Criminal Law Bullet Outline I. Intro Note on Punishment II. Culpability (MPC 2.01-02) A. MPC 2.01(1) 1.

Liability must include voluntary act or omission to perform an act of which he is physically capable. Convulsions, reflexes, etc. dont count B. Acteus Reus-Overt & Voluntary Conduct 1. Martin v. State (p.173) a. A person may not be guilty of a crime if the act is not voluntary. D did not appear drunk in public voluntarily 2. People v. Newton (p.175) a. Unconsciousness when involuntary is complete defense to murder since not a voluntary act B. Omissions 1. MPC 2.01(3)-No liability for omissions unless duty to perform omitted act provided by the law. (4)-Possession an act if knowingly procured or received the possession 2. Pope v. State (p.183) a. One who charitably brings strangers into her home is not criminally liable for child abuse the parent commits, if they have no legal responsibility for the child. 3. Jones (p.190) a. If one is criminally charged w/omission causing harm, government must prove legal duty to act. 4 situations create legal duty, in Jones. C. Mens Rea 1. MPC 2.02 (Culpability Requirements) (p.1041) a. A person is not guilty of an offense unless he acted purposely, knowingly, recklessly, or negligently, as law may require, in each material element of the offense. All these are defined in 2.02(2) 2. Intro Note a. Mens Rea is a guilty or wrong purpose, a criminal intent. The intent required is not the same for all crimes. b. Malice is a criminal state of mind where D is subjectively aware of likely harmful results of actions, yet he still carries

them out w/o an excuse. Reckless or wanton disregard actions can count also c. General Intent- has mens rea but not specific reckless/negligence
(battery, 2nd degree murder) (At CL)

d. Specific Intent-crimes whose definition describes what the is

thinking-intent/knowledge (i.e. burglary, larceny, receiving stolen property, common law rape) (At CL)

3. Regina v. Cunningham (p.204) a. One cannot be convicted or maliciously doing something that they did not intend to do and did not foresee the result. Must have been at least reckless. b. Cunningham principle-must have mens rea 4. Regina v. Faulkner (p.206) a. Reversed sailors arson conviction, holding that one cannot be charged with arson when only trying to steal rum 5. MPC (p.208) a. No criminal conviction w/o some element of mental culpability, no strict liability. D. Mistake of Fact (MPC 2.04) (p.1043) 1. MPC (2.04 (1)(2) a. Ignorance/mistake to fact or law a defense if: b. 1) It negates the purpose, knowledge,required to establish a material element of the offense OR c. 2) Law provides that such state of mind est. by ignorance constitutes a defense d. This defense is NOT available if D would have been guilty of another offense had the situation been as he supposed. BUT, the mistake shall reduce the grade/degree of the offense e. Thus, the acteus reus sets the maximum bounds, and the mens rea can lower but not raise 2. Westin says Mistake of Fact always a defense but not mistake of law under MPC 3. Regina v. Prince (p.226)

a. A reasonable but mistaken belief in a particular fact is no defense to a strict liability crime (unlike MPC). 4. People v. Olsen (p.230) a. A reasonable belief that female is over 16 is not a defense to lewd conduct with child under 14 charge. That mistake defense affects sentencing but not guilt, and children under 14 need special protection E. Strict Liability 1. Introduction (p.235) a. SL criminal statutes used for regulatory measures like drug crimes, for the greater common good b. MPC 2.05 argues against strict liability if its a criminal conviction with probation or imprisonment. 2. Morissette (p.237) a. While there is no Mens Rea required for SL criminal statutes, when legislature does not state mens rea needed, then assumed to be there. If not stated, then common law mens rea for that crime by default. 3. Staples (p.241) a. Congress must declare its intent to dispense with the mens rea, otherwise it is assumed to be there. 4. SL at Common Law (p.244) a. Departures from MPC insistence on mens rea include statutory rape, bigamy, and felony-murder, among others 5. State v. Baker (p. 247) a. Malfunction of a non-essential part of car cannot be a defense to a SL criminal act, since he turned the cruise control on. 6. Regina (p.249) a. Canadian Supreme Court held that imprisonment for an absolute liability offense is unconstitutional. Suggested three categories of crime 1) Prove mens rea 2) no need to prove but D can refute (RIL) and 3) true SL 7. MPC & Note on culpability & excuse (p.255) a. No probation, imprisonment, or criminal conviction w/o any mens rea proven. F. Mistake of Law 1. MPC 2.04(3)-

a. Legal mistake defense only if: statute not published (or made reasonably available), acts on reasonable reliance of official statement in statute, judicial decision, or administrative order. 2. Marrero (p.255) (MPC District) a. Misinterpretation of a statute is not a defense to a strict liability crime, which does not require intent. Weapons possession a SL crime, so no mistake of law defense. 3. Cheek (p.263) a. For certain laws like tax laws, specific intent is required. Thus, no mens rea if a good faith belief, no conviction. But, here it was partly a researched conclusion, so remanded for new trial. 4. Liparota a. No liability for those who have no reason to know they are breaking the law (by buying food stamps). This is really mistake of law though, not fact. 5. Albertini (p.268) a. Official reliance on judicial decision is protected even if it is later overturned. No criminal liability. 6. Lambert (p.271) a. Requirement for convicts to register violates due process when they are prosecuted and had no knowledge of the duty. Fair notice is essential to due process. b. Omissions treated more leniently under mistake of law III. Rape (MPC 213) A. Intro 1. Intro note (p.318) a. Historically, women held responsible for avoiding rape, and there was an exemption for husbands raping their wives. b. At common law, non-consensual & non-forceful intercourse only criminal if underage, unconscious, or mentally incompetent. 2. MPC 213 (p.1082) a. Marital exemption to rape and male on female gender notions preserved

