Criminal Law
Professor Smith
I.
Criminal
Law Theories
Utilitarians
and Retributavists
Don’t
really need to know much in this section other than these 2 theories. J
II. Actus Reus
A voluntary act or failure to
perform a voluntary act that one has a legal duty + that causes (causation
elements) + a Social harm
Example: homicideà”if he purposely, knowingly, recklessly, or negligently causes the
death of another human being.” CAUSES THE DEATH= actus reaus
Voluntary Element
Broad
meaning: that the defendant possessed
sufficient free will to be blamed for her conduct. If the act was due to coercion or mental
illness the actor does not deserve to be punished for her actions.
Narrow
Meaning: a movement of the body which
follows our volition, a willed contraction of a muscle. Thus practically all human acts are
voluntary.
-Utilitarians
do not favor voluntary act requirement
-retributivists
favor this requirement
Martin
v. State
-police came arrested Martin drunk from his house and
took to highway
-convicted
for being drunk on highway
-on
appeal, conviction set aside
-Martin’s
act of being on highway not voluntary
State
v. Utter
-son
fatally stabbed by father
-father
voluntary got drunk
-unconscious
at time of stabbing
-father
voluntarily got drunk
Omission (Negative Acts)
5
cases where omission can be punished under law
1.
Statute imposes duty
2.
One stands in a certain status relationship to another
3.
One has assumed a contractual duty to care for another
4.
One has voluntarily assumed the care of another so secluded the helpless person
as to prevent others from rendering aid.
5.
Duty by risk creation- D’s action placed V in the condition
People
v. Beardsley
-man
and lover got drunk. Lover passed out and placed in basement where she dies.
-man
convicted for manslaughter
-appeal-
conviction set aside
-court
said no legal duty towards woman
Argument
against Ct’s rulingà one can argue that the man took the woman to the
basement and prevented others from helping her
Sometimes
it is hard to tell if act is an affirmative act or omission
Barber
v. Superior Court
-cessation
of life support is not an affirmative act but rather withdraw or omission of
further treatment.
-Proportionality
test used by the court
v II. Mens Rea
o
Broad meaning: a general immorality of motive, vicious will, evil
meaning mind.
o
Narrow
[elemental] meaning: the particular
mental state provided for in the definition of an offense.
o
Intentionally
§
Under CL,
intentionally defined as:
·
It is D’s desire
to cause the social harm; or
·
D acts with
knowledge that the social harm is virtually certain to occur as a result of his
conduct.
§
Transferred
Intent
·
Attribute
liability to a D who, intending to hurt or kill one person, accidentally hurts
or kills another person.
·
Transferred
intent doctrine does not apply to statutory offenses which require that the
defendant’s criminal intent be directed towards the actual victim.
o
Knowingly
§
Person acts
knowingly if
·
He is aware of
the facts
·
Correctly
believes the facts exist
·
Or suspects that
they exist an purposely avoids learning if her suspicion is correct (willful
blindness)
o
Criminal
Negligence
§
Person should be
aware that his conduct creates a substantial and unjustifiable risk of social
harm.
§
Objective
standard (reasonable man): Physical characteristics (e.g. blindness) might be
considered but other characteristics (e.g. low education) is not considered.
o
Recklessness
§
Person consciously
disregards a substantial and unjustifiable risk that his conduct will cause the
social harm of the offense.
o
Malice
§
Person
intentionally or recklessly causes the social harm of the offense
o
General vs. Specific Intent (CL)
§
General Intent
·
A crime for which
only mens rea required is a blameworthy state of mind. A crime where D only
desired to commit the act which served as the actus reus.
·
Example
o
Battery: only
need intent to make harmful or offensive contact (actus reus).
§
Specific Intent
·
D, in addition to
actus reus, desired to do something further.
o
Example
§
Burglary:
Breaking and entering [actus reus] dwelling place of another at nighttime
[attendant circumstance] with the intent to commit felony therein [mens
rea].
·
D had a special
motive to commit the actus rea
o
Larceny: carrying
away personal property of another with the intent to permanently deprive
·
D was aware of a
particular attendant circumstance
o
Receiving
property with the knowledge that it is stolen.
o
MPC 2.02[1]
§
Differences
between CL and MPC
·
Person can’t be
punished under MPC just because acted with culpable state of mind (expunges
culpability meaning of mens rea)
·
Unlike CL, MPC
doesn’t use general and specific intent distinctions.
·
Unlike CL MPC has
4 terms: purposely, knowingly, recklessly and negligently.
·
Recognizes
affirmative defenses.
§
Purposely
·
Person acts
purposely if it is his conscious objective to engage in conduct of that nature
or to cause such a result [applies to result conduct]
o
A’s conscious
object is to take B’s life and he purposely kills B.
·
A person acts
purposely with respect to attendant circumstances if he is aware of the
existence of such circumstances or he believes or hopes that they exist
[applies to attendant circumstances]
o
E.g. D purposely
enters a house hoping that it will be occupied in order to commit a felony.
§
Knowingly
·
A result is
knowingly caused if the actor is aware that it is practically certain
that his conduct will cause such a result.
o
D placing a bomb
in an airplane in order to kill V, but also knowing that it will certainly kill
the other passengers.
·
One acts
knowingly if he is aware that his conduct is of that nature or that such attendant
circumstances exist.
§
Recklessly
·
A person acts
recklessly if he consciously disregards a substantial and unjustified risk that
the material element exists or will result from his conduct.
§
Negligent
·
A person’s
conduct is negligent if he should be aware of a substantial and unjustifiable
risk that the material element exists or result from his conduct.
·
Risk taking is inadvertent,
unlike reckless behavior where risk taking is conscious.
§
Principles of
Statutory interpretation under MPC
·
If a statute
defining an offense prescribes the kind of culpability that is sufficient for
the commission of the offense, without distinguishing among the material
elements thereof, a court will interpret such culpability provision as applying
to every material element of the offense, unless a contrary purpose plainly
appears.
o
E.g. False
imprisonment: to knowingly restrain another unlawfully.
o
Person knowingly
restrained the person and knew it was unlawful.
·
If a single
culpability term is placed by the drafters in the middle of the statute, i.e.
some material elements of the offense precede the culpability term and some
come after, this would suggest a contrary purpose.
o
E.g. burglary: to
enter an occupied structure with purpose to commit a crime therein.
o
Purpose only
applies to commit a crime therein.
o
As far as
entering an occupied structure, purposely, knowingly, or recklessly applies
(when silent, purposely, knowingly, or recklessly, not negligently).
o
Strict
Liability
§
No culpable
mental state need to be shown. It is
enough that D performed the act in question.
§
Some categories
·
Public welfare-
proof of the commission of actus resu is all that is required
·
But a statute
that is silent regarding mens rea may be interpreted as requiring at least some
minimal level of mens rea.
§
MPC
·
Under MPC, only
offenses that are strict liability are violations and punishable only by fines
or forfeiture.
o
Mistakes of
Fact
§
Examples
·
D driving over
the speed limit because speedometer is inaccurate.
·
D carrying away
property belonging to V thinking that he has permission to take it.
§
Mistake of Fact
no defense for a strict liability crime.
§
Specific Intent
Crimes
·
A defendant is
not guilty of an offense if his mistake of fact negates the specific-intent
portion of the offense.
·
Mistake does not
have to be reasonable, could be reckless or negligent mistake. As long as there is not the specific mens
rea.
§
General Intent
Offenses
·
A person not
guilty if his mistake of fact reasonable, but guilty if unreasonable.
·
If reasonable= no
culpable state of mind
·
Another approach:
“Moral Wrong Doctrine”
o
One has made
reasonable mistake of fact but he manifests a bad character or otherwise
demonstrates worthiness of punishment.
o
Moral Wrong
Doctrine not triggered unless the defendant’s conduct would be immoral had the
situation been as he supposed.
