of force is no justifiable under this section unless
  1. The actor makes known the purpose of the arrest, or believe it is otherwise known by or can’t reasonably be made known to the person to be arrested; AND
  2. When the arrest is made under a warrant, the warrant must actually, or believed to be, valid
2. The use of deadly force is NOT justifiable unless
  1. The arrest is for a felony; AND
  2. The actor is either a police officer or is assisting an individual he believes to be a police officer; AND
  3. The actor believe that that the force used creates no substantial risk of injury to an innocent person; AND
  4. The actor believe that:
    1. The crime for which the arrest is made involves conduct including the use or threaten use of deadly force; OR
    2. The is a substantial risk that the person to be arrest will cause death or serious bodily harm if his arrest is delayed
The use of force to prevent escape from custody is justifiable when the force could justifiably been employed to arrest the person, except that a guard of person authorized to act as a peace officer is justifiable in using any force including force, including deadly force which he believes to be immediately necessary to prevent the escape from a jail prison or other institution from the detention of persons charged with or convicted of a charge
Use of force by private person assisting in an unlawful arrest
1. A private person who is summoned by a peace officer to assist in an unlawful arrest, is justified in using any force he would be justified in using in a lawful arrest, so long as he doesn’t believe it is unlawful
2. A private person who assists another private person in an unlawful arrest or who not being summon assists a peace officer in effecting an unlawful arrest is justified in using any force he would be justified in using if the arrest was lawful, provided that
  1. He believes the arrest was lawful, AND
  2. The arrest would be lawful if the facts were as he believed them to be
Use of Force to Prevent Suicide or the Commission of a Crime
1. The use of force is justifiable when the actor believes such force is immediately necessary to prevent such other person from committing suicide, inflicting serious bodily harm upon himself, committing or consummating a crime involving or threatening bodily harm, damage to or loss of property or breach of peace, except that
  1. Any limitations imposed by other section of this article (Article 3.….) shall apply notwithstanding the criminality of the conduct, AND
  2. The use of deadly force is not in any effect justifiable under this subsection unless:
    1. The actor does believe that there is a substantial risk that the person whom he seeks to prevent from committing the crime will cause death or serous bodily harm to another unless the crime is prevented and the use such force if force presents no substantial risk to innocent persons; OR
    2. The actor believe that the use of such force is necessary to suppress a riot or mutiny after the rioters and mutineers have been ordered to disperse and warned, in any particular manner that the law may require that force will be used if they don’t obey
2. The justification afforded by this subsection extends to the use of confinement as preventative force only if the actor takes all reasonable measures to terminate the confinement as soon as he knows that he safely can, unless the person confined as been arrested on a charge of a crime

Section 3.09 Mistake of Law as to the Unlawfulness of Force or Legality of Arrest; Reckless or Negligent Use of Otherwise Justifiable Force; Reckless or Negligent Injury or Risk of Injury to Innocent Persons

The justification afforded by 3.04-3.07 inclusive is unavailable when:
1. The actors belief in the unlawfulness of the force or conduct against which he employs protected force or his belief in the lawfulness of an arrest made by force is erroneous; AND
2. His error is due to ignorance or mistake as to the provisions of the Code or other provisions of the criminal law or the law governing the legality of the arrest
When the actor believes the use of force is necessary for any purpose that would be justified under 3.03-3.08 but the actor is reckless or negligent in having such belief or in acquiring or failing to acquire any knowledge or belief which is material to the justiciability of the force the justification is unavailable in a prosecution for which recklessness or negligence establishes culpability
When the actors is justified under 3.03-3.08 in using force but he recklessly or negligently injures or creates a risk of injury to innocent persons the justification is unavailable in prosecution for such recklessness or negligence towards innocent persons