b. Rape if compels submission by force or by threat of imminent death/injury, or impairs other, or female is unconscious c. Gross Sexual imposition for pressure that is unfair but short of physical force d. 213.2-Deviant sexual intercourse if one does or causes another to have sexual intercourse by force or threat B. Acteus Reus 1. Rusk (p.323) a. The reasonableness of a rape victims fear is a factual question for the jury, must be shown to obviate need for proof of force or resistance. Must be objectively reasonable 2. Mlinarich (p.334) a. Non-physical threats (such as being returned to detention center) are not a threat of forcible compulsion. Same in Thompson with threat to not let graduate. 3. State in the Interest of MTS (p.338) a. Physical force does not mean the use of force to overcome lack of consent, but any penetration done without affirmative and voluntary consent is sexual assault. C. Mens Rea 1. Sherry (p.351) a. The subjective belief that the victim consented is not a defense. Victim does not nee to use physical force to resist as long as lack of consent is honest and real. 2. Fischer (p.354) a. Reasonable mistake as to consent is not a defense. Cannot argue a mistake of fact here. D Problems of Proof 1. Corroboration & Jury Instructions (Wiley) (p.371) a. Concerns about unfounded rape charges influence evidentiary requirements of corroboration, jury instructions about victims credibility, and rules of cross-examination b. Wiley-shows historical fact that needed two witnesses to a crime, even to the crime of rape 2. Cross Examination & Shield Laws (State ex rel Pope) (p.375)

a. Evidence of a victims unchaste character cannot be used to impeach his/her credibility unless its value outweighs its inflammatory effect (refuting physical evidence for example) IV. Homicide (MPC 210.0-5) A. Introduction 1. Defined a. The killing of another human being, without excuse or justification makes it a crime 1. MPC (p.1076) a. 210.1-Criminal homicide if purposely, knowingly, recklessly, or negligently cause death of another human being. b. 210.2-Murder is criminal homicide committed knowingly, purposely, or recklessly under circumstances manifesting extreme indifference to the value of human life c. 210.3-Manslaughter is reckless criminal homicide, OR homicide under the influence of extreme mental or emotional disturbance for which there is reasonable explanation. d. 210.4-Negligently committed homicide is negligent homicide 2. At CL-Needed mens rea to kill, a depraved heart, and/or malice aforethought B. Legislative Grading of Intended Killings 1. Carroll (p.396) a. Even if period between forming the intent to kill and actually killing is short, if it was willful and intentional it is still 1st degree murder. 2. Guthrie (p.400) a. Premeditated cannot be instantaneously forming intent and killing, otherwise no difference 1st & 2nd degree murder C. Provocation (which allows manslaughter instead of M2) 1. Girouard (p.405) a. Words alone cannot inflame the passions of reasonable persons, which mitigates down to manslaughter at CL. 2. Maher (p.407)

a. Men of average disposition is the standard and the provocation need not happen in D presence, if it would provoke a reasonable man before cooling time occurs. b. D saw his wife and another man go into the woods and he was told that were having sex, which is sufficiently provocative to be a jury question. This is dominant CL view. 3. Casassa (p.415) (MPC case) a. MPCs extreme mental or emotional distress test requires an objective and subjective standard. It is a two prong test: an act done under extreme emotional disturbance (subjective) and a reasonable explanation for that disturbance as viewed by person in Ds shoes, viewing situation as he viewed it D. Distinguishing Civil from Criminal-Criminal Negligence 1. Welansky (p.425) a. Omissions like failing to take due care in disregard of likely harmful consequences is wanton and reckless, and therefore criminally negligent. b. There is a duty of care in a business establishment that is based on an objective standard; even if D was so stupid he thought he was being careful E. Objective vs. Subjective Standards of Liability 1. Williams (p.431) a. Ordinary negligence is enough to impose criminal liability in Washington when negligence was proximate cause of the death. It is objective standard-man of reasonable prudence F. Depraved Indifference-Manslaughter vs. M2 1. Malone (p.439) a. An act of gross recklessness (such as Russian Roulette) exhibits the hardheartedness and wicked disposition necessary for malice, no ill will needed 2. Fleming (p.443) a. A killing due to reckless drunk driving establishes enough malice aforethought for murder. G. Felony Murder-Basic Doctrine 1. CL Definition a. Any homicide committed while committing or attempting to commit a felony was murder. No intent or negligence

required. Causation must still be proved, but for & proximate cause 2. 3 limitations of F/M b. Causation (King) c. Inherently Dangerous Felonies (Phillips, Satchell) d. Merger (Smith) 3. MPC & F/M (p.454) a. Rejects F/M, but says felonies committed recklessly manifesting extreme indifference to human life create a rebuttable assumption that can be contested by the defendant 2. Serne (p.448) (Common Law) a. F/M should only apply when the act is known to be dangerous to life and likely to cause death by itself 3. Stamp (p.450) a. D robbed store and shortly afterwards the owner had a heart attack. Ds conviction for 1st degree murder was upheld since you take your victim as you find him 4. King (p.451) a. Appellate court reversed F/M conviction saying crash was not a foreseeable result. Must be proximate cause. H. F/M-Inherently Dangerous Felony Limitation 1. Phillips (p.459) a. Only such felonies as are inherently dangerous to human life can support F/M. The felony of grand theft in the abstract is not an inherently dangerous felony. 2. Stewart (p.464) a. Rejecting abstract evaluation & looking at the particular facts in each case to decide if the felony was inherently dangerous in the manner and circumstances committed I. F/M-Merger Doctrine 1. Smith (p.466) a. F/M does not apply to felonies that are part and parcel of the homicide. They merge. To apply F/M in cases of assault leading to death would negate discussion of malice aforethought in most cases of murder.

J. F/M-Killings Not in Furtherance of the Felony 1. Canola (p.471) a. No conviction for death of co-felon, not the intent of the common law. F/M based on an agency theory: D or an agent of D must commit crime, not the police or intended victim. b. If a proximate cause theory were used, Canola would be on the hook, since the death of a robber in an armed robbery is foreseeable 2. Taylor (p.477) (Vicarious Liability) a. D nailed on vicarious liability theory. The mens rea is implied by felons conscious disregard for life. The felons provoked the owner and started the gunfight so can hold one for the death of the other at the hands of the owner. b. Kutz likes Taylor case cause it goes to the heart of criminal law & the need to prove intent. Taylor is like a case of a three way transferred mens rea-other robber to the owner to him V. Causation & Attempt (MPC 2.03, 2.06, 5.01) A. MPC 2.03 (p.1043) 1. 2.03(1) a. Requires But For Causation 2. 2.03(2)(3) Purposely, Knowingly, Reckless, & Negligent Crimes a. Transferred Intent OK b. Result must involve same kind of harm as that contemplated and is not too remote or accidental in its occurrence to have a just bearing on the actors liability B. Foreseeability & Coincidence 1. Acosta (p.518) a. D drove stolen car on high speed chase, & 2 police helicopters crashed due to pilot error. Court held that Ds actions were a But For and therefore proximate cause of the deaths. b. No malice however since D did not consciously disregard risk the helicopter pilots. Foreseeability not necessary for conviction though under common law. 2. Arzon (p.521) a. Ds actions do not have to be the sole cause of death to support a murder conviction if D acts with depraved indifference to human