·
Legal-Wrong
Doctrine
o
D is guilty of
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 Fact
Analytical Outline (Common Law)
·
Is the offense
general intent, specific intent or strict liability?
·
With specific
intent offenses, ask: Does the mistake relate to the specific intent portion of
the offense?
o
If yes, do
elemental analysis: that is, ask yourself whether the mistake negates the
specific intent element of the offense.
If it does the defendant must be acquitted.
o
If no, treat the
offense as if it was a general intent crime as discussed below.
·
With general
intent offense do culpability analysis: that is, determine whether the
defendant acted with a morally blameworthy state of mind. There are various ways to answer this
question:
o
The usual way:
Determine whether the defendant’s mistake was reasonable or unreasonable. If it was unreasonable, then he acted with a
culpable state of mind and may be convicted.
If his mistake was reasonable, then he is morally innocent and entitled
to a defense for want of mens rea.
o
Alternatives:
Even if the defendant’s mistake was reasonable, some courts will apply the moral
wrong and/or legal wrong doctrines.
·
With strict
liability offenses, a mistake is never a defense.
§
MPC
·
One is not guilty
of an offense unless he acted purposely, knowingly, recklessly, or negligently[2]
·
Mistake is a
defense if it negates the mental state required to establish any element of the
offense.
·
MPC provides that
mistake of fact is not available if the actor would be guilty of another
offense had the circumstances been as he supposed.
·
Similar to CL
legal wrong doctrine, but unlike CL, under MPC, the person will be guilty of
the lesser offense.
III. Causation
Actual Cause (Cause in Fact)
No
criminal liability unless there is actual cause
But
For Test- would the social harm have
occurred when it did but for D’s voluntary action? If answer “no”, then D is
the actual cause.
Prosecution
has to prove beyond a reasonable doubt that the defendant is “a” (not “the”)
cause of the resulting harm.
Proximate Cause
Direct Cause
No intervening causes (e.g. D shot V and V
died)
LaFave
& Scott Analysis
1. Intervening causes (mens rea element)
(a)
Coincidence/Independent
(b)
Responsive/Dependent
2.
Analysis
1.
What are the intervening causes?
2.
Were they (a) or (b)?
3.
If (a): Is it Foreseeable?
If
yes, then not superceding; chain of legal cause not broken.
If
not, then superseding; chain of legal cause is broken.
If
(B): is it abnormal or bizarre?
If
yes, then superceding; chain of legal cause is broken.
If
no, then not superceding; chain of legal cause not broken.
Intervening
causes
Responsive
Intervening Causes
An
act that occurs in reaction or response to the defendant’s prior wrongful
conduct.
A
responsive intervening cause does not relieve the initial wrongdoer of criminal
responsibility unless the response was highly abnormal and bizarre
-For
example, if d shoots v and v goes to the hospital where he does not receive
proper medical treatment and he dies. D
is still liable because v’s act of going to the hospital was in response to d
shooting him and the lack of proper treatment is not bizarre or abnormal.
-but
if the doctors act extremely negligently, then it will be considered abnormal
and bizarre
Independent
Intervening Causes
Common
law rule of thumb is that a coincidental intervening cause relieves the
original wrongdoer of criminal responsibility, unless the intervention was
foreseeable.
-for
example, d shoots v and v goes to the hospital.
At the hospital, an escaped convict shoots v and kills him. The independent intervening cause was not
reasonably foreseeable.
Doctrines:
Intended
consequences doctrine
A
voluntary act intended to bring about what in fact happens, and in the manner
in which it happens, has a special place in causal inquiries. Intended consequences can never be too
remote.
Apparent-safety
doctrine
-d
threats the life of v, his wife. v leaves the house and reaches the parents
house but does not want to bother them and sleeps outside and freezes to death.
D not guilty.
Free,
Deliberate, Informed Human Intervention
-x
and y drag race and after race finished, x turns around and drives high rate of
speed and hits a tree and dies. Y not
liable because x made “free, deliberate, informed” choice.
vs.
-x
rapes y. Due to the shame, y commits
suicide. Y’s actions not “free, deliberate and informed.”
IV. Homicide
Killing
of a human being by another human being.
We
are concerned with criminal homicide and not innocent homicide.
Murder:
CL definition: Murder is the killing by another human being with malice
aforethought.
Manslaughter:
CL definition: unlawful killing of a human being by another human being without
malice aforethought.
Malice
aforethought has 4 constituent states (“malice quartet”)
1. Intent to kill (includes awareness that death will
result from one’s actions)
2. Intent to cause grievous bodily harm (includes
knowledge that one’s conduct will cause such injury)
3. Extreme Recklessness; wanton disregard for human life-
consciously disregarding a substantial and unjustified risk to human life.
**Note: CA requires proof of the subjective awareness of the probability of
causing death.
4. Felony-murder rule- strict liability for homicide
committed during the commission of a felony
Most
states now divide murders into degrees[3]
(Pennsylvania Model):
1st degree: perpetrated by means of poison, lying in wait,
willful, premeditated, deliberate killing or which is committed in the
perpetration or attempted perpetration of arson, rape, robbery or burglary.
-intent
to kill murder= intentionally killing without justification, excuse or
mitigating circumstances with deliberation and premeditation.
2nd
degree: all other kinds of murders
-intentional
killings that are not premeditated and deliberate
-intent
to inflict grievous bodily injury killings
-reckless
killings- extreme indifference to the value of human life: “Depraved heart”
-deaths
that occur in the commission of a felony other than arson, rape, robbery, or
burglary
**CA
and PA allow “last straw” defense of combined grievances over time, Maryland
and other jx do not.
Murder:
Intent to kill
-one
who intentionally kills another human being without:
Justification (self defense)
Excuse (e.g. insanity)
Mitigation circumstances (e.g. sudden heat of passion)
Is
guilty of malice aforethought.
Intent
to kill: Willful, deliberate, premeditated
Premeditated
State
v. Schrader
-defendant
and victim got into argument
-defendant
stabbed victim 51 times
-ct.
ruled that no time is too short for a wicked man to construct premeditation
-premeditation
can be established in “twinkling of an eye”
So
under Scharder, court fails to clearly distinguish willful killings and
willful, deliberate, premeditated killings.
-other
states such as Michigan in Morrin treat the terms willful,
deliberate, and premeditated as independent elements of 1st degree
murder.
-Morrin
jurisdictions believe that one who kills cold bloodedly is more dangerous and
more culpable than one who kills on impulse.
Deliberate
-deliberate
means to measure & evaluate the major facets of a choice or problem
-it
is the process of determining upon a course of conduct to kill as a result of
thought, including weighing the reasons for and against the action and
considering the consequences of the action.
-such
state of mind presupposed a cool purpose, free from influence of excitement or
passion
-thus
the idea that the most heinous killings are those that are cold blooded.
+It
is impossible for a person to deliberate unless he premeditates
+It
is impossible to premeditate without possessing a deliberate state of mind
+Premeditation
involves quantity of time.
+deliberation
speaks of quality of time.
Provocation
as mitigating factor (murder à voluntary manslaughter)
-one
who kills in sudden rage may be guilty of manslaughter if his anger is the
result of adequate provocation
Traditional
CL categories of provocation doctrine:
Ÿ
Extreme assault
or battery upon the defendant
Ÿ
Mutual combat
Ÿ
Defendant’s
illegal arrest
Ÿ
Injury or serious
abuse of a close relative
Ÿ
Sudden discovery
of spouse’s adultery
Girouard
v. State
-words
alone cannot provide the sufficient provocation to mitigate crime from murder
to manslaughter
**But
can lower degree from 1st to 2nd
-Ct.
recited the rule of provocation
Ÿ
There must have
been adequate provocation.
Ÿ
The killing must
have been in the heat of passion
Ÿ
It must have been
a sudden heat of passion- that is, the killing must have followed the
provocation before there had been a reasonable opportunity for the passion to
cool.
Ÿ
There must have
been a causal connection between the provocation, and the fatal act.