XIII.Inchoate Crimes

Attempt
1. General Principles:
  1. Definition: A criminal attempt occurs when a person with the intent to commit an offense performs any act that constitutes a substantial step towards the commission of that offense
    1. Substantial step means: conduct that has passes the stage of preparation and moved to the point of perpetration
  2. Assault: a greater degree of proximity to the completion of the offense than is required in the case of non-assault attempts
    1. Some court recognize attempted assault and some courts laugh and say that is attempted attempted battery
  3. Burglary: breaking and entering the dwelling house of another at night with the intent to commit a felony therein
2. Mens Rea of Criminal Attempts
  1. General Rule: Dual Intents
    1. The actor must intentionaly commit the acts that constitute the actus reas of the offense AND
    2. The actor must perform these acts with the specific intention of committing the targeted crime
  2. Result crimes
    1. The ordinary rule is that a person is not guilty of an attempt unless her actions in furtherance of the prohibited result are committed with the specific purpose of causing the unlawful result
      1. i.e. If A blindfolds herself and fires a gun into a crowded room and hits someone, she is guilty of murder; if she hits no one then she isn’t guilty of attempted murder because she didn’t intend to kill anyone
    2. Attempted felony murder: All but two states do not recognize this as a crime
      1. i.e. Bank robbery where your gun accidentally goes off
    3. Attempted manslaughter:
      1. Voluntary: A person may be properly convicted of attempted voluntary manslaughter
      2. Involuntary: A person may NOT be convicted of attempted involuntary manslaughter
  3. Conduct Crimes: You can be guilty of attempting a conduct crime.
    1. Attempted reckless endangerment
      1. i.e. Attempting to drive blindfolded
    2. Attendant circumstances:
      1. i.e. A pedophile sleeping with an 18 year old girl that he believes to be 14
3. Actus Reas:
  1. Last Act Test: A criminal attempt only occurs when the person performs all of the acts that she believes where necessary to perform the targeted offense
  2. Physical Proximity Test: Maybe not the last act, but must be proximate to the completed crime. It must approach sufficiently near it to either as the first or some subsequent step in direct movement toward the commission of the offense after the preparations are made
  3. Dangerous Proximity Test: A person is guilty of an attempt when he conduct is in a dangerous proximity to success or when an act is so near to the result that the danger of success if very near to result
  4. Indispensable Element Test: No attempt if the actor has not yet obtain control of an indispensable feature of the criminal plan
  5. Probable Distance Test: The court will not find an attempt unless in the ordinary course of the events the actor reached a point where it was unlikely that he would have voluntarily desisted from his effort to commit the crime
  6. Unequivocality Test: An act does not constitute an offense unless it ceases to be unequivocal. That is an attempt occurs when a person’s conduct, standing alone, unambiguously manifests her criminal intent.
4. Impossibility
  1. CL: Legal Impossibility is a defense but Factual Impossibility is Not
    1. Factual impossibility: Exists when aperson’s intended end constitutes a crime but she fails to consummate the offense because of an attendant circumstance unknown to her or beyond her control
    2. Legal Impossibility:
      1. Pure legal impossibility: when the law does not prohibit the goal that D sought to achieve
        
        i.e. Lawful act with a guilty conscience
      2. Hybrid legal impossibility (most states have abolished): The actor’s goal is illegal, but commission of the offense is impossible due to a factual mistake (not a misunderstanding of the law) regarding the legal status of some attendant circumstance that constitutes and element of the charged offense. The factual mistake is in regard is to the legal status of the defendant’s conduct. (OFTEN this and a FACTUAL impossibility are exactly the same save for how each attorney spins it to the court)
5. Abandonment: Was Not a common law defense and most states today do not recognize it.
  1. Only time it does work is if the defendant voluntarily and completely renounced her criminal purpose
    1. Not voluntary if:
      1. Motivated by unexpected resistance OR
      2. The absence of an instrumentality essential to the completion of the crime OR
      3. Some other circumstance that increases the likelihood of arrest or unsuccessful consummation of the offense
6. MPC: Section 5.01 Criminal Attempt

Definition of Attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for the commission of the crime, he:
1. Purposefully engages in conduct which would constitute the crime if the attendant circumstances were as he believed them to be; OR
2. 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; OR
3. Purposefully does or omits to do anything which, unless 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 the commission of a crime
Conduct which may be held to be substantial step under subsection (1)(c). It shall not be considered a substantial step unless it is strongly corroborative of the criminal purpose. Without canceling the sufficiency of other conduct, the following, if strong corroborative of the criminal purpose, shall not be held insufficient as a matter of law:
1. Lying in wait, searching for or following the contemplated victim of the crime;
2. Enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for the crime’s commission
3. Reconnoitering the place contemplated for the crime (Casing the joint);
4. Unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed;
5. Possession of materials to be employed in the commission of the crime, which are specialized designed for such unlawful use or for which can serve no lawful purpose under the circumstances
6. Possession, collection, or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances
7. Soliciting an innocent agent to engage in conduct constituting an element of a crime
Conduct designed to aid another in the commission of the crime. A person who engages in conduct designed to aid another to commit a crime which 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
Renunciation of Criminal Purpose. When the actor’s conduct would otherwise constitute an attempt under subsection 1(b) or 1(c) of this section, it is an affirmative defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete voluntary renunciation of his criminal purpose. The establishment of such a defense does not affect the liability of accomplice that did not join is such abandonment. Within the meaning of this article, renunciation of criminal purpose is not voluntary if motivated in whole or in part, by circumstances, not present or apparent at the inception of the actor course of conduct, which increase the probability of detection or apprehension which make more difficult to commit the crime. Renunciation is not complete by a decision to postpone the criminal conduct until a more advantageous time or transfer the criminal effort to another but similar objective or victim.