life. As long as the harm was foreseeable criminal liability exists. 3. Warner-Lambert (p.523) a. Court said the Ds in a factory where explosive material was being used (and were warned as such) were not liable for an explosion that killed many cause Ds actions were not a sufficiently direct cause of the deaths b. Kutz says this decision wrong, not followed anywhere. 4. Main (p.527) a. D was fleeing traffic stop, and crashed. His passenger was trapped inside, and the officer did not move him, which caused him to die since he could not breathe. b. Trial Judge refused to tell jury it could find that Ds actions not proximate cause of death, and appellate court reversed, saying must give those instructions. C. Subsequent Human Actions 1. Campbell (p.530) a. Providing a weapon to one who uses it to commit suicide is not homicide. D hoping he would kill himself is not enough intent 2. Kevorkian (p.531) (Common Law & physician assisted suicide) a. Intentionally providing means for another to commit suicide is not murder. Only if death is direct and natural result of Ds acts can there be a murder charge b. Kutz-the persons free and fair choice is key here 3. Stephenson (p.537) (Intervening Acts & Causation) a. One can be convicted of murder for injuring another in a way that contributes substantially to death, even if the victim selfinflicted harm due to Ds conduct. D. Recklessly Risking the Result 1. Root (p.545) (Minority position) a. Tort concept of proximate cause not appropriate in criminal context; a more direct causal connection is required. b. This was drag racing where only other drag racer killed 2. McFadden (p.548) (MPC & dominant position)

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a. Drag racing case where one driver killed himself and an innocent party. The other driver was convicted for both deaths for involuntary manslaughter b. D guilty for aiding and abetting, vicarious liability (for innocent persons death), and proximate cause met. Civil standard of proximate cause proper in criminal cases. 3. Atencio (p.550) (Causation in Russian Roulette) a. Criminal liability for all players in Russian roulette. Ds actions constitute wanton and reckless conduct. Manslaughter here, where it was M2 in Malone VI. Attempt (MPC 5.01) A. Intro 1. Common Law a. Attempts were misdemeanors at common law, must have been in dangerous proximity to completion (Simon). Much more than substantial step + corroborative in MPC. CL distinguishes between preparation & attempt, MPC doesnt b. Harder to commit attempt at CL than MPC (to allow for repentance), but no room for abandonment of attempt at CL. No transferred intent for attempts at CL. c. Attempts in statutes are a reduced factor of the punishment of the completed crime except in MPC districts. 2. MPC 5.01 (p.556) (p.1060) a. MPC treats all attempts, solicitations, and conspiracies as the same as the completed crime attempted except for crimes punishable by death or life imprisonment. b. 5.01(1) Attempt-If purposely engaging in conduct which would constitute the crime if circumstances were as he believes them to be OR c. Purposely does or omits to do anythingconstituting a substantial stepto culminate in his commission of a crime. d. A substantial step is strongly corroborative of actors criminal purpose

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e. 5.01(4) Renunciation of criminal purpose-A complete and voluntary renunciation of criminal purpose is an affirmative defense B. Mens Rea (Intent necessary for completed crime) 1. Smallwood (p.556) a. HIV D raped 3 women w/o condom, court held that assault with specific intent to murder must be proven, not enough evidence here to infer that. One cannot conclude that death by AIDS was sufficiently probable to justify this inference b. Simon-recklessness not enough for attempt, must be purposeful. Attempt requires less acteus reus and no causation, so higher intent required. C. Preparation vs. Attempt (CL & NOT MPC Distinction) 1. Rizzo (p.565) (Preparation short of Attempt at CL) a. Ds looking for payroll guy to rob but dont find him. Acts must be so near to accomplishment that in all reasonable probability the crime would have been committed (but for interference). b. No physical proximity here, no opportunity to complete crime 2. McQuirter (p.569) (Following & Lingering as Attempt) a. White jury in south said black man who followed/lingered after white woman of attempt to commit an assault w/intent to rape 3. Jackson (p.575) (MPC case-Last Proximate Act not Required) a. Opposite of Rizzo (except found bank but passed it), but convicted w/o last proximate act since MPCs substantial step fulfilled. 4. Church (p.582) (MPC agrees) a. D contracted out the murder of his wife, which was staged. Court said that solicitation is an attempt even if the crime is never consummated. Disagreed w/Davis (below). C. Impossibility 1. Note on Factual & Legal Impossibility a. No difference under MPC unless D thinks his action is illegal and it is not, then no crime. But factual impossibility (picking an empty pocket) is still an attempt. 2. Jaffe (p.585) (CL-Factual Mistake a Defense) a. D received goods he thought were stolen, but they were not. Court held that factual mistake is a defense.

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b.

D could not have completed a crime, and belief that property is stolen does not fill statutory requirement of knowledge

3. Dlugash (p.587) (MPC district, eliminating impossibility defense) a. D shot a man who may have already been dead. Court said a person may be guilty of attempt if the completion of the crime was impossible, since D is just as dangerous even if crime was impossible. b. MPC says imagine world as D imagines it, and if it would have been a crime, then he is guilty. 4. Note on Federal Law a. It is completely statutory, so CL cannot fill gaps. Thus, in Oviedo D got off of selling heroin when it was a legal substance, since it was legally impossible. VII. Accomplice Liability A. MPC 2.06 (p.1044) Liability for Conduct of Another, Complicity 1. 2.06(1) a. Person guilty of offense of another if legally accountable for them 2. 2.06(2) Legally accountable for another IF: a. Acting w/sufficient culpability he causes innocent person to engage in such conduct OR he is accomplice of such person in offense 3. 2.06(3) One is an accomplice IF: a. W/purpose of committing offense, he solicits such other person to commit it, aids/agrees/attempts to aid other person in committing it, OR having legal duty to prevent it he doesnt B. Complicity as Attempt-Solicitation 1. Davis (p.581) (CL-solicitation alone is no attempt) a. Solicitation of murder is not enough to be the overt act for an attempt if D does not act on the solicitation. Solicitation is a separate crime from attempted murder. b. However, solicitation and complicity the same under MPC 2. Modern Accomplice Liability rules-All participants are principals, and all are punished the same. Only an after the fact helper is an accessory. A criminal conspiracy is an agreement by two or more persons to commit a crime.