Unintentional
Killings
Wanton
Murder
Malice
aforethought is implied if D’s conduct manifests an extreme indifference to the
value of human life. For states that
separate murders into degrees, this is 2nd degree murder.
-at
common law, this kind of conduct referred to as “an abandoned and malignant
heart” or “depraved heart”
-Under
MPC, such conduct is referred to as reckless.
Under
wanton murder doctrine, the accused does not intend to kill, but his conduct
manifests such a high degree of indifference to value of human life that the actor
as good as intended to kill his victims.
Some
examples of Wanton Conduct
Shooting
a gun at a crowd of people (not actually intending to kill anyone).
Driving
car at high speed in rain and while intoxicated.
Omissions:
Parents
indifferently fails to feed her infant for 2 week.
Neighbor
has 2 big pit bulls and trains them to fight and no fence around the house and
kids living in the next house.
Another
definition: When the risk of death is great and the justification for taking
the risk is weak or non-existent, the actor is guilty of murder, she has acted
with a “depraved heart.”
Common
Law has 4 levels of risk in cases of unintentional killings:
1. Due care (no liability)
2. Ordinary negligence (no criminal liability)
3. Gross negligence (involuntary manslaughter)
4. Wanton conduct (murder; malice quarter-3)
Involuntary
Manslaughter (Gross Negligence)
Common
Law: common law courts have used “gross negligence” “culpable negligence”
MPC:
Some ordinary negligence made criminal, unlike common law.
Criminal
negligence, or involuntary manslaughter, involves a gross deviation from the
standard of care that reasonable people would exercise in the same situation,
It is more than civil negligence- it must be so gross as to be deserving
punishment.
Misdemeanor
Manslaughter (unlawful act manslaughter)
-strict
liability doctrine
-IM
covers unintentional homicides that occur during the commission of an offense
that is misdemeanor, or a non dangerous felony, that is malum in se e.g. larceny. If the amount is large, or unknown to the
thief the larceny is a felony, but it is not a dangerous felony. There is NO merger doctrine, as in felony
murder, e.g. the misdemeanor most commonly used to operate this rule is
battery. Yet battery has as its dominant
feature the very act of violence that brought about the death.
-The
doctrine is known as misdemeanor-manslaughter in that the defendant’s
intentional commission of a misdemeanor or non dangerous felony (unlawful act)
supplies the culpability required to impose homicide liability.
Misdemeanor
Manslaughter: Malice Quarter
1. Intent to kill (no applicable)
2. Intent to inflict non serious bodily injury (e.g.
battery)
3. Gross negligence (more than ordinary negligence but
less than wanton)
4. Misdemeanor- manslaughter rule (commission of
misdemeanor or non dangerous felony.
**Strict liability and no merger limitation e.g. battery does not merge.
v Felony Murder Doctrine
o
At CL, person
guilty of murder if he kills someone, even accidentally, during the commission
of any felony.
o
In states that
use Pennsylvania, usually arson, robbery, rape and burglary felonies involved=
1st degree murder
o
All other
felonies= 2nd degree murder
o
Rule very
unpopular among states
o
Some limitations
by states
§
Inherently
Dangerous Felony Limitation
·
In the abstract=
look at the definition of the crime to see if inherently dangerous
·
Facts= look at
facts of each case to see if this particular felony inherently dangerous.
§
Merger Doctrine
·
Felony that is
the predicate for the felony-murder rule must be independent of homicide.
·
E.g. assault with
a deadly weapon merges with the homicide
§
Causation
Limitation
·
There has to be
causal relationship between death and the felony
·
E.g. King case:
Felons’ plane crashed while transporting drugs and one died
·
Ct. said no
causal link between drug transportation and crash. If flying low to avoid detection, then there
would have been that link.
§
Killing by
non-felon
·
In most states if
killing by anyone other than the felon, then felony murder rule doesn’t apply
§
Agency Theory
·
Felony murder
only applies if murder committed in furtherance of the felony by a person
acting as his agent.
v MPC § 210
o
Three categories:
Murder, Manslaughter, Negligent Homicide
o
Murder
§
No degrees used
§
Intent to kill
§
Extreme
Recklessness
§
No Felony Murder
Rule (But can use Extreme Recklessness as an alternative)
§
No intent to
cause grievous bodily injury (falls under extreme recklessness)
o
Manslaughter
§
Recklessness
·
Not as extreme
indifference as the reckless murder
o
Negligent
Homicide
§
Criminally
negligent killing (under CL, manslaughter)
v Larceny
o
Larceny: Taking,
carrying away, personal property, of another, by trespass, with intent to
steal.
o
Larceny is a
crime against possession and not title
§
E.g. A pays B $50
for a TV and tells B that he will pick it up in about 1 hour. Both agree to this agreement. Before A can
return, B leaves with the TV and $50. This is not larceny but falls under the
crime of embezzlement.
o
Act of carrying
away
§
The slightest
movement, the slightest carrying away of the object will suffice for larceny.
The CL writers call this asportation.
o
Trespass
§
Not related to
trespass on someone’s land. It means
taking away the item without permission. This is a strict liability element.
o
Personal Property
§
At CL, only
tangible property included. Items such as fruits, are not included because
fixture of a real property. But legislatures can include such items in the
penal code.
o
Property of
another
§
Because larceny
is a crime against possession not title, you may commit the crime of larceny of
your own property if it violates the possessory interest of another, e.g. a
mechanic’s possessory lien on your repaired car.
o
Intention to
Steal
§
Requires the
intent to deprive someone of their possessory right permanently as opposed to
merely temporarily.
Rex
v. Chisser
-shopper
asks to see two cravats
-asks
for price and owner says $7
-shopper
hands $3 and runs
-Larceny
even though the owner handed it to the shopper
-no
contract formed between owner and shopper at the time shopper ran away
o
Larceny of the
Person
§
Kind of an
aggravated form of larceny. The item
must be near enough to the victim that if he saw the effort to steal, he could
try to prevent it.
§
Pick-pocketing
& purse snatching fall under this category of larcenies, but if force usedà Robbery
v
Robbery
o
Robbery:
Larceny (specific intent crime) from a person by means of violence or
intimidation.
o
Force
§
Purse snatching
or pick pocketing may escalate to robbery if any force is used to take the
wallet or snatch the purse, or to overcome resistance.
§
If force used, it
must be sufficient to overcome the victim’s resistance. If threats are used, they must be threats of
immediate death or serious injury to the victim, a member of her family, a
relative, or a person in her presence at the time. A threat to do damage to property will not
suffice, with the exception of a threat to destroy the victim’s dwelling house.
§
Threats to
slander or damage to personal property are not robbery but perhaps extortion.
§
Force or threats
must be used to either gain possession of the property or to retain possession
immediately after such possession has been accomplished.
·
A reaches into
B’s pocked and takes out his violet. B
feels this and grabs A’s hand and A punches B. Robbery has taken place even
though A had temporarily gained possession of the violet.
o
Fear
§
D must cause
victim imminent fear of bodily harm.
§
Threats of future
bodily harm do not suffice.
o
Victim’s Presence
§
Property must be
taken from victim’s presence. But need not be on V’s person. For example, property taken from a room in
which V is present is in his presence.
v
Burglary
o
7 elements of
Burglary
o
Breaking
§
Only requires
that D push aside some barrier to his entry, no matter how flimsy.
o
Entering
§
Hypo: D goes to
V’s house with the intent to kill and he is arrested immediately after he:
·
Pushes open an
unlocked door (Yes, entry good for burglary)
·
Pulls open a door after unlocking it (Yes entry)
·
Throws a stone
through the glass window (No entry)
·
Fires a bullet at
V through a screened window (yes, bullet proper to achieve the intent)
o
Dwelling house
§
Must be
inhabited, but inhabitants need not be at home
§
Covers structures
near the main house (garage, toolshed, etc.)