Solicitation
1. In general: Solicitation occurs where a person invites, request, command, hires, or encourages another to engage in conduct constituting any felony or misdemeanor relating to the obstruction of justice or a breach of the peace
2. Mens rea: CL solicitation is specific intent crime, need to intentionally commit the actus reus
3. Actus Reus: After one person invites, requests, commands, hires, or encourages another to commit an offense, nothing else is needed
4. You can’t solicit someone to help you
5. You can be guilty of both solicitation and being an accomplice
6. Scenarios: X hires Y to kill V.
  1. Y kills V – X is guilty of murder
  2. Y attempts to kill V – X is guilty of attempted murder
  3. Y agrees to kill V, but does nothing – X is guilty of conspiracy
  4. Y neither agrees nor does anything – X is guilty of solicitation
7. CL vs. MPC
  1. Impossibility: X tells Y to pick V’s pocket and X knows that there is nothing in the pocket
    1. Under CL X is not guilty of solicitation
    2. Under MPC X is guilty of solicitation
8. MPC: Section 5.02 Criminal Solicitation

Definition of Solicitation. A person is guilty of solicitation to commit a crime if with the purpose of promoting or facilitating it’s commission he commands, encourages, requests another person to commit or attempt to a crime or for which he would be an accomplice
Un-communicated solicitation. It is immaterial under subsection (1) that the actor fails to communicate with the person he solicits for the crime, if his conduct was designed to effect such communication
Renunciation of Criminal purpose. 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 circumstance manifesting a complete and voluntary renunciation of his criminal purpose (see Section 5.01(4))

