Introductory Material

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Enforcing the Presumption of Innocence Owens v. State (pg 14) o Facts: Defendant was found passed out in his car drunk in a driveway. There were open beers in the car. He was arrested for drunk driving. o Rule: A conviction upon circumstantial evidence alone is not to be sustained unless the circumstances are inconsistent with any reasonable hypothesis of innocence. Translation: Proven guilty beyond a reasonable doubt Though the evidence is all circumstantial, one inference is less reasonable and therefore makes the other inference reasonable (it is more likely he drove drunk then parked than was drunk and never drove).

Jury Nullification Jury nullification the jury ignores the facts and the judges instructions on the law and acquits the defendant o Checks the powers of the legislature (those who pass the laws) from making unfair laws o Jury does not have to be notified of its nullification power State v. Ragland (pg 19) o Defendant appeals jury instructions that if he had weapon during robbery they must convict of possession. i.e. stopped the jury from nullification

Theories of Punishment Utilitarian believes that justification lies in the useful purposes that punishment serves o General deterrence punishment sends message to the rest of society

o Specific deterrence punish the defendant so he doesnt commit the crime again o Rehabilitation - prevent future crime by reforming offenders The Queen v. Dudley and Stephens (pg 48) o Facts: 3 men trapped at sea. 2 of the men killed the third and ate him for 4 days until they were rescued. They were convicted of murder. Punishing the survivors = retributive view Retributive claims that punishment is justified because people deserve it (ey for an eye)

Proportionality of Punishment: Constitutional Principles Eighth Amendment states that no excessive bail, excessive fines, or cruel and unusual punishment shall be imposed Coker v. Georgia (pg 72) o Facts: Coker is serving a life sentence. He escapes and kidnaps and rapes an adult woman. He is sentenced to death for the rape. The Supreme Court overturned the death penalty stating that death was an excessive and disproportional penalty for the crime of rape Retributive punishment of death is disproportionate to crime that doesnt involve homicide The death penalty for rape has been reserved overwhelmingly for black defendants, especially those convicted of raping white woman. Kennedy v. Louisiana (pg 78) o death is also grossly disproportionate punishment for the crime of child rape Ewing v. California (pg 81) o Facts: Defendant stole a golf club and was sentenced to 25 years to life in prison under Californias 3 strikes policy.

o Rule: Supreme Court ruled that there is a narrow proportionality principle outside of death penalty cases The 8th amendment only forbids grossly disproportionate sentences not narrowly disproportionate. The 3 strikes law is not grossly disproportionate and thus does not violate the 8th amendment. Legality (pg 92) No crime without law, no punishment without law o A person may not be convicted and punished unless his/her conduct was defined as criminal Three interrelated corollaries to the principle of legality: i. Criminal statutes should be understandable to reasonable lawabiding persons ii. Criminal statutes should be crafted so that they do not delegate basic policemen, judges, and juries for resolution on an ad hoc subjective basis iii. Rule of lenity (only under common law) judicial interpretation of ambiguous statutes should be based in favor of the accused Jacksonville Statute: cant be a bum, rogue, or vagabond o Held to unconstitutional because it was void for vagueness o Selective Enforcement Vague and overbroad statutes not only are of constitutional concern because they fail to give the law abiding individual adequate notice of prohibited conduct, but also because such laws can be applied in a selective or discriminatory manner by the police and other legal institutions City of Chicago v. Morales (pg 113)

o Facts: The Chicago City Council enacted the Gang Congregation Ordinance, which prohibits criminal street gang members from loitering with one another or with other persons in any public place. The ordinance is vague in the sense that no standard of conduct is specified at all The police have no guidelines on how to enforce the law Which may authorize and even encourage arbitrary and discriminatory enforcement Statutory Interpretation o Muscarello v. United States (pg 120) Facts: A provision in the firearms chapter of the federal criminal code imposes a 5 year mandatory prison term upon a person who uses or carries a firearm during and in relation to a drug trafficking crime. The gun was in the car so what does carry mean? Rule of lenity where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant. Only under common law

Actus Reus
MPC 2.01 pg 967

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Actus reus (pg 127) the physical or external part of a crime event the society does not want to occur Two elements of actus reus: Voluntary physical movement or the omission to perform an act **Criminal liability must be based on conduct which includes a voluntary act or omission to act which was physically possible to have performed o Utilitarian view cannot deter involuntary acts o Retributive view a person who did not intentionally act in a way that causes harm does not deserve the punishment o Result crime some crimes prohibit specific result ex.murder (punish result of murder) o Conduct crime prohibition of specific conduct whether or not harm results ex. DUI (punish conduct of drinking and driving) possibly no harmful result MPC 2.201 (1) o A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or omission to perform an act of which he is physically capable MPC 2.01 (2)(d) o Voluntary act a bodily movement that is a product of the effort or determination of the actor, either conscious or habitual which he is physically capable Social harm