§
Statutory
Expansion: Coverage almost universally extended to commercial structures (e.g.
factories, warehouses, stores)
o
Of another
§
Connotes right to
possession, not ownership, of structure
§
E.g. Landlord may
commit a burglary of structure he owns.
§
Roommate does not
commit burglary even if he enters bedroom of other roommate.
o
At night
§
Both breaking and
entry must occur at night
§
Statutory
expansion: This element often eliminated
o
Trespassory
§
The acts of
breaking and entering were done without the permission of the dweller.
§
Entry that is
result of threats or fraud is trespassory
§
Entry at a
different time than that covered by permission is trespassory
§
Entry into a
different area than that covered by permission is treapassory
§
Split in authority:
e.g. stores that are open to public, entry becomes trespassory because of the
secret intent to commit felony inside.
o
Felonious Intent
§
Burglary is
specific intent crime
§
D intends, once
inside structure, to commit an act that law classifies as a felony, or any
larceny, grand or petit.
§
Success in
committing target felony does not cause burglary to merge into it; failure to
commit target felony does not reduce burglary to attempt.
§
Formation of
felonious intent only after D is already inside does not convert entry into
burglary, unless D then opens door to inner room to commit target felony.
v
Rape
o
Generally, sexual
intercourse by D with V, not his wife, constitutes rape if it is committed:
§
Forcibly
§
By means of
certain forms of deception
§
While V is asleep
or unconscious
§
Or under
circumstances in which V is not competent to give consent
o
Traditional
Common Law Rule
§
The tradition
rule requires that female did not consent to the intercourse and that the
sexual act was by force and against her will.
·
Non consent and
force are not synonymous.
·
In order to prove
force, the female must physically (not just verbally) resist the male (“No is
not enough”), or the male must use or threaten force on the present occasion to
an extent that would cause a reasonable female to fear grievous injury if she
were to resist sexual intercourse.
§
Elements of Force
·
May be
demonstrated by use or threatened use of force likely to cause serious bodily
harm to the female or possibly a third party.
·
Nonphysical
threat by a person in position of power over the victim does not ordinarily
constitute forcible rape.
§
Elements of
nonconsent
·
Elements of
nonconsent and force merge in that the use or threat of grave force constitutes
both elements
·
Under CL, V must
resist or have reasonable reason not to resist due to threat of grave force.
§
Fear and Threat
·
Fear is
subjective
·
Threat is objective
act (verbal or physical)
·
In general, both
components are required
·
Exception:- if
female’s fears are unreasonable, there can still be rape if D knew of V’s fears
and knowingly takes advantage of her weak state of mind.
§
Some examples of
the traditional rule
·
State v. Alston
o
There was
sufficient evidence that V had no consented to the intercourse, but there was
no evidence that D used force or threats to overcome the will of the victim to
resist the sexual intercourse.
·
Commonwealth v.
Berkowitz
o
D did not use
force sufficient to prevent resistance by a person of reasonable resolution.
o
Changes in the
Rule
§
State in the
Interest of M.T.S.
·
A male commits
forcible rape under M.T.S. if he has intercourse without securing permission- a
“yes” in words or action before proceeding.
o
Fraud
§
Fraud-in-the-inducement
vs. fraud-in-the-factum
§
Fraud in the
inducement
·
Consent
considered valid and no rape because the woman knows the nature of the act she
is consenting to.
·
Some examples:
o
D pays
counterfeit money to a hooker to have sex.
o
D, a doctor,
induces a woman into sex by falsely telling her that it will cure her illness.
·
Fraud in the
factum
o
Consent invalid
because woman doesn’t know she is consenting to intercourse
o
Example:
§
A doctor acquires
the consent of a woman to insert an instrument in her vagina and in reality
sticks he penis in her vagina.
·
What about the
cases when D falsely pretends to be V’s husband or sexual partner?
o
Majority of
states consider such cases to fall under fraud in the factum and D guilty of
rape.
o
MPC 213.1
§
Rape: A man who
has sexual intercourse with a female not his wife is guilty of rape if:
·
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
·
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
·
The female is
unconscious, or
·
The female is
less than 10 years old
§
Rape is felony of
the second degree unless
·
In the course
thereof the actor inflicts serious bodily injury upon anyone, or
·
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 case the
offense is 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
·
He compels her to
submit by any threat that would prevent resistance by a woman of ordinary resolution;
or
·
He knows that she
suffers from a mental disease or defect which renders her incapable of
appraising the nature of her conduct; or
·
He knows that she
is unaware that a sexual act is being committed upon her or that she submits
because she mistakenly supposes that he is her husband.
o
Rape-Shield
Statutes
§
A judge has
discretion to exclude relevant evidence if its probative value is outweighed by
the risk that it will cause undue prejudice to an opposing party.
§
Traditionally in
rape cases, 3 types of evidence introduced by defense
·
V’s prior
consensual sexual relationship with D
·
V’s prior
consensual sexual history with other men
·
V’s reputation
for lack of chastity
§
Rape-Shield
Statutes deny a defendant in a rape case the opportunity, absent good cause to
the contrary, to cross-examine the complainant, or to offer extrinsic evidence,
concerning her prior sexual conduct with others or her reputation for chastity.
§
Some courts have
held that these laws violate D’s 6th Amendment rights to confront
their accuser with relevant exculpatory evidence.
v
Self Defense
o
Common Law
Self Defense Checklist (N-U-R-I-N-G)
§
Non aggressor’s
response to
§
Unlawful force
based on
§
Reasonable belief
that the victim was threatening
§
Imminent bodily
harm so long as the response is
§
Necessary and
§
Graduated
(proportionate to threat)
o
Non aggressor’s
response (who is the aggressor at the moment of the attack)
§
A non aggressor
may become the aggressor if he uses unnecessary or disproportionate force to
defend against a non deadly attack
§
An aggressor may
become a non aggressor by communicating his withdrawal from the aggression only
to face an attack from the person he originally attacked
§
In some
jurisdictions an innocent victim of a deadly attack may stand and defend
§
In other
jurisdictions he must retreat (if obvious & completely safe) subject to the
castle dweller’s exception (no retreat rule) but some states do not apply this
exception to fellow castle dwellers (must retreat)
o
Unlawful force
based on
§
If the force is
lawful such as lawful force used by a law enforcement officer or by a victim,
officer or third party attempting to thwart a dangerous felony there is no
justification for self defense
o
Reasonable belief
that the victim was threatening
§
The belief must
be actual (subjective) and have some reasonable basis (objective) although
mistaken.
o
Imminent bodily
harm so long as the response is
§
The threatened
harm must be imminent, thus past threats that have now ceased do not qualify.
o
Necessary and
§
The defense must
be necessary in that there is no obvious and completely safe route of retreat.
§
But note in some
jurisdiction an innocent victim of a deadly attack may stand and defend.
§
In other
jurisdiction he must retreat (if obvious & completely safe) subject to the
castle dweller’s exception (no retreat) but some states do not apply this
exception to fellow castle dwellers (must retreat).
o
Graduated
§
The force used to
defend must be proportionate to the threat thus deadly force may not be used to
defend against non-deadly force.
o
MPC 3.04
§
Person not
justified in using deadly force against another unless he believes that such
force is immediately necessary to protect against use of unlawful deadly force,
or of a threat of rape or kidnapping by the other person on the present
occasion.
§
Unreasonable
belief can be defense but not for a reckless or negligent crime.
§
Instead of
imminent threat, MPC uses “immediately necessary on the present occasion”- More
freedom to act.
§
No defense if D
is the original aggressor. Under MPC,
unlike CL, not aggressor if threatened with non-deadly force.
§
Retreat:
Nonaggressor must retreat if he knows he can with complete safety.
§
(FOR OTHER NOTES
ON THIS TOPIC, SEE PP#17)
v
Intoxication
o
Disturbance of
mental or physical capacities resulting from the introduction of any substance
into the body.