Conspiracy
1. In general: A CL conspiracy is an agreement by two or more persons to commit a criminal act or series of criminal acts, or to accomplish a legal act by unlawful means
  1. CL Misdemeanor (regardless of the target crime)
  2. MPC nails your for the level of the target crime
    1. Under MPC if the conspiracy has many target offenses, the charge is for the highest offense
  3. CL does not merge with the completed or the attempted crime. Unlike MPC
  4. Express agreement is not needed (a nod or a wave is good enough)
  5. An agreement can exist even though not all parties know all of the details
  6. The essence is the agreement: there must be present “on the part of each conspirator communion with the mind and the will outside of herself”
  7. Conspiracy can be established directly or through entirely circumstantial evidence
    1. i.e. D1, D2, D3 are all in a car. D1 is driving and stops the car. D2 and D3 get out, rob V and get back in the car. D1 drives them all off. – Beyond a reasonable doubt/ a conspiracy
  8. Civil/Immoral: Under CL conspiracy can exist to agree to do something that is a civil wrong or is generally dangerous to the public
    1. MPC differs and requires that the object of the conspiracy must be a criminal offense
  9. No act is required for CL conspiracy
    1. Many statutes require one
    2. Virtually any act can suffice, even a legal one
    3. MPC, regarding misdemeanor or 3^rd degree felonies you need an overt act
2. Mens Rea:
  1. CL conspiracy is a specific intent crime
    1. Intent to agree AND
    2. Intent the object of the agreement be achieved
  2. Attendant Circumstances:
    1. US supreme Court says that federal conspiracy statute does not require any greater mens rea as to any attendant circumstances than is embodied in the substantive offense itself
    2. States- it is a case to case basis as to whether or not a greater mens rea is required
    3. MPC is unclear – leaves it to judges
3. Plurality Requirement
  1. Two of more people are required for a conspiracy:
    1. There can be No Common Law conspiracy if one of the two parties to an agree lacks the specific intent to commit the substantive offense
    2. There acquittal of one half should lead to the acquittal of the other
    3. This doesn’t mean that if there are lots of people in a conspiracy to agree, just need two to agree and then everyone is guilty
  2. MPC is very different, it allows for unilateral conspiracy
4. Parties to conspiracy:
  1. Hearsay Evidence Rule: An out of court statement of a conspirator made by her while participating in the conspiracy may be introduced in evidence against her co-conspirators
  2. Overt Act Requirement: An act by one conspirator in furtherance of the conspiracy renders the prosecution permissible against every other party to the same agreement
  3. Venue: A trial may be held in any jurisdiction in which any act is committed
  4. Structure of the conspiracy:
    1. Wheel: One person, S, in the center who deals with many people (the spokes). For real conspiracy to be complete there must be a rim around the wheel. This can be done if the prosecutor proves the spokes viewed their contacts with the hub as broader than any individual spoke-hub relationship
    2. Chain: Usually easy to prove than wheels because the plans can’t succeed unless each link successfully performs their responsibilities
    3. MPC: If the person knows that the person he is conspiring with is conspiring with another person then he is conspiring with those other people
5. Objectives of a conspiracy (i.e. many crimes over several days)
  1. Federal conspiracy prosecutions: Supreme Court says what matters is if there was a single agreement or many
  2. MPC: Each violation is one conspiracy IF:
    1. One agreement OR an ongoing relationship
6. Defenses:
  1. Impossibility:
    1. Majority CL rule: Neither Factual Impossibility or Hybrid Legal Impossibility is a defense
    2. MPC: Also does Not recognize factual or hybrid legal impossibility as a defense
  2. Abandonment:
    1. CL: Not a defense if the agreement is formed or in some jurisdictions an overt act has been performed
      1. If X withdraws from the conspiracy at point A then X is not guilty of those crimes that occur after Point A
      2. Courts are formalistic in their requirements for abandonment: inform the other member and/or dissuade the others from continuing
    2. MPC: Provides an affirmative defense if the conspirator renounces her criminal purpose, and thwarts the success of the conspiracy under circumstances demonstrating a complete and voluntary renunciation of her criminal it
  3. Wharton’s Rule: CL rule that if the target offense by definition needs two persons then no conspiracy—>Need a 3^rd person
    1. i.e. adultery, incest, bigamy, dueling, sail of contraband, receipt of bribe
    2. Doesn’t work for: possession or a controlled substance with intent to deliver OR bartering, exchanging or offering an illegal narcotic to another OR unlawfully receiving or dispossessing of another’s property
    3. This is treated in federal and state courts merely as a presumption
    4. Exceptions:
      1. Third party: If more than the needed number of people are present then not triggered
      2. If the two persons involved in the conspiracy are not the two people involved in substantive offense then not triggered
    5. MPC: Not recognized
  4. Legislative Exemption Rule: A person may not be convicted of conspiracy to violate an offense if her conviction would frustrate a legislative purpose to exempt her from prosecution of the substantive crime
    1. i.e. Agreeing with underage girl for statutory rape
    2. MPC (§ 5.04): Unless the legislator otherwise provides, a person may not be prosecuted for conspiracy to commit a crime under the code if she would not be guilty of the consummated offense:
      1. Under the law defining the crime OR
      2. As an accomplice in its commission
7. MPC: Section 5.03 Criminal Conspiracy

