The Law School Authority

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.


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.


-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


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 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.


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.



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)


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


  • 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.

[1] Very important for the test.

[2] Remember, if crime does not state specific mental state (e.g. rape), MPC allows Purposely, Knowingly, Recklessly, but not knowingly.

[3] Remember, Common Law did not have degrees!

[4] Therefore, no conspiracy if other person is undercover police officer.

[5] Present means that he is close enough to render aid to principal in the 1st degree at the time the offense is being committed (e.g. getaway driver).

[6] Under CL, accessory after the fact guilty of the same offense as P in the 1st degree.  But most modern states now hold acc after the fact for lesser punishment.

[7] Doesn’t take much though.  Just your mere presence can be considered encouragement to P.

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