A. Voluntary Act Both a common law principle and a MPC principle

Martin v. State (pg 128) o Facts: A man is taken from his home by the cops and taken to a public highway. Martin was charged with appearing in a public place in an intoxicated condition. He did not voluntary act no actus reus. Conviction reversed Rule: Criminal liability must be based on conduct which includes a voluntary act or omission to act which was physically possible to have performed State v. Utter (pg. 130) o The Defendant Utter stabbed and killed his son. He claims to have no recollection of the murder, as it was committed after the Defendant had consumed alcohol and allegedly killed by a conditioned response. Rule: When the state of unconsciousness is voluntarily induced through the use and consumption of alcohol or drugs, then that state of unconsciousness does not attain the stature of a complete defense. Intention of getting drunk negates involuntary actions

B. Ommisions (Negative Acts) (what he/she didnt do; an absence of conduct when D has a legal duty to act) Generally, we do not punish individuals for failure to act, must have neglected LEGAL duty o 4 situations in which the failure to act may constitute breach of a legal duty: (Jones v. United States) pg. 139 note 2 1. the statute imposes the duty 2. where one stands in a certain status relationship to another 3. where one has assumed a contractual duty to care for another

4. where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid 5. when a person creates a risk of harm to another ex. hit and run Absent special circumstances (conspiracy), a person has no legal duty to inform the police of another persons plans to commit a criminal offense Hypo: o A and B are swimming, C and D are on shore. A begins drowning, B waves off C and D B has a duty o A and B are swimming, C and D are on shore. C and D decline to help C and D have no duty People v. Beardsley o While his wife was out of town, the Defendant spent the weekend with another woman. The woman consumed morphine in an apparent suicide attempt. After she died, the Defendant was convicted for manslaughter for failing to render aid. Rule: while it is the moral duty of every person to extend to others assistance when in danger, a person who fails to act to save the life of someone to whom he does not stand in the legal relation of protector is not chargeable with manslaughter

Barber v. Superior Court (pg 142) There is no criminal liability for failure to act unless there is a legal duty to act A physician has no duty to continue treatment, once it has proved to be ineffective

o The petitioners omission to continue treatment under the circumstances, though intentional and with knowledge that the patient would die, was not an unlawful failure to perform a legal duty

Social Harm - the destruction, injury to, or endangerment of some socially valuable interest Elements of social harm o Result crime some crimes prohibit specific result ex. murder (punish result of murder) o Conduct crime prohibition of specific conduct whether or not harm results ex. DUI (punish conduct of drinking and driving) possibly no harmful result o Attendant circumstances a certain result or conduct is not an offense unless a certain circumstance is present at the time of the result or conduct Ex. burglary must occur to a dwelling house

Mens Rea

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The mental state that is required to commit a crime

Mens rea a guilty mind; a guilty or wrongful purpose; a criminal

intent Two theoretical definitions of mens rea: Broad (culpability) definition a person has acted with mens rea if they committed the actus reus with a vicious will, evil mind, moral blameworthiness, or culpable state of mind Narrow (elemental) definition a person commits the actus reus with the particular mental state set out expressly in the definition of the offense

MALICE Regina v. Cunningham (pg 151) Facts: When Wade was partially asphyxiated by seeping gas after Cunningham (D) stole the gas meter from the basement of her building, Cunningham (D) was charged and convicted for the injury to Wade. Rule: Malice requires either an actual intention to do the particular kind of harm that was in fact done or recklessness as to whether such harm should occur or not. Notes: o Definition of malice i. an actual intention to do the particular kind of harm that in fact was done, or ii. recklessness as to whether such harm should occur or not (i.e. the accused has foreseen that the particular kind of harm might be done, and yet has gone on to take the risk of it.) it is neither limited to, nor does it indeed require, any ill-will towards the person injured

INTENT People v. Conley (pg 153) Facts: In a fight outside a large party, Conley (D) hit Sean OConell in the face with a wine bottle, breaking his upper and lower jaws, other facial bones, and some of his teeth.

Rule: A person who, in committing a battery, intentionally or knowingly causes great bodily harm or permanent disability or disfigurement commits aggravated battery. The intent to cause great bodily harm may be inferred by the circumstances surrounding the offense such as the offenders words, the weapon used, and the force of the blow. o Intentionally when it is the persons conscious objective or purpose to accomplish a result or engage in conduct o Knowingly when he is consciously aware that such result is practically certain to be caused by his conduct o Transferred Intent Doctrine when a defendant intends to cause harm to one person but accidently causes it to another, courts typically assert what has come to be known as the transferred intent doctrine. Specific Intent vs. General Intent (pg 159) o Specific Intent a special mental element which is required above and beyond any mental state required with respect to the actus reus of the crime 3 types: a. an intention by the actor to commit some future act, separate from the actus reus of the offense (possession of marijuana with intent to sell) b. proof of a special motive or purpose for committing the actus reus (offensive contact upon another with intent to cause humiliation) c. proof of the actors awareness of attendant circumstance ( intentional sale of obscene literature to a person known to be under the age of 18) o General intent any mental state, whether expressed or implied, in the definition of the offense that relates solely to the acts that constitute the social harm of the criminal offense