Definition of Conspiracy. A person is guilty of conspiracy with another person(s) to commit a crime if with the purpose of promoting or facilitating the crime he:
1. Agrees with such other person(s) that they or one of them will engage, attempt, or solicit such a crime; OR
2. Agrees to aid such other person(s) in the planning, commission, attempt or solicitation of such crime
Scope of Conspiratorial Relationship. If a person as defined by subjection (1) knows with whom he conspires to commit a crime as conspired with another person(s) to commit the same crime, he is conspiring with such other person(s), whether or not he knows their identity to commit such crime
Conspiracy with Multiple Criminal Objectives. If a person Conspires to commit a number of crimes, he is guilty of only one conspiracy, so long as such multiple crimes are the object or the same agreement or a continuous conspiratorial relationship
Joinder and Venue in Conspiracy Prosecution
1. Subject to provisions of paragraph (b) of this subsection, 2 or more person charged with criminal conspiracy may be prosecuted jointly if;
  1. They are charged with conspiring with one another; OR
  2. They conspiracies alleged, whether or they have the same or different parties, are so related that they constitute different aspects of a scheme or organized criminal conduct
2. In any joint prosecution under paragraph (a) of this subsection;
  1. No defendant shall be charged in any country [parish or district] other than the one in which he entered into such conspiracy or in which an overt action pursuant to such conspiracy was done a member of the conspiracy; AND
  2. Neither the liability of any defendant, nor the admissibility against him of evidence or acts or declarations of another shall be enlarged by such joinder; AND
  3. The court shall order a severance or take a special verdict as to any defendant who so requests, if it deems it necessary or appropriate to promote the fair determination of his guilt or innocence, and shall take any other proper measures to protect the fairness of the trial
Overt Acts. No person may be convicted of conspiracy to commit a crime, other than a felony of the first or second degree, unless an overt act in pursuance of such conspiracy is alleged and proved to have been done by a member of the conspiracy.
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 renunciation of his criminal purpose. (See 5.01(4))
Duration of Conspiracy for purposes of section 1.06(4)
1. Conspiracy is a continuing course of conduct which terminates when the crime(s) which are its objects are committed or the agreement that they be committed is abandoned by members of the conspiracy; AND
2. Such abandonment is presumed if neither the defendant nor anyone with whom he conspired does any overt act in pursuance of the conspiracy during applicable period of limitations; AND
3. If an individual abandons the agreement, the conspiracy is terminated as to him only if and when he advises those with whom he conspired of his abandonment OR he informs the law authorities of the existence of the conspiracy and his participation therein

Section 5.04 Incapacity, Irresponsibility or Immunity of Party to Solicitation or Conspiracy

Except as provided in subsection (2), it is immaterial to the liability of a person who solicits or conspires with another to commit a crime that:
1. He or the person he solicits or with whom he conspires does not occupy a particular position or have a particular characteristic which is an element of such crime, if he believes that one of them does; OR
2. The person whom he solicits or which whom he conspires is irresponsible or has an immunity to prosecution or conviction for the commission of the crime
It is a defense to a charge of solicitation or conspiracy to commit a crime that if the crime object were achieved, the actor would not be guilty of a crime under the law defining the offense or not guilty as an accomplice under 2.06(5) or 2.06(6)(a) or 2.06(6)(b)

XIV.Criminal Homicide

Definition:
1. Very early CL: the killing of a human being by a human being
2. Later CL: the killing of a human being by another human being
Definition of a Human Being:
1. A fetus must be born alive to be considered a human being
  1. Some jurisdictions by statute do not require a fetus to be born alive to prove viability
End of Human Life:
1. Old CL: A human being was dead when there was a complete and permanent stoppage of the circulation of the blood and the cessation of the animal and vital functions, such as respiration, pulsation, etc.
2. Brain Dead- Occurs when all three higher portions of the brain irreversibly cease to function (respiration, circulation, etc still function)
Year and a Day Rule
1. At CL, a defendant may not be prosecuted for criminal homicide unless the victim dies within a year and a day of the act inflicting the injury
  1. Modern trend is that lots of courts have changed or lengthened it
General Definitions (CL):
1. Murder: “the killing of a human being by another human being with malice aforethought”
  1. Aforethought: Now irrelevant, superfluous
  2. Malice: Four states of mind can satisfy malice (assuming now justification, excuse, or mitigation)
  3. MURDER 1
    1. Intent to Kill a human being
      1. Intent = Premeditation
      2. Intent + Reflection
        
        Reflection determined by looking at:
        
        Planning
        
        Motive
        
        Method of Killing
      3. Mens Rea: An intentional killing requires subjective fault. The prosecutor must prove beyond a reasonable doubt that D formed the actual intent to kill another person rather than simply a reasonable person would have known that the death would occur
      4. Probable Consequences: Juries infer that people intend the probable consequences of their actions
      5. Deadly Weapon Rule: When D intentionally uses a deadly weapon directed at a vital part of the human anatomy, the intention to kill may properly be inferred
      6. Constitutional Limitations: You can not instruct a jury to assume the probable consequences rule
    2. Felony-Murder: Intent to commit a felony during the commission or attempted commission of which a death occurs (ENUMERATED FELONIES)
      1. A person is guilty or murder if she kills another person during the commission or attempted commission of a dangerous felony.
        