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D. Mens Rea 1. Background a. Accomplice charged same as principal. He could be absent, or only shouting encouragement, to be accomplice b. Accomplice MUST have specific intent for mens rea to make up for lesser acteus reus, if it is a crime of specific intent. Needs same intent as principal. 2. Hicks (p.607) (Must have Intent to Assist, same intent as principal) a. Words encouraging murder must be used with the intention of encouraging murder, otherwise no mens rea and no accomplice liability b. Hicks is still good law, complicity only when accomplice has the same intention 3. Gladstone (p.611) (Need Intent to Associate) a. D suggested a guy to buy weed from. Conviction reversed, court said aiding and abetting means one must do something to associate or connect themselves with the principal b. No nexus here, no association w/success of the venture, so no liability 4. Luparello (p.615) (Violates Hicks Principal w/Vicarious Liability) a. D told friends he wanted info from a guy about his ex. On second visit, w/o him, they killed the guy. b. Court held D liable for unintended act of his friends, saying that liability extended beyond intended crime to criminal harms naturally and forseeabley put in motion. CL case here. c. This is like F/M, dont need same mens rea as killers if result was reasonably foreseeable from your actions. Only constructive presence needed for accomplice liability. 5. Xavier (Actual Knowledge Necessary in SL AL Crime) (p.621) a. No liability for aiding and abetting an ex-felons possession of a gun w/o knowledge he was an ex-felon. This knowledge required for conviction 6. McVay (Results-oriented accomplice liability) (p.623)

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a. Three killed from negligence when boiler on a streamer ship blew up. D convicted as accessory before the fact for manslaughter that occurred through negligence, & court upheld b. Ds negligence in creating excess steam sufficient to overcome lack of intent to kill, since this is a result-based crime. KutzMcVay says that if culpable parity in state of mind bet. principal & accomplice-liable. Necessary expansion of Hicks says Kutz 7. Russell (Community of Purpose = accomplice liability) (p.624) a. Three Ds had a gun battle in public, and a stray bullet killed a bystander. State didnt know whose bullet it was, but convicted all three of M2 for depraved indifference b. Court held that there was sufficient community of purpose needed for accomplice liability, showing reckless indifference by having street gun battle. Accomplice liability needed since cant prove which bullet killed: an alternative to proving causation. D. Acteus Reus 1. Wilcox (p.628) (Encouraging Illegal Act is Acteus Reus) a. Acteus Reus of accomplice liability fulfilled by encouraging an illegal act, in this case by being a paid spectator and publishing an article about it. 2. Tally Hypos (p.629 & on email) E. Relationship between liability of the parties 1. Hayes (p.633) (No liability for accessory if no intent from principal) a. D agreed to rob store w/other guy, who set him up and told cops. Other guy broke in & handed him bacon, and D convicted. b. Court reversed since principal did not have requisite mens rea, & did not intend to rob it, then no common motive or design so no liability. Opposite of Wilson case (p.610) c. Kutz-MPC 5.01(3), the attempt to aid principal, denies the Hayes principle. Hayes could be convicted under MPC. 2. Exceptions to Needing Guilty Principal for Guilty Accomplice a. General Rule is no accomplice liability if no principal liability, but exceptions are:

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b. Innocent Agent-Getting one to do something unwittingly, through force, etc. for you. c. Feigned Cooperation cases-In Vaden (p.634), law enforcement sting works (unlike in Hayes) to nail accomplice & not principal, but the acteus reus was enough in Vaden d. Principal has personal immunity-like diplomatic, spousal, law enforcement, etc. e. Principal cant be convicted cause dead, fled, or even acquitted (in which case can still nail the accomplice) VIII. Conspiracy (MPC 5.03) A. Intro 1. Conspiracy Defined a. An agreement w/two or more people to do unlawful act. One exception to no hearsay rule is co-conspirator during conspiracy exception, & the admissions exception if D says something that harmful to himself. 2. MPC 5.03 Criminal Conspiracy (p.1062) (p.722) (see below) a. 5.03(1)(a)-a PURPOSEFUL agreement w/one or more that one or more will engage in conduct that is a crime/attempt/solicitation to commit the crime OR b. Agrees to aid such other person(s) in the planning or commission of such crime/attempt/solicitation c. 5.03(5)-Overt act must be done by one of the conspirators, agreement alone not enough. Scope of conspiracy extends to others committing the SAME CRIME as agreed. Purpose & interdependence required (5.03(2). d. 5.03(6)-A complete & voluntary renunciation of the criminal purpose is an affirmative defense e. MPC allows one of two conspirators to be undercover cop (Garcia) (unlike at CL), & does not allow additional conspiracy sentencing on top of completed crime. Specific Intent required 3. At CL a. Conspiracy a misdemeanor and it merged into substantive crime if completed. Today, conspiracy a separate, punishable offense. Usually requires agreement plus overt act.