§
Alcohol
§
Other foreign
substances
§
Prescribed
medication
§
Illegal drugs
o
Possible defenses
due to voluntary intoxication
§
Voluntary
intoxication may:
·
Negate
voluntariness or actus reus by showing unconsciousness in either specific
intent or general intent crimes.
·
Negate mens rea in
specific intent crimes
·
Negate willful,
deliberate & premeditated 1st degree murder.
·
Demonstrate
temporary insanity
·
Demonstrate
continuing (fixed) insanity as a result of long term intoxication.
o
Involuntary
intoxication
§
Courts recognize
involuntary intoxication in cases where voluntary intoxication is allowed. Some courts are more inclined to consider it
a form of the temporary insanity test.
§
Involuntary
intoxication may include temporary pathological reaction to alcohol that the
actor had no reason to expect.
·
Exception:
California ct. declined to apply involuntary defense when D smoked a cigarette
laced with PCP thinking that it was just a marijuana joint.
o
Model Penal Code
2.08
§
MPC recognizes
intoxication as a defense if it negates an element of the offense
§
If involuntary,
pathological intoxication is an affirmative defense it is a condition
comparable to an insanity defense (temporary or permanent due to long term
intoxication)
§
A person
voluntarily intoxicated may not thereby negate his awareness of the risk caused
by his intoxication, including the substantial and unjustifiable reckless risk
of the conduct at issue.
v
Insanity
o
5 Tests in the
U.S.
§
M’Naghton Rule
§
Irresistible
Impulse
§
Products or
Durham Standard (no court currently uses this)
§
Model Penal Code
§
Federal
Definition
o
M’Naghten Test
§
The accused did
not know the nature and quality of the act that she was doing, or
§
If she did know
it, she did not know that what she was doing was wrong, i.e. the accused at the
time of doing the act did not know the difference between right and wrong.
§
The definition of
the word “know”
·
Some courts apply
the narrow interpretation:
o
The person knows
if she can describe her conduct and can acknowledge the forbidden nature of her
conduct.-formal cognitive knowledge
§
I know I was
strangling her and I knew I was doing something wrong.
·
Some courts
require deeper meaning- affective knowledge
o
Knowledge absent
unless the actor can evaluate her conduct in terms of its impact on others and
appreciate the total setting in which she acts.
§
The term “nature
and quality of her act” may be interpreted narrowly as simply whether the D
knows she is squeezing a neck an not whether she knows that she is causing
pain.
§
The meaning of
the word “wrong”
·
Moral wrong
o
In states that
apply this interpretation, the issue is whether D knowingly violated societal
standards, not whether she believed her conduct was moral
o
Deific Doctrine
§
If D believes
that she is acting under the direct command (not simply approval) of God she is
deemed legally insane.
·
Legal wrong
o
England this
interpretation of “wrong” accepted
o
In U.S. courts
are divided
§
Criticism of this
rule
·
This test does
not recognize degrees of incapacity. It
is limited to grossly unrealistic tests thereby unduly restricting expert
testimony & depriving the jury of the full background of D’s mind.
·
It disregards the
D’s lack of volition to control even though such a person would lack free will
and not be subject to deterrence.
o
Irresistible
Impulse
§
Extension of
M’Naghten Rule, adds a 3rd prong
§
Person is insane
if at the time of offense she
·
Acted from an
irresistible and uncontrollable impulse; and
·
Lost the power to
choose between right and wrong and to avoid denying the act as her free agent
was destroyed, or
·
The D’s free will
has been so completely destroyed that her actions are not subject to it, but
beyond her control.
§
Criticism of the
Rule
·
A majority of
psychiatrists now take the view that they cannot accurately measure the
person’s capacity for self control.
·
Thus “the line
between an irresistible impulse and an impulse not to resist is no sharper than
the line between twilight and dusk.”
o
MPC 4.01
§
A person is not
responsible for criminal conduct, if as a result of a mental disease or defect
he lacks substantial capacity either to appreciate the criminality
[wrongfulness] or to conform his conduct to the requirements of the law.
§
As used in this
article, the terms mental disease or defect do not include an abnormality
manifested only by repeated criminal or otherwise antisocial conduct.
§
This test
combines M’Naghten’s 2 prongs test & irresistible impulse
§
Replaces know
with appreciates
§
Avoids impulse so
that a brooding fact pattern is not excluded
§
Both prongs are
modified by substantial capacity thereby rejecting the much criticized total
incapacity of the M’Naghten test.
§
Many states and
the Federal courts have abolished this test.
v
Battered Women
Syndrome
o
Three categories
§
Woman kills when
in confrontation with the man (instruction of self defense almost always given)
§
Woman kills while
husband asleep (majority of jurisdictions, instruction not given)
§
Woman hires
someone else to kill man (instruction not given in all jurisdictions)
o
Testimony of
expert witnesses very important in BMS cases
o
Ct. allow expert
witnesses if three prongs are met
§
The subject
matter is beyond the understanding of the lay person
§
The witness has
recognized expertise in the field
§
The state of the
pertinent art or scientific knowledge permits a reasonable opinion to be
asserted by an expert
o
Third issue used
to be problematic, but in scientific world, BWS is a generally accepted concept
v
Necessity
o
Actor encounters
the following dilemma: as a result of some force or condition, he must choose
between violating a relatively minor offense, on the one hand, and suffering
(or allowing others to suffer) substantial harm to person or property, on the
other hand.
o
Under CL,
necessity defense if 6 elements are met:
§
The actor must be
faced with a clear and imminent danger (can be imminent threat to another)
§
Defendant must
expect, as a reasonable person, that his action will be effective in abating
the danger that he seeks to avoid
§
There must be no legal
way to avert the harm
§
Harm that the
defendant will cause by violating the law must be less serious than the harm he
seeks to avoid.
§
The lawmakers
must not have anticipated the choice of evils and determined the balance to be
struck between the competing values
§
Defendant must
come to the situation with clean, sometimes immaculate, hands
o
MPC
§
A person’s
conduct is justified if:
·
he believes that
his conduct is necessary to avoid harm to himself or another
·
the harm to be
avoided by his conduct is greater than that sought to be avoided by the law
prohibiting this conduct
·
no legislative
intent to exclude the conduct in such circumstances plainly exists.
§
MPC more flexible
than CL
·
No imminency
requirement
·
D does not
automatically lose defense if he was at fault in creating the necessitous
situation
·
All forms of
necessity qualify: not limited to physical harm to persons and property, may
be employed to homicide
v
Duress
o
Person will be
acquitted for criminal acts (except murder) if:
§
Another person
threatened to kill or grievously injure the actor or a third party,
particularly a near relative, unless she committed the act
§
The actor
reasonably believed that the threat was genuine
§
The threat was
present, imminent and impending at the time of the criminal act
§
There was no
reasonable escape from the threat except through compliance with the demands of
the coercer
§
The actor was not
at fault in exposing herself to the threat
o
Unlike necessity,
duress involves threats from a human being and not some natural threats. Also, not always lesser of 2 evils. E.g. D threats to cut off A’s arm unless he
cuts off B’s arm, A can raise the defense of duress even though equal
evils.
o
Most jurisdictions
treat duress as an excuse and not necessity (justification) defense
o
Utilitarian
arguments in support of duress
§
When person
threatened with bodily injury, the threat of criminal punishment is
ineffective.
§
Also, victim of
coercion is VICTIM. So he does not need incapacitation and rehabilitation
o
Retributive
Arguments
§
A coerced actor
does not deserve to be punished for his actions
§
Some false
statements:
·
Actor under
duress does not have mens rea- false
·
Actor’s actions
are not voluntary- false under the narrow view
·
Actor is not
acting with free will- wrong, made the choice between X and Y
o
Majority of
states, duress no excuse for homicide
§
Minority of
states, duress defenseà mitigates to manslaughter
o
Escape from
Intolerable Prison Conditions
§
Majority of
modern courts allow the defense of necessity or duress but most require the
escapee to turn himself to the authorities once reached the point of safety
§
Lovercamp
Decision sets some requirements
·
The prisoner is
faced with a specific threat of death, forcible sexual attack or substantial
bodily injury in the immediate future;
·
There is no time
for a complaint to the authorities or there exists a history of futile
complaints which make any result from such complaints illusory;
·
There is no time
or opportunity to resort to the courts
·
There is no
evidence of force or violence used towards prison personnel or other innocent
persons in the escape; and
·
The prisoner
immediately reports to the proper authorities when he has attained a position
of safety from the immediate threat.