        Applies whether the murder was done intentionally, recklessly, negligently, or accidentally and unforeseeably (Strict Liability)
        
        Limits on the rule:
        
        Inherently Dangerous felony limitations: limit the rule to homicides that occur during the commission of felonies dangerous to human life
        
        Arson, robbery, rape, and burglary
        
        Independent felony or merger limitation: the felony murder rule only applies if the predicate felony is independent of or collateral to the homicide
        
        Not applicable: i.e. no saying that the assault with a deadly weapon was the initial felony
        
        Applicable : i.e. robbery, there to get the property not to cause violence
        
        Res Gestae Requirement: the homicide must occur with the res gestae of the things done to commit the felony
        
        Temporal and geographical proximity requirement (from when you could be charged with a felony until all the elements are satisfied) AND
        
        Causal aspect (but for the commission of the felony)
      2. Killing by Non-Felon (store employee kills a bystander)
        
        Agency Approach: Felony murder does NOT apply if an adversary to the crime rather than the felon (or his accomplices) commits the homicidal act
        
        Proximate Cause Approach: A felon is liable for any death proximately resulting from the felony, whether the shooter is a felon or the third party
        
        Limited version: Courts make a distinction between a justifiable and excusable homicide
        
        Justifiable – killing the felon – FMR doesn’t apply
    3. Excusable – killing an innocent third party – FMR does apply
  4. MURDER 2
    1. Intent to Kill w/out Reflection
    2. The Intent to Cause Grievous Bodily Injury on another
      1. This is usually 2^nd degree murder
        
        Can be defined by statute: CA: “serious impairment of physical condition including but not limited to: lose of consciousness, concussion, bone fracture, protracted lose or impairment of function of any bodily member or organ
        
        This can be defined in general
    3. Depraved Heart- Extremely Reckless consciously disregards a substantial and unjustifiable risk to the value of human life
      1. Malice aforethought is implied. A person’s conduct manifest an extreme indifference to the value of human life
      2. 2^nd Degree murder
      3. Conduct that demonstrates an depraved heart
      4. Modern Definition: Extreme recklessness – conscious taking of substantial and unjustifiable risk of causing human death.
      5. Facts supporting a finding of extreme recklessness
        
        Wanton or willful disregard of the likelihood that the natural tendency of D’s behavior is to cause death or great bodily harm
        
        It may fairly be said that the actor as good as intended to kill his victim
        
        i.e. Fires a loaded gun into a full room, person who participates in a drag race in school zone, driving very intoxicated
      6. Distinguishing between recklessness and murder: when the risk is great and the justification is low, that would be murder

Felony-Murder Non-enumerated felonies

MANSLAUGHTER “unlawful killing a human being by another human being without malice aforethought”
1. Involuntary Manslaughter:
  1. Person should be but isn’t aware that her conduct is very risky(and unjustifiably so)
  2. No provocation
  3. Negligence
  4. Unlawful Act Doctrine (misdemeanor manslaughter): Accidental homicide while doing an unlawful act
    1. “Unlawful act manslaughter or misdemeanor manslaughter: an unintentional killing that occurs during the commission or attempted commission of an unlawful act that was a non-felony”
      1. While committing petty theft, V has a heart attack
    2. In states that recognize the unlawful-act doctrine, the prosecution need only show that the defendant’s unlawful act caused the death; proof of criminal negligence becomes unnecessary.
  5. Criminal Negligence: (agrosed negligence/ negligence +)
    1. “An act, lawful in itself, but done in an unlawful manner and without due caution and circumspection”
    2. A gross deviance from the standard of care that a reasonable person would use in the same situation OR
      1. i.e. Firing what you believed to be an unloaded gun at a person

Pennsylvania Model: Most states follow this model
1. 1^st degree – 3 categories
  1. Killing by poison, killing by lying wait, killing in a particular way
  2. Killing during or attempted commission of felony – specifically enumerated in the statute (FMR)
  3. Willful, deliberate and premeditated
    1. Willful – intent to kill type of murder
    2. Deliberate – to measure and evaluate what you are doing, weighing the pros and cons of killing someone
    3. Premeditated – think about before hand
      1. Deliberate & premeditated – cold blooded killing, without deep emotion
      2. Most states have obliterated the distinctions, some say a split second is sufficient
2. 2^nd degree – Every other kind of murder
  1. Simply consider all types of murder that constitute CL and not listed in 1^st degree, then second degree
    1. Grievous bodily injury
    2. Depraved heart
    3. All FMR not enumerated
MPC: Section 210.0 Definitions

In articles 210-213, unless a different meaning plainly is required:

“human being” means a person who has been born and is alive;
“bodily injury” means physical pain, illness or any impairment of physical condition;
“serious bodily injury” means bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ;
“deadly weapon” means any fireman, or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or is intended to be used is known to be capable of producing death or serious bodily injury.