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4. 3 Advantages for State in using conspiracy law a. Huge procedural advantages-in venue, hearsay admissibility, joinder, less DP rights, etc. b. Inchoate crime of little substance-extremely preemptive form of law enforcement c. Pinkerton-heavy sentences when used as basis for accomplice liability 5. Krulewitch (p.671) (Hearsay exception only if ongoing conspiracy) a. A conspirators statements against a co-conspirator cannot be used unless made in furtherance of the objectives of an ongoing conspiracy b. The exception exists under theory that a joint enterprise, a partnership & therefore hearsay statements supposedly more likely to be true. Kutz doubts this. B. Conspiracy as Form of Accessorial Liability-All held accountable for crimes of co-conspirators 1. Pinkerton Doctrine (p.684) (No participation needed for Liability) a. Two brothers on farm illegally selling alcohol. One carried out the acts, & other got nailed, even though he was in jail much of the time. b. Once conspiracy agreed on, overt act of another triggers it, and D must have actively withdrew from the conspiracy to be innocent. Liable for crimes even outside scope of conspiracy if reasonably foreseeable. c. No need to prove mens rea or acteus rea, only that once upon a time a conspiracy was made. If an accomplice liability case then must show aiding & abetting, not here. 2. Note a. In McGee, court refused to follow Pinkerton, requiring participation in substantive offense for conviction of that offense b. Relation Back Doctrine-Person who joins conspiracy, if aware of general purpose/past acts, then responsible for those acts also. C. Acteus Reus 1. Interstate Circuit (p.694) (The agreement itself is the acteus reus)

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a. Ds were price fixing movie theatres and the film distributor. Evidence was letter making certain pricing demands for films b. Independently entering into agreement with one and knowledge of the agreement with the rest is enough acteus reus for a conspiracy. All must agree for it to work, & that is enough. Logic of interdependence. 2. Alvarez (p.699) (Concerted action required) a. DEA agent asked D if he would be at drop off site (for drugs), and he nodded and smiled. Court held this was enough, and that D did not actually have to join in an agreement to violate the law to be guilty of conspiracy b. Kutz says this is merging towards Luparello liability, here and Alvarez case on p.691 with minor drug dealer held liable for murder in a drug bust gone bad. 3. COWBOY (p.701) a. Cook on shrimping boat convicted of conspiracy to import weed, court said that knowledge of the action was indisputable and therefore they were guilty by association. E. Mens Rea 1. Intro a. Conspiracy is a specific intent crime, and to be guilty one must have more than mere knowledge, there must be an improper purpose or desire b. Kutz-Intent can be inferred from many factors, such as economic dependence, extraction of supra-market prices, and provision of goods & services w/o innocent use. c. At CL & under statutes, conspiracy can be punished at much earlier points than attempt d. MPC 2.06(3)(a) requires purpose for both conspiracy and accomplice liability. 2. Lauria (p.704) (Knowledge of Conspiracy Not Enough) a. D had telephone answering service, and prostitutes were among his customers. Court said no guilt for conspiracy when D only had knowledge that his services were used to commit misdemeanors when he had no stake in the venture.

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b. Knowledge plus stake in venture, no legit use of goods, or unusual volume of business needed. (See Direct Sales, p.705) E. Scope of Agreement-One or Many Conspiracies 1. Kotteakos (p.714) (Hub of the Wheel Conspiracy) a. 32 Ds, but one D organized and dealt with each separately, the center of the wheel so to speak. Court held that it was many conspiracies, not one big conspiracy. They know of each others existence but no co-dependence, so not one conspiracy. 3. Fork Chain Conspiracy a. As in Blumenthal, this is the opposite of the hub of the wheel conspiracy when all are co-dependent it is one large conspiracy 4. MPC Commentaries on Conspiracy (p.722) a. Limits conspiracy to crimes w/Purpose of facilitating, and parties w/which D has agreed except when same crime is committed by other co-conspirators & D KNOWS it. b. Multiple criminal objectives still one conspiracy in MPC. IX. Exculpation (MPC 3.01-06, 3.10, 4.01-04) A. CL Elements of Self-Defense 1. Threat that is: a. Unlawful b. Immediate c. Use of deadly force OK if faced w/deadly force 2. D must believe in imminent peril & deadly force needed to avert threat 3. Ds belief must be: a. Honestly held b. Objectively reasonable in light of surrounding circumstances B. MPC 3.01-3.06 1. MPC 3.02-Justification of evils (p.1048) a. Conduct justified if harm sought to be avoided greater than that sought to be prevented by the law/offense charged (3.02(1)(a)). See Unger & Lovercamp cases b. No justification if D brought about situation by being reckless or negligent MPC 3.02(2). 3. MPC 3.04 Force in Self-Protection a. Justifiable if actor believes such force is immediately necessary to protect himself against unlawful use of force 3.04(1)

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b. Many limitations though (3.04(2). Can protect others from same harm as well (3.05). If 3.04 not met, then 3.09 4. MPC 3.09 (Reckless/Negligent use of force) (p.1054) a. No justification of S-D if erroneous belief as to use of force or ignorance of statute 3.09(1) b. Negligent or reckless use of force; actor still liable. 3.09(3). Goetz guilty of attempted negligent homicide for example C. Self Defense 1. Peterson (p.750) a. Shows CL requirements for self-defense 2. Goetz (p.751) (Objective Standard for SD) (modified MPC) a. D shot 5 black youths on NYC subway when they demanded $5. Court held that Ds self-defense claim must be based on an objective standard, what reasonable person would do. b. Attempted negligent homicide under MPC (see above) 3. Kelley (BWS) (p.763) a. Court held that expert testimony is admissible as part of a selfdefense claim in a case of a woman killing her abusive husband. 4. Norman (p.776) (No Perfect Self-Defense if no Imminency) a. D was horribly abused by husband, authorities would not help, and she killed husband one night. Court held no instruction on perfect self-defense could be allowed since imminent death or harm could not occur when husband was asleep.

D. Retreat & Initial Aggressor 1. Intro a. CL required retreat before using deadly force, but most jurisdictions dont. No duty to retreat if cannot be done safely of it D in own home b. MPC 3.04(2)(b)(ii)-Retreat necessary if actor KNOWS can avoid using force by retreating of surrendering something, but must be absolutely certain. No retreat from workplace or home under MPC 1. Abbot (p.788) (No Duty to Retreat unless intends to use deadly force)