§
People v. Unger
·
not all of
Lovercamp elements need to be met in order to use the defense of duress.
§
Situational
Duress: natural forces that compel a person to commit an equal or greater evil,
rather than a lesser one
o
MPC: duress a
defense if: 1. she was compelled to commit the offense by the use, or
threatened use, of unlawful force by the coercer upon her or another person;
and 2. a person of reasonable firmness in her situation would have been unable
to resist the coercion
§
No defense if
defendant recklessly placed herself in the situation
§
MPC broader than
CL
·
Does not require
imminent deadly threat
·
Defense of
general applicability- can be used in homicide cases
·
Imperiled person
does not have to be the defendant or a close family member
·
Both CL and MPC
require bodily threats. Threats to property or reputation does not meet the
muster.
v
Attempt
o
A criminal
attempt occurs when a person, with the intent to commit an offense, performs
any act that constitutes a substantial step toward the commission of the
offense
o
Complete but
Imperfect Attempt
§
Actor performs
all of the acts that he set out to do, but fails to attain his criminal goal
o
Incomplete
Attempt
§
Actor does some
of the acts necessary to achieve the criminal goal, but she quits or is
prevented from continuing
o
Subjectivism
§
In determining
guilt and calibrating punishment, the criminal law in general and attempt law
in particular should focus on an actor’s subjective intentions rather than
focus on her conduct (actus reus)
o
Objectivism
§
Conduct should
not be punished unless its criminality is objectively discernible at the time
that it occurs
o
Utilitarian
Analysis
§
If failed
attempts punished, actor will be deterred.
§
Subjectivist
approach- person who attempts is dangerous regardless of the fact that he was
not successful.
§
Attempt laws
serve a valuable preventive law enforcement purpose
o
Retributive
Analysis
§
Culpability-retributavists
argue that just because person misses doesn’t mean that he doesn’t deserve to
be punished
§
Harm
retributivists argue that an attempter by his actions disturbs the order of
things ordained by law
o
Less or Equal
Punishment
§
Subjectivists
favor equal punishment, objectivists do not.
o
United
States v. Mandujano
§
Preparation alone
is not enough for attempt. There must be some appreciable fragment of the crime
committed, it must be in such progress that it will be consummated unless
interrupted by circumstances independent of the will of the attempter and the
act must not be equivocal in nature.
o
Mens Rea
§
2 intents
involved
·
intentionally
commit the acts that constitute the actus reus of an attempt
·
she must perform
these acts with the specific intention of committing the target crime
o
so attempt
specific crime even if target crime is general
o
**Attempted
murder: only member of the malice quartet that will work for attempted murder
is the first, namely intent to kill.
·
People v.
Gentry
o
In order to
convict for murder, ct. must instruct the jury that they need to find specific
intent to kill. Instruction on intent to
do bodily harm or knowledge that the consequences of defendant’s act may result
in death or great bodily harm is erroneous.
o
Last Act Test
§
Criminal attempt
only occurred when the person performed all of the acts that she believed were
necessary to commit the target offense.
§
Subjectivist and
Objectivists both say that we don’t need to wait for this long
§
Commonwealth
v. Peaslee
o
Physical
Proximity Test
§
For an act to be
an attempt, it must go so far that it would result, or apparently result in the
actual commission of the crime it was designed to effect, if not extrinsically
hindered or frustrated by extraneous circumstances. (But for physical
intervention)
§
People v.
Rizzo
·
4 armed men drove
around looking for V.
·
Court concluded
that in the absence of a victim, the suspects were not dangerously close to
success.
o
Dangerous
Proximity Test
§
A person is
guilty of attempt when her conduct is in dangerous proximity to success or when
an act is so near to the result that the danger of success is very great
§
Holmes observed
that courts consider three factors: The nearness of the danger, the
greatness of the harm, and the degree of apprehension felt.
o
Indispensable
Element Test
§
no attempt if the
actor has not yet obtained control of an indispensable feature of the criminal
plan (e.g. gun for murder)
o
Probable
Desistance Test
§
No attempt until
the actor reached a point where it was unlikely that he would have voluntarily
desisted from his effort to commit the crime.
o
Unequivocality
Test
§
Attempt occurs
when a person’s conduct, standing alone, unambiguously manifests her criminal
intent
v
Impossibility
& Inchoate Offenses
o
Can actor be
convicted for an attempt that cannot succeed?
o
Under Common Law,
legal impossibility is a defense but factual impossibility is not.
§
Factual
impossibility
·
Factual
impossibility exists when a person’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.
·
E.g.
o
Pickpocket
putting a hand in an empty pocket with intent to steal the wallet.
o
Impotent male trying
to have nonconsensual sexual intercourse with a female
o
D shooting at V’s
bed with intent to kill her, but D on this night is out of town.
·
D has shown his
dangerous mind (subjectivists) and carried out his acts (objectivists), but
still crime not committed due to some force outside the power and/or knowledge
of D.
·
Inherent Factual
Impossibility
o
Some states
consider Inherent Factual impossibility as defense
o
IFI involved when
the method to accomplish the crime was one that a reasonable person would view
as completely inappropriate to the objectives south (e.g. “attempting to sink a
battleship with a pop-gun.”)
o
Objectivists
consider this to be a defense because no social harm done.
o
Subjectivists
don’t support this defense because actor still dangerous.
§
Legal
Impossibility
·
Pure Legal
impossibility: when the law does not proscribe the goal that the defendant
sought to achieve.
·
E.g. trying to
sell bootleg liquor after the repeal of the Prohibition laws. OR Trying to burglarize a house at daytime.
·
Also includes
incidents when the actor’s conduct is prohibited but cannot constitute the
offense charged.
o
For example, a
man who touches a woman’s breasts without her consent by thinking that this
will constitute rape, cannot be found guilty of rape or attempted rape. The man
can be found guilty of a crime like assault.
·
Hybrid Legal
Impossibility
o
Actor’s goal is
illegal, but commission of the offense is impossible due to a factual mistake
regarding the legal status of some attendant circumstance that constitutes an
element of the charged offense.
o
Example: Trying
to buy unstolen property with the belief that the property is stolen. Shooting
a corpse thinking that it is alive. Trying to bribe a juror who in fact is not
a juror, etc.
o
Different from
Factual Impossibility because factual mistakes relate to the legal status of
the defendant’s conduct.
o
Due to the
confusion between Hybrid Legal Impossibility cases and Factual Impossibility
cases, many jurisdictions have abandoned HLI defense.
·
MPC 5.01
o
5.01(1) abolishes
the defense of hybrid legal impossibility.
v
Abandonment
Defense
o
Can D be found
guilty of attempt if he voluntarily abandoned before finishing the crime.
§
E.g. People v.
McNeal- D grabbed V and took her to his home in order to rape her. V begged D
and D changed his mind and let V go. Is
D guilty of attempted rape?
o
Under CL, no
defense. Most jurisdictions today don’t recognize.
o
Some that
recognize, abandonment has to be voluntary and complete.
o
Also, no defense
if substantial harm already done or has committed the last act necessary for
the offense (e.g. D stabbed his uncle with the intent to kill him but then
started crying and rushed his uncle to the hospital. Still found guilty of attempted murder)
v
Solicitation
o
a person invites,
requests, commands, hires, or encourages another to engage in conduct
constituting any felony, or a misdemeanor relating to obstruction of justice or
breach of the peace.
o
Under CL,
solicitation a misdemeanor. Even today,
solicitation punished less severely than the target crime
o
Mens Rea
§
Solicitation is a
specific intent crime
§
E.g. A asks B to
pick C’s pocket. A knows that the pocket
is empty. A not guilty of solicitation
but B guilty of attempted pick-pocketing because as seen above factual
impossibility not a defense.
o
Actus Reus
§
Actus resus
complete right when D invites, requests, commands, hires, or encourages another
to commit an offense.