Section 210.1 Criminal Homicide

A person is guilty of criminal homicide if he purposely, knowingly, recklessly or negligently causes the death of another human being.
Criminal homicide is murder, manslaughter or negligent homicide

Section 210.2 Murder

Except as provided in Section 210.3(1)(b), criminal homicide constitutes murder when:
1. It is committed purposely or knowingly; or
2. 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 or is an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape
Murder is a felony of the first degree [but a person convicted of murder may be sentenced to death, as provided in Section 210.6]

Section 210.3 Manslaughter

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 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.
Manslaughter is a felony of the second degree

Section 210.4 Negligent Homicide

criminal homicide constitutes negligent homicide when it is committed negligently
negligent homicide is a felony of the third degree

XV.Rape

Definition:
1. The traditional (non-reformed): sexual intercourse achieved forcibly, against the will, of the female, or without her consent (who is not his wife)
  1. Statutes are gender specific
2. Modern: Sexual intercourse procured by:
  1. Force OR
  2. Nonconsensual
    1. Unconscious/drugs
    2. Fraud-in-the-factum
  3. Statutory
Forcible Rape:
1. Traditional Law, requires proof that the female (1) did not consent AND (2) it was against her will
  1. Forcible: if the male uses or threatens to use force likely to cause serious bodily harm to the female or possible to a third party
    1. Intercourse secured by non-physical threat, such as, if the victim acts as the result of the superior power position of the other party does not ordinarily constitute forcible rape
      1. i.e. boss threatening to fire V for not having sex
      2. Fear v. Threat
        
        Fear is a subjective emotion – a feeling in the mind of the victim
        
        Threat is an objective act (verbal or physical) – emanating from another person
        
        In general both components are required
        
        i.e. no forcible rape occurs if female accedes to intercourse simply because he is bigger than her and she is afraid of him
        
        i.e. if the male knowingly takes advantage of that fear (see #1) in order to accomplish intercourse then it is forcible rape
    2. The victim must have resisted the male’s aggression and her resistance was overcome by force or that she was prevent from resisting by threats to her safety
      1. Resistance requirement as interpreted by courts:
        
        Has to resist to the utmost
        
        Enough resistance to make a female’s lack of consent evident to the male
        
        Reasonable resistance under the circumstances
        
        Most extreme form: “follow the natural instinct of every proud female” to resist the sexual attacker “until exhausted or overpowered” or resist “the attack in every way possible and continue such resistance until she is overcome by force, is insensible through fright, or ceases resistance from exhaustion, fear of death, or grave bodily harm”
2. Law in Transition – Forcible Rape:
  1. Resistance requirement:
    1. Resistance requirement under CL is linked to the force requirement
      1. The greater the initial use or threatened use of force the less resistance is required
    2. Few jurisdictions have outright abolished resistance requirement
    3. Most jurisdictions require earnest resistance
      1. Sufficient resistance to establish that an act of sexual intercourse was without consent and by force OR
      2. Resistance reasonable under the circumstances
  2. Force:
    1. Autonomy/privacy approach:
      1. Only real issue is whether the female wanted the intercourse or not
        