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a. D attacked by neighbors with hatchet. Court held deadly force not justified if retreat available, but if one does not resort to deadly force, then can stand your ground. Pro-retreat like MPC 2. Peterson (p.792) (Aggressor cannot use Force in SD) a. D protested a theft, but they were leaving. D returned with gun got challenged, and killed the guy. Court held that an aggressor cannot claim Self-defense w/o first withdrawing from conflict. This is majority position. b. MPC says if initial aggressor was not deadly, than can still defend, different from Peterson CL ruling. E. Principles of Excuse-Duress 1. Traditional Rule a. D can claim duress only if threatened w/death or serious bodily harm, and it is never an excuse to murder c. Modern view (MPC 2.09)-duress if threatened so that reasonable person would have succumbed. 1. Toscano (p.845) (MPC case, Using a Subjective test of Duress) a. D made up medial reports due to threats to himself and his wife. Court adapted MPC approach allowing consideration of reasonable person in Ds shoes. 2. MPC 2.09 (p.849) a. 2.09 addresses issues that fail under 3.02s justification of evils defense. A balance by only partially individualizing the standard, but keeping it objective (reasonable) as well. b. 3.02 available regardless of source of peril, but duress only available when D faced w/a Do it or else command, not from a natural condition. (p.854 for scenarios). 3. Fleming & Contento-Pachon (p.855-56) a. Fleming-a POW, helped enemy under threat of slow painful death, and court rejected as not immediate so no duress defense b. Contento-Pachon-Taxi driver forced to carry cocaine under threat of dealers killing wife & child. Appeals court said duress defense should have been allowed. 4. Stasio (p.867) (Eliminating specific & general intent distintions)

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F. Diminished Capacity 1. Kingston (Involuntary intoxication a defense) (p.861) a. Voluntary intoxication no defense unless negates intent for specific intent crime, but involuntary intoxication is a defense. This is general rule. MPC 2.08 b. P.215-217 for NOTE on Specific vs General Intent 1. Brawner (p.919) a. No diminished capacity defense, but expert testimony as to D abnormal mental condition is OK to show he did not possess necessary mental state for the crime. 2. Wilcox (p.921) a. No diminished capacity defense as MNaghten light. Mental capacity already a mitigating factor, so no need for diminished capacity defense. G. Traditional Insanity 1. MNaghten (p.879) (Must know right from wring, appreciate nature/quality of act) a. D shot guy he thought was PM. Acquitted by reason of insanity, for not knowing 1) the nature and quality of his act, OR 2) not knowing it was wrong. Limits evidence to matters concerning understanding 2. Crenshaw (p.905) a. Legal wrong, and not moral wrong, is MNaghten standard. If he would have said G-d was speaking to him then he could have claimed insanity, but not based on his own religion. G. Insanity-MPC Approach 4.01 1. MPC 4.01 a. No responsibility for criminal conduct if 1) D lacks substantial capacity either to appreciate the criminality (wrongfulness) of conduct or to conform conduct to requirements of the law b. Mental disease does not include abnormality manifested only by repeated criminal/anti-social conduct (but presumably this could be evidence, just not conclusory). c. Kutz-cant really have mens rea without mental capacities anyhow. No conviction of kleptomanic if truly lacking substantial capacity 1. Blake (p.885) (MPC case-need Substantial Capacity)

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a. D convicted of bank despite his insanity plea backed by a ong history of mental instability. Under Davis standard (Mnaghten) he could not prevail since he knew right from wrong, but MPCs substantial capacity threshold is proper. 2. MPC & Commentaries (p.888) a. For MPC criticisms of MNaghten 3. Lyons (p.890) (Drugs alone cannot equal substantial incapacity) a. Court held that drug addiction by itself cannot be the sole excuse for lack of substantial capacity to control ones behavior. b. If it caused physical damage it can be introduced, but the volition prong (between an irresistible and non-irresistible impulse) is no longer valid and is now nixed (APA agrees) 4. Green (p.896) a. No conviction can be upheld in the face of extensive evidence of insanity that State does not challenge. 5. MPC Commentaries 4.01 (p.904) a. No empirical evidence of insanity excuse being abused. The opposite is true, underutilized. Many want to label the inane as criminally blameworthy even though they are not morally culpable.
MENS REA
Mens Rea means the mental state required for crime. Must be morally blameworthy. Crimes that require mens rea are crimes of specific or general intent. Crimes that do not require mens rea are crimes of strict liability.

2.02 Culpability requirement: four states (1); must be present for all elements of crime (4); higher level may satisfy lower (5). a) Purpose 2.02(2)(a) "Purpose" means "conscious objective or desire" for conduct and result elements, "awareness, belief, or hope" for circumstances. b) Knowledge 2.02(2)(b) "Knowledge" means "awareness" for conduct and circumstances, "awareness of practical certainty" for results. c) Recklessness 2.02(2)(c) The distinctive characteristic of recklessness is that the defendant is actually aware of a risk that the element exists or will result.

General Intent- has mens rea but not specific reckless/negligence (battery, 2nd degree murder) Specific Intent-crimes whose definition describes what the is thinking-intent/knowledge (i.e. burglary, larceny, receiving stolen property, common law rape) Intent: to do crime, even if different and unintentional result (desire or purpose). 1) conscious object or 2) knew offense virtually certain to occur. Malice-either intent or recklessness Knowledge/Knowingly apply to attendant circumstances. Willful blindness does not justify (Ostrich instruction may not willfully avoid

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knowledge). State v. Nations (underage stripper knowledge of both attendant circumstances not shown) Recklessness if harm done is foreseeable; or aware of risk. Consciously disregards a substantial and unjustifiable risk of social harm. Criminal Negligence should be aware that conduct creates substantial and unjustifiable risk of social harm (i.e. speeding) Transferred Intent: intent to harm one person and actually harm another-just as guilty as if harmed person intended to injure Strict Liability: No mens rea, public welfare offenses & statutory rape) Allowed when 1)public policy rationale-goal to preserve safety 2) legislative purpose-wanted strict liability low penalties 3)malum prohibitum (bad as a matter of law)-no intrinsic moral stigma attached 4)crime at common law? Can read mens rea into statute or find it unconstitutional

d) Negligence 2.02(2)(d) The distinctive characteristic of negligence is that the defendant should be aware of a risk that the element exists or will result. When culpability not provided in statute 2.02(3): assumed to be at least reckless, knowingly or purposely When culpability only given for one element of the statute 2.02(4)-use that element for all elements If law requires lower culpability level 2.02(5)- if prove a higher level, then automatically prove the lower level Knowledge of attendant circumstances cannot be willfully ignored 2.02(7)-willful blindness-Ostrich Principle-requires high probability Transferred Intent 2.03(2)(a)/2.03(3)(a)-guilty if any of the 4 types of culpability are established and instead of injuring one person, injure another NO STRICT LIABILITY