§
For example, A
asks B to commit a crime. A completed actus reus even if B says no or says yes
but does not intend to commit the offense.
o
Innocent
Instrumentality Doctrine
§
A knows that the
television set belongs to B. But he
tells C that it is his set and he wants C to transport the set to his new
home. C not guilty of larceny but A is
guilty of larceny, not solicitation.
o
Solicitation:
Relationship with target offense
§
Solicitation of a
substantive offense is one way of assisting in an offense and ,therefore, of
being held accountable for the other’s criminal acts.
§
E.g. if D
solicits X to kill V, D is guilty of murder via his solicitation. The crime of
solicitation merges with the murder.
§
If D and X agree
to murder V, it is conspiracy and solicitation merges with conspiracy
(solicitation is attempted conspiracy).
o
Conspiracy
§
An agreement
between 2 or more persons to commit an unlawful act or acts.
§
Solicitation is
attempted conspiracy
§
Conspiracy can
occur without solicitation
·
E.g. A asks B to
help him in killing C. No solicitation
but there is conspiracy.
·
A informs B that
he wants to kill C. B also wants to kill
C. Their joint venture not solicitation
but conspiracy established.
o
MPC
§
Actor guilty of
solicitation if
·
“the actor’s
purpose it to promote or facilitate the commission of a substantive offense;
and
·
with such
purpose, he commands, encourages or requests another person to engage in
conduct that would constitute the crime, an attempt to commit it, or would
establish the other person’s complicity in its commission or attempted
commission.
§
MPC vs. CL
§
MPC broader than
CL
·
Under MPC,
solicitation applies to all offenses and not just felonies and serious
misdemeanors.
·
Under MPC, there
is a solicitation to commit an attempt
o
E.g. A asks B to
pick C’s pocket knowing that the pocket is empty. A guilty of attempted solicitation.
o
Under CL, A not
guilty of any crime.
·
Under MPC, the
relationship of the solicitor to the solicited party need not be that of
accomplice to perpetrator.
·
Uncommunicated
solicitation is solicitation under MPC. Attempted solicitation under CL.
§
Defense:
·
D not guilty of
solicitation if he completely and voluntarily renounces his criminal intent and
either persuades the solicited party not to commit the offense or prevents him
from committing the offense.
v
Conspiracy
o
Under CL,
conspiracy is an agreement by two or more persons to commit a criminal act or
to accomplish a legal act by unlawful means.
o
Agreement need
not be expressed
o
Pinkerton Doctrine: a party to a conspiracy is
responsible for any criminal act committed by associate if it 1. falls within
the scope of the conspiracy, 2. is a foreseeable consequence of the unlawful
agreement.
o
MPC 5.03(1)
·
WORK ON IT
o
Actus Reus
§
Commonwealth
v. Azim
·
The prosecution
proved that D1 was driving an automobile in which D2 and D3 were passengers; as
the car drove by V, a pedestrian, D1 stopped the car; D2called V over to the
curb;D2 and D3 got out of the car leaving their doors open, and robbed V; D 2 and
D3 re-entered the car; and D1 drove away.
The court found that a jury could rationally find, beyond a reasonable
doubt, that a conspiracy to rob V had been formed, and that D1, the driver was
a party to the agreement.
·
“…acts on the
part of the co-conspirators have uniformly been held competent to prove that a
corrupt confederation has in fact been formed.”
o
Mens Rea
§
Under CL,
conspiracy is a specific intent crime
·
Criminal
conspiracy occurs when two or more persons 1. intend to agree and 2. intend
that the object of their agreement be achieved. (Both of these prongs must be
met)
·
Mens Rea
Regarding Attendant Circumstances
o
U.S. v.
Feola
§
Drug dealers
planned to assault a customer who was undercover federal agent
§
Charged and
convicted for conspiracy to assault a federal officer
§
Supreme Ct.
upheld the conviction.
§
Some states
follow different reasoning
·
Corrupt Motive
Doctrine
o
Some states apply
this doctrine that states that in addition to the usual mens rea requirements
of conspiracy, the parties to a conspiracy must also have a corrupt or wrongful
motive for their actions.
o
This doctrine
mostly useful in malum prohibitum crimes where the actor conspiring to do
something wrong but does not appreciate the wrong nature of the crime (thus
lacks the corrupt motive).
·
Under MPC, a
person is not guilty of conspiracy unless the conspiratorial agreement was made
with the purpose of promoting or facilitating the commission of the substantive
offense.
·
MPC does not
accept the Corrupt Motive Doctrine
o
Plurality
Requirement
§
One cannot
conspire with himself
§
Under CL, no
conspiracy unless 2 or more people possessed the requisite mens rea (intent to
agree and specific intent that the object of their agreement be achieved).[4]
§
Plurality requirement
does not require that both people have to be convicted in order for there to be
conspiracy (e.g. other person has immunity, or is dead, or is not found).
§
MPC departs
from the plurality requirement approach
§
MPC focused on
the culpability of the actor whose liability is in issue, rather than on that
of the group of which he is alleged to be a part.
o
Number of
conspiracies between same defendants.
§
Under CL, The
precise nature and extent of the conspiracy must be determined by reference to
the agreement which embraces and defines its objects.
§
One agreement to
commit 5 crimesà one conspiracy, not 5.
§
Under MPC, a
person with multiple criminal objectives is guilty of only one conspiracy if
the multiple objectives are: 1. part of the same agreement; or 2. part of a
continuous conspiratorial relationship.
o
Defenses
§
Impossibility
·
Majority view:
neither factual or legal impossibility is a defense to a criminal conspiracy
·
Under MPC,
factual and hybrid legal impossibility are not defense to conspiracy.
§
Abandonment
·
Under CL, once a
offense is complete, abandonment of the criminal plan by a party to the
conspiracy is not a defense to the conspiracy.
·
But an actor’s
abandonment of the conspiratorial objective can be a defense. Some courts require that the person must let
all his partners know that he is abandoning and some go further and require
that person must try to dissuade the others from pursuing their criminal
objectives
·
Under MPC,
abandonment defense if the conspirator renounces his criminal purpose, and
thwarts the success of the conspiracy under circumstances demonstrating a
complete and voluntary renunciation of her criminal objectives.
§
Wharton’s Rule
·
CL rule where an
agreement by two person to commit an offense that by definition requires the
voluntary concerted criminal participation of two persons cannot be prosecuted
as a conspiracy
·
Examples: bigamy,
adultery, incest, etc.
·
Exceptions:
o
If more people
involved than necessary, then all guilty of conspiracy.
o
If two persons
involved in the conspiracy are not the two people involved in committing the
substantive offense. (e.g. A and B conspire for B to commit adultery with C).
§
Legislative-Exemption
Rule
·
A person may not
be convicted of conspiracy to violate an offense if his conviction would
frustrate a legislative purpose to exempt her from prosecution for the
substantive crime. (e.g. the Mann Act which was designed to protect women, and
would be against legislator’s wishes to punish woman for conspiracy).
o
Parties to a
conspiracy
§
How to determine
whether one conspiracy with multiple actors or multiple conspiracies with fewer
actors?
§
Prosecutors want
a single large conspiracy.
§
Determination of
structure has important consequences
·
Expanded
liability of parties for substantive offenses;
o
Liability for
each target offense (Pinkerton rule)
o
Use of hear say
evidence
§
An out of court
statement made by conspirator while participation in a conspiracy may be
introduced in evidence against her co-conspirators.