        Both force and resistance are only factors to help substantiate the rape claim
    2. A few jurisdictions: basic lack of consent coupled with nothing more than the physical force inherent in the act of penetration is sufficient for rape claim
    3. New Jersey Rape Statute:
      1. Solely based on female’s lack of permission
      2. Absence of affirmative freely given permission, either expressed or implied, for the specific act of penetration without such permission any force used, even the force inherent in the sexual act itself, justifies forcible rape prosecution
      3. Not a consent statute; rather, a permission statute
Fraud (CL):
1. A seducer is not a rapist
2. Fraud-in-the-inducement:
  1. Male may use any nonforcible “sales technique”, no matter how deceptive, to obtain the consent of a female to sexual intercourse, and escape criminal punishment as a rapist
    1. i.e. You can be a race car driver, Mel Gibson, Dr. claiming that to cure the woman of a disease she needs to sleep with him
  2. She must be consenting to sexual intercourse
3. Fraud-in-the-Factum:
  1. Consent to engage in sexual intercourse is invalid if, as a result of fraud, she is unaware that she has consented to the act of sexual intercourse
    1. i.e. Dr. is guilty of rape if he attains consent from V to insert an instrument in her vagina while she is under anesthesia if the “instrument” is his penis
    2. i.e. if the woman believes you are her husband
Mens Rea:
1. Rape is a general intent offense; therefore, no specific intent to have non-consensual intercourse to have sex is necessary
  1. Any morally blameworthy state of mind regarding the female’s lack of consent is sufficient
    1. i.e. if D has a genuine and reasonable belief that V consented he is not guilty of rape
  2. Recent years: a number of jurisdictions have ruled that a reasonable mistake of fact as to a female’s lack of consent is not a defense
Marital Immunity Rule:
1. Rule: husband cannot be guilty of rape committed by himself upon his lawful wife
2. In Transition:
  1. Only 2 states maintain total exemption
  2. 12 states totally abolished
  3. Most states retain a partial exemption although its form varies
  4. Immunity doesn’t apply if parties are legally separated or living apart
MPC: Section 213.0 Definitions

In this Article, unless a different meaning plainly is required:

The definitions given in Section 210.0 apply;
“sexual intercourse” includes intercourse per os or per anum, with some penetration however slight; emission is not required;
“deviate sexual intercourse” means sexual intercourse per os or per anum between human beings who are not husband and wife, and any form of sexual intercourse with an animal

Section 213.1 Rape and Related Offenses

Rape. A male who has sexual intercourse with a female not his wife is guilty of rape if:
1. 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
2. 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
3. The female is unconscious; OR
4. The female is less than ten years old. Rape is a felony of the second degree unless:
  1. In the course thereof the actor inflicts serious bodily injury upon anyone; OR
  2. 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
Gross Sexual Imposition. A male who has sexual intercourse with a female not his wife commits a felony of the third degree if:
1. He compels her to submit by any threat that would prevent resistance by a woman of ordinary resolution; OR
2. He knows that she suffers from a mental disease or defect which renders her incapable of appraising the nature of her conduct; OR
3. He knows that she is unaware that a sexual act is being committed upon her or that she submits because she mistakenly suppose that he is her husband

Section 213.2 Deviate Sexual Intercourse by Force or Imposition

By Force or its Equivalent. A person who engages in deviate sexual intercourse with another person, or who causes another to engage in deviate sexual intercourse, commits a felony of the second degree if:
1. He compels the other person to participate by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone; OR
2. He has substantially impaired the other person’s power to appraise or control his conduct, by administering or employing without knowledge of the other person drugs, intoxicants or other means for the purpose of preventing resistance; OR
3. The other person is unconscious; OR
4. The other person is less than ten years old
By Other Imposition. A person who engages in deviate sexual intercourse with another person, or who causes another to engage in deviate sexual intercourse, commits a felony of the third degree if:
1. He compels the other person to participate by any threat that would prevent resistance by a person of ordinary resolution; OR
2. He knows that the other person suffers from a mental disease or defect which renders him incapable of appraising the nature of his conduct; OR
3. He knows that the other person submits because he is unaware that a sexual act is being committed upon him

Crim Law Outline

Essential Supplements for Success in Crim Law:

I.Purposes and Policies Behind the MPC/Criminal Statues

II.Burden of Persuasion

III.Mistake of Fact or Law

IV.Complicity: Liability for the Acts of Others

V.Duress

VI.Insanity

VII.Diminished Capacity

VIII.Necessity/Choice of Evils

IX.Self-Defense

X.Defense of Others

XI.Defense of Property and Habitation

XII.Law Enforcement

XIII.Inchoate Crimes

XIV.Criminal Homicide

XV.Rape

Like this:

Crim Law Outline

Essential Supplements for Success in Crim Law:

I.Purposes and Policies Behind the MPC/Criminal Statues

II.Burden of Persuasion

III.Mistake of Fact or Law

IV.Complicity: Liability for the Acts of Others

V.Duress

VI.Insanity

VII.Diminished Capacity

VIII.Necessity/Choice of Evils

IX.Self-Defense

X.Defense of Others

XI.Defense of Property and Habitation

XII.Law Enforcement

XIII.Inchoate Crimes

XIV.Criminal Homicide

XV.Rape

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