DEFENSES TO MENS REA Mistake of Law 2.04(1) Defense if the ignorance or mistake of fact or Generally does not relieve of liability (Marrero) law negates the mens rea required Mistake of Fact Specific Intent Crimes- any good faith mistake is a defense (Novarro) (subjective points gun at head and shoots dead. If mistakenly thought empty, no intent but recklessness?) General Intent Crimes- reasonable mistake in good faith is a defense. Morally blameless. Strict Liability-No Mistake of Fact Defense (Stiffler) 2.04(2)Not available when D would have been guilty of a different offense had the facts been as D supposed, however the defense will lower the grade to that of offense D thought was being committed. 2.04(3)Mistake of law defense available when the law is not known to the actor and has not been properly published (FAIR WARNING) OR D acts in reasonable reliance on an official statement of law, later found erroneous:

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HOMICIDE

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MURDER (CL, no murder degrees. Only under statute) Homicide the killing of a human being by another human being. Death = brain death. Criminal Homicide = w/out justification or excuse Murder = w/ malice aforethought. 1st degree murder Intent to kill: premeditation, deliberation, willful (cold and calculating as an indicator of culpability). Premed/delib can be satisfied in a split second. 2nd degree murder All other intentional murder (except heat of passion). Extreme RECKLESSNESS/ Abandoned and malignant heart/ depraved heart: conscious disregard of substantial and unjustifiable risk Intent to seriously injure/inflict grievous bodily injury Felony Murder (usually 2nd degree, unless specified felony; narrowing the felonies that qualify) Stamp a) Inherently dangerous rule: the felony in the abstract (split: others in light of circumstances) Burroughs b) Merger rule: felony is an integral part and included in fact in the murder Smith c) In furtherance rule: not a coincidence King d) Agency rule: killer has to be one of the felons Bonner Year and a day rule but changing VOLUNTARY MANSLAUGHTER w/out malice aforethought (MR issue) Heat of passion: partial justification (victim deserved)/excuse (social harm mitigated) defense 1) Requires adequate provocation (decided by jury. sexist?) Girouard. 2) Reasonable person standard: objective standard of ordinary person w/ subjective elements (age in Camplin, but not impotence Bedder) Mison article: homophobic? Racial bias? But reasonable shouldnt be ideal. Women/men split. 3) No cooling time 4) Causally connected IMPERFECT SELF DEFENSE mitigates to voluntary 1) unreasonably believe nec 2) fails to retreat RAPE

MURDER 210.2 1st degree felony Homicide - Taking of the life of another purposely, knowingly, recklessly or negligently. 210.1(1) Code does not include fetus or define death. 210.0(1) Purposely / Knowingly: = CL MR intent to kill.

Recklessness and an extreme indifference to human life 210.2(1)(b). ~ to depraved heart or extreme recklessness under CL

NO felony murder, but reckless indifference to human life may be presumed if engaged in or an accomplice to a homicide committed during the commission of a felony. 210.2(1)(b)

No time limit MANSLAUGHTER 210.3 2nd degree felony Extreme mental or emotional disturbance 210.3(1)(b) affirmative defense, partial responsibility diminished capability defense. Subjective interp. w/in bound of objectively reasonable explanation). must have 1) acted under EED 2) fore which there was a reasonable explanation or excuse. Words can be enough/ no cooling off. Casassa Ordinary Recklessness: does not manifest an extreme indifference to human life but actor is aware that she is taking a substantial and unjustifiable risk to human life (unlike CL, must be aware of risk)

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(CL) Carnal knowledge of a woman forcibly and against her will or (common in statute) sexual intercourse with a woman (typically not his wife) by force, against her will and without her consent. (intercourse requires penetration) 1) Force/threat of force Intimidation or personal fear not necessarily sufficient (Alston) 2) intercourse against the will of the victim resistance requirement (CA got rid of). Dont have to resist if a reasonable fear that, if you resist, more harm (Rusk) 3) the victim did not consent. (MTS) General intent: defense of reasonable belief Statutory Rape: sex w/ a female under the age of consent, general intent to the act, no mens rea for the attendant circumstances. ATTEMPT In general, an attempt occurs when a person intends to commit a crime and engages in conduct that is a substantial step towards the commission of that crime.

MPC 213.1(1)(a) sexual intercourse with a female not his wife compels her to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone. Intimate rape a lesser offense voluntary social companion that previously permitted social liberties. Felony in the 2nd degree. 1st degree felony if infliction of serious bodily harm or if stranger. Gross sexual imposition: 3rd degree felony. 213.1(2)(a) compels by threat (reasonable) knowledge of mental illness or knowledge of unawareness or mistake

5.01 Acts w/ culpability of crime and a) engages in conduct that would constitute the crime w/ attendant circumstances b) believes act or omission will cause the result; or c) substantial step towards the culmination of commission of crime Punishment: 5.05 the same for attempt & completed crimes (exception: 1st degree felonies reduced to 2nd degree) Rationale: focus on intent. Mens rea equivalent. Culpability. Incapacitation. Mens Rea: Dual intent 5.01(1) 1) culpability (same intent as completed crime) AND 2) purpose or knowledge/belief as to the conduct or result (act or omission) Actus Reus: substantial step - eight scenarios in 5.01(2) strongly corroborative of criminal purpose

Punishment: less for attempt (i.e. ) Rationale: retribution must match crime. General deterrence.

Mens rea: specific intent to engage in actus reus. (no attempt of a nonintent crime, eg. felony murder, involuntary manslaughter, Cox v. State, but can attempt statutory rape) Actus Reus: last act rule (Peaslee) dangerous proximity (Rizzo) equivocality test (Miller) overt act rule (Reeves)

SPECIAL DEFENSES

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IMPOSSIBILITY CL views legal impossibility as a defense, but not factual. Factual: No defense. Pure legal impossibility: lawful conduct that the actor believes constitutes a crime (Thomas) or (i.e. filing taxes on time thinking youre late) Hybrid legal impossibility: actors goal illegal, but offense impossible due to mistake of legal status of factual circumstances (i.e. receiving stolen property that in fact is not stolen). ABANDONMENT CL not a defense (McCloskey) although a sympathetic judge could call actions preparation CONSPIRACY An agreement between two or more people to commit an unlawful act or series of unlawful acts.