·
Joint trial
o
Greater
efficiency; and likelihood of a guilty by association
·
Overt-act
requirement
o
A single overt
act of one conspirator in furtherance of agreement renders a prosecution
permissible against every other party of the agreement (the overt act
inculpates all in the broader structure)
·
Venue
o
Trial may be
brought where the agreement is formed or an overt act performed.
o
Structure of
Conspiracies
§
Wheel
Conspiracies
v
·
Kotteakos
v. U.S.
o
Brown (hub)
served as a broker for 31 persons for obtaining fraudulent loans from the
government. He and the loan recipients
were indicted on one count of conspiracy.
·
For wheel
conspiracies, there must be a rim, i.e. a connection between the spokes in
order for the wheel conspiracy to be complete.
Thus it must be shown that the spokes view their contacts with the hub
as part of a broader plan.
o
Chain
Conspiracies
§
Several layers of
personnel (links in a chain) dealing with a single subject matter, as opposed
to a specific person. These structures
often exist in business-like criminal activities, in which each person or group
has specialized responsibility that link together various aspects of unlawful
conduct.
§
Example: D1 sells
counterfeit money to D2 who in turn sold it to D3, who passed it in commerce to
innocent persons. D1 argued he only
conspired with D2. D1 was linked to D2,
only and D2 to D3.
§
Longer the chain,
the weaker the links become.
§
Bruno v.
U.S.
·
Bruno and 87
other persons were prosecuted for conspiracy to import, sell and possess
narcotics. The evidence showed that a
group of persons whose object it was to smuggle narcotics through the Port of
New York distributed the drugs through middlemen to retailers in New York and
other retailers serving the Texas-Louisiana region. The retailers distributed the drugs to
individual addicts. No communication
between the importer and any of the retailers or between the New York Retailers
was proved.
·
This conspiracy
can be seen in 2 ways
o
Two chain
conspiracies (importers, middlemen and separate state retailers) i.e. the
Importer-Middleman- NY retailer; & importer-middleman- Texas-Louisiana
region.
o
As a chain
conspiracy with spokes at the ends. Thus
the importers are linked to the middlemen, at which point the various retail
groups become spokes connected to middlemen.
o
Common Law
Analysis
§
To be regarded as
co-conspirator, person need not know the identity or existence of every other
member of the conspiracy, not must she participate in every detail of the event
or conspiracy.
§
But she must have
general awareness of both the scope and the objective of the enterprise.
§
Communication
between co-conspirators not required.
§
Wheel
Conspiracies
·
The prosecutor
must demonstrate that the spokes viewed their contacts with the hub as part of
a plan broader than any individual spokes’ relationship with the hub
·
What is requires
is a shared, single criminal objective not just similar or parallel objectives
between similarly situated people
·
Neither Bruno nor
Kotteakos wheel conspiracies under CL
·
Anderson v.
Superior Court
o
D, an
abortionist, hired 17 persons and paid them finders fee to refer pregnant women
to him. D, the hub, and 17 people,
spokes, hand ongoing relationship and shared common goals. So wheel conspiracy under CL.
§
Chain
conspiracies
·
Easier to prove
than wheel conspiracies
·
In one case,
chain conspiracy because salesmen “by reason of his knowledge of the plan’s
general scope, if not exact limits, sought a common end, to aid in disposing of
whiskey.
·
In Bruno, ct.
found chain conspiracy because the importer, middlemen and geographically
retailers knew of the existence of each other (in broader sense) and each
depended on the other to carry out the broader venture.
o
MPC 5.03
§
5.03(1)
·
A person is
guilty of conspiracy with another person or persons to commit a crime if with
the purpose of promoting or facilitating its commission he:
o
Agrees with such
other person or persons that they or one or more of them will engage in conduct
that constitutes such crime or an attempt or solicitation to commit such crime;
or
o
Agrees to aid
such other person or persons in the planning or commission of such crime or of
an attempt or solicitation to commit such crime.
§
5.03(2)
·
If a person is
guilty of conspiracy knows that a person with whom he conspires to commit a
crime has conspired with another person or persons to commit the same crime, he
is guilty of conspiring with such other persons or persons, whether or not he
knows their identity, to commit such crime.
§
U.S. v. Bruno
under MPC
·
I & M, to
violate statute X (import)
·
I & M, to
violate statute Y (distribute)
·
M & New York
Retailers (R-NY) to violate statute Y
·
M & Texas
Retailer (R-T) to violate statute Y.
·
Results
·
I knew that M,
with whom she conspired to violate statute Y, would also conspire with R-NY and
R-T to commit the same offenses. Therefore, I is guilty of conspiring with both
retailers to violate Y.
·
However the
retailers did not know that M conspired with I to violate statute Y. Therefore, the retailers are not guilty of
that conspiracy. Under the unilateral
approach of 5.03(1), I is guilty of conspiring with them to violate statute Y.
·
CL= bilateral
MPC= unilateral
v
Accomplice
Liability
o
Common Law
Terminology (most states have not repealed)
§
Principal in the
first degree
·
Person who
personally commit the offense or uses an innocent instrumentality to commit the
offense
·
Innocent-instrumentality
doctrine
o
A person is
principal in the first degree if he coerces or dopes an innocent person to
commit the offense.
§
Principal in the
second degree
·
Intentionally
assists the principal in the first degree during the offense and is present at
the crime place[5]
§
Accessory before
the fact
·
Helps in the
commission of the offense but is not present at time the offense is being
committed.
§
Accessory after
the fact
·
Intentionally
assists the felon to avoid arrest, trial, or conviction.[6]
o
Actus reus
§
S’s assistance of
P in the commission of the offense.
§
This may take the
form of solicitation for the offense, active assistance in the commission of
the crime, encouragement of the offense, or failure to prevent the commission
of the crime if S has such a legal duty
§
S is liable even
if P had committed the crime anyways.
§
If S is present
at the crime and intends the crime to go through, he is not accomplice unless
he assists in the crime.[7]
o
Mens Rea
§
2 prongs
·
Intent to assist
P; and
·
The intent that P
commit the offense charged (required mental state for the offense, which may be
inferred from the facts).
o
Natural and
probable consequences doctrine
§
If A assists P in
the commission of a crime, he is responsible for any other crimes that are the
natural and probable consequences of the main crime.
o
MPC (MPC rejects
the Pinkerton Doctrine)
§
Has
innocent-instrumentality doctrine (D must possess the mental state sufficient
for the crime.
§
A person is an
accomplice if he:
·
Solicits the
offense
·
Aids, agrees to
aid, or attempts to aid in its commission or
·
Fails to make a
proper effort to prevent commission of the offense in which he had the legal
duty to act
§
Compared to CL
·
“agrees to aid”
o
higher
responsibility than CL but less than the Pinkerton Doctrine.
·
Attempt to aid
o
Expands the CL
because accomplice if actor tries to but fails to assist.
§
Mens Rea
·
Person must act
with the purpose of promotion or facilitating the commission of the offense
§
Code abolishes CL
distinctions between principals and accessories.
§
Accomplice not
liable if his conduct is inevitably incident to the commission of the offense
(e.g. a John)
§
Person not
accomplice if he abandons his participation before the crime is committed and
·
Neutralizes his
assistance, or
·
Gives timely
warning to police, or
·
Prevents the
commission of the crime in some other fashion.
§
Unlike CL, S can
be convicted for accomplice even if P escapes conviction.
o
Limits to
Accomplice Liability
§
Legislative-Exemption
Rule
·
A protected
person cannot be prosecuted as an accomplice
o
E.g. In statutory
rape, the underage female is not an accomplice.
§
Abandonment
·
Accomplice must
communicate his withdrawal to the principal and make bona fide efforts to
neutralize the effect of his prior assistance.
o
Accomplice
liability vs. Conspiratorial liability
§
Conspiracy: an
agreement between two or more individuals is all that is needed. Actual assistance not required.
§
Accomplice
liability requires proof that an actor at least indirectly participated
(assisted) in the crime; an agreement to do so is not needed.