5.01(1)(a) Guilty of attempt if conduct would constitute the crime if the attendant circumstances were as be believes them to be. Under 5.01, Factual impossibility no defense. Pure legal impossibility a defense. 5.01 No hybrid legal impossibility defense. (rationale: person culpable. MPC focus on mens rea)

5.01(4) Renunciation of criminal purpose a) abandons crime or prevents it from being committed b) conduct manifests a complete and voluntary renunciation

5.03 W/ others purpose of promoting or facilitating crimes commission a) agrees to engage in conduct that constitutes crime b) agrees to aid in planning or commission Grading: Treats the same (except 1st degree felony) May not be convicted of conspiracy and crime, unless conspiracy involves ongoing course of conduct. 1.07(1)(b) Mens rea: Acts w/ purpose of promoting or facilitating the commission of the conduct that constitutes a crime. 5.03(1). Actus reus: Agreement Requires overt act. 5.03(5) Renunciation an affirmative defense. (6)

Grading: Trad. A misdemeanor. Now usually both same, but usually lesser offense than target crime. No merger doctrine. May be convicted of both conspiracy to commit and the crime.

Mens rea: Specific intent offense. Intent to combine with others/agree Intent to accomplish crime Actus reus: Agreement Overt act requirement in some jurisdictions (not in Carter) Plurality requirement: Must involve two or more persons (i.e. undercover cop does not count because no intent to commit crime only one party w/ mens rea). Heavily criticized rule (arg: one insane, other still culpable).

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ACCOMPLICE LIABILITY Traditionally four categories: principal in 1st degree, in 2nd degree, accessory before the fact, accessory after the fact. Accessory tried second lesser sentence. State v. Ward (844). Mens rea: 1) intent to aid/assist 2) intent that the crime be completed (Hoselton) or culpability for a recklessness or negligence crime (Foster) 3) natural and probable consequences rule for extra crimes. reasonably foreseeable (Linscott) ~Pinkerton doctrine Actus reus: (actual assistance) 1) solicitation 2) active assistance 3) encouragement 4) omission if duty to act (ineffective assistance doesnt count) Innocent Instrumentality doctrine (Bailey) Derivative: need completed crime (Genoa 38 hear rape) and liable principle (Hayes), accomplice/solicitor cannot be charged w/ more than what principal did (Richards), justification of principle negated accomplice liability, excuse does not (Lopez) Immunity for legal victims (In re Megan R) Withdrawal is a defense if three conditions are met: (a) repudiation is communicated; (b) prior aid is rendered ineffective; and (c) the accessory acts in a timely manner. (Brown) w/attempt: (supplies for illegal abortions but no act) no criminal attempt here. Same: 2.06(6)(a) 2.06(6)(b)drug purchaser cant be accomplice to sale) Withdrawal defense allowed 2.06(6)(c) 1) terminates complicity and wholly deprives it of effectiveness or gives timely warning to law enforcement to prevent crime w/attempt: same, but may be charged here. MPC 2.06 Eliminates categories accomplice may be charged with higher; no jurisdiction issues Mens rea: Purpose to promote or facilitate offense (conduct crimes: promote facilitate 2.06(3); result crime: requisite culpability for the offense 2.06(4) None here.

Actus reus 2.06(3) 1) solicitation 2) aids/attempts to aid 3) fails to fulfill legal duty (ineffective assistance may count) Same: Causes an innocent or irresponsible person to engage in criminal conduct 2.06(2)(a)

EXCUSE: DURESS Duress: demand/coercion by human actor v. necessity: force of nature. Unlawful human threat. No other choice, no free will. 1) immediate threat of danger 2.09 permits duress affirmative defense whenever unlawful force against D or a 3rd party which would cause a reasonable person to be unable to resist (no deadly or imminence requirements)

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2) reasonable fear that the threat will be carried out 3) no reasonable opportunity to escape (Contento) Situational Duress-actor breaks law in emergency situation, not by coercion, but not for greater good necessarily (not duress or necessity defense really) some defense should be available in this situation May not be a defense to murder may reduce though

when reasonable person would be in duress-but unavailable if recklessly or negligently placed in that situation

MPC: May be a defense to murder.

JUSTIFICATION: SELF DEFENSE Objective approach (reasonableness) but w/ subjective element (s experiences, memories, knowledge) (Goetz) poss gender (Wanrow) Necessary: Must reasonably believe defense nec. If unreasonable but thinks necessary, may be a partial or imperfect defense reduce to manslaughter. Deadly force: must respond to threat of death or great bodily harm (GBH) (force must be proportional and imminent) Aggressor: must be w/out fault (see Peterson) Split: Majority - May lose aggressor status if initiated nondeadly force and other responded w/ deadly force. Minority: Above, but must still try and retreat. Duty to retreat (split: majority holds no duty to retreat, minority upholds duty if know of retreat & complete safety. Castle exception).
A defendant is privileged to use force against another person in self defense when reasonably believed to be necessary to defend against immediate unlawful force employed against the defendant by the other person.

3.04: Choice of Evils. Self protection. Subjective approach but see 3.09(2), except when actor is reckless or negligent in such belief may then have req mens rea for manslaughter Necessary

Deadly force: must respond to threat of death, serious bodily harm, kidnapping, rape. 3.04(2)(b) Aggressor 3.04(2)(b)(i): Dont lose privilege unless intent to kill/cause GBH. If other party elevates to deadly conflict, entitled to self defense even though started Duty to retreat: Must retreat if can avoid the need to use deadly force w/ complete safety. Larger castle exception than w/ CL. 3.04(2)(b)(ii)
The defendant must believe that force is immediately necessary for self protection against unlawful force on the present occasion. Deadly force is permitted only if believed to be necessary to protect oneself from "death, serious bodily harm, kidnapping or sexual intercourse compelled by force or threat." And deadly force is prohibited if the defendant initiated the encounter with intent to kill or seriously injure or if the defendant does not retreat when required.

IMPERFECT: 1) unreasonable belief 2) failure to retreat reduce to vol. manslaughter

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