Example: if battery is defined by state law as an intentional application of force upon another, this offense would be considered general intent because the mental state (intentional) pertains exclusively to the state of mind the actor must possess regarding the actus reus of the offense

KNOWINGLY State v. Nations- (p.165) Facts: Ms. Nations owned a disco where underage girls were dancing. She had asked the girls for ID but they had not shown her yet. She was charged with endangering the welfare of a child. Holding: The defendants consciousness of a substantial and unjustifiable risk was a gross deviation from the norm but is not knowledge [in Missouri.] It is recklessness. Rules: Below Common Law : Allows Willful Blindness in some states: To knowingly engage in criminal conduct, a defendant must have actual knowledge of the existence of the attendant circumstances which constitute the crime. Because the Missouri Legislature defines knowledge as actual knowledge only, Nations willful blindness is not knowledge. It would be different under the MPC. MPC: Does Not Allow Willful Blindness 2.02(7) Requirement of Knowledge Satisfied by Knowledge of High Probability. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist

According to the MPC 2.02 -3 if the mens rea element isnt specified it must be purposely, knowingly, or recklessly

STATUTORY INTERPRETATION A common issue in criminal litigation is whether the mens rea term applies to all or only some of the actus reus elements Courts look at: o 1. Legislative intent (most important) o 2. Position of the mens rea term in the definition of the offense o 3. Punctuation o 4. Attendant Circumstances (i.e. some courts assume the term does not apply to attendant circumstances)

MISTAKE OF FACT Common Law o Specific Intent Offenses: a defendant is not guilty of a specific intent crime if her mistake of fact negates the specific intent element of the offense. Even an unreasonable mistake of fact a mistake that a reasonable person would not makemay exculpate the actor, assuming the mistake negatives the mens rea required for the offense o General Intent Offenses: a defendant is not guilty of a general intent offense if her mistake of fact was reasonable. An unreasonable mistake of fact does not negate culpability. Exceptions: Moral Wrong Doctrine there should be no exculpation for a mistake where, if the facts had been as the actor believed them to be, her conduct would be immoral, albeit legal. Legal Wrong Doctrine A person is guilty of criminal offense X, despite a reasonable mistake of fact, if she would be guilty of a different, albeit lesser, crime Y, if the factual situation were as she supposed.

o A mistake of fact, whether reasonable or unreasonable, is never a defense to a strict liability offense. (SL doesnt require proof of mens rea, therefore there is no mens rea to negate) People v. Navarro (pg. 194) o Facts: When Navarro (D) was charged with grand theft for taking four wooden beams from a construction site, he unsuccessfully requested the court to instruct the jury that if he in good faith believed he had the right to take the beams, he should be acquitted, even if his belief is unreasonable. o Rule: If one takes personal property with the good-faith belief that the property has been abandoned or discarded by the true owner, he is not guilty of theft, even where such goodfaith belief is unreasonable. i.e. your belief does not have to be reasonable as long as it is in good faith o specific intent statute Navarro didnt have the intent to steal so mistake of fact was a successful defense Mistake of fact defense can be allowed with specific intent to disprove the mens rea elemental analysis.

MPC (2.04, p. 983)- does the mistake negate the mens rea element? If yes, there is no liability; MPC does not make the distinction between specific and general intent so there is only one analysis available. Exception: the defense is not available if the actor would be guilty of another offense, had the circumstances been as he supposed. 2.04 (1) Mistake of fact or law 2.04 (b) catch all if the common law has a law but MPC doesnt 2.04(2): MPC equivalent to the Moral/Legal Wrong Doctrines: if D is mistaken as to some fact in the circumstance, but would still be guilty of some crime if the situation were as he believed it to be, the mistake can be used to mitigate the charge to a lesser offense

STRICT LIABILITY Strict liability offenses do not require a mens rea element. There is a presumption against strict liability in criminal law.

Without evidence, the courts will not assume that the legislature intended to abandon the mens rea requirement, even if the statute is silent regarding this element. A mistake of fact is never a defense to a strict liability offense. Criticism is that it does not deter those who are unaware they are breaking the law. Common Law Public Welfare Offenses-malum prohibitum-when conduct is wrong because it is prohibited. Usually minor offenses and light punishment. o 1) They regulate dangerous or deleterious devices or obnoxious waster materials. o 2) They heighten the duties of those in control of particular industries, trades, properties or activities that affect the public health, safety, or welfare o 3) They depend on no mental element but consist only of forbidden acts or omissions. Non Public Welfare Offenses-malum in se-strict liability on inherently wrongful conduct. (Statutory Rape) MPC 2.05 --Allows strict liability for violations but not crimes. Violations are offenses with no penalty other than a fine, forfeiture, or other civil penalty. MISTAKE OF LAW

Causation

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Causation the antecedent but for which the result in question would not have occurred 1. ACTUAL CAUSE (CAUSE IN FACT) but for or sine qua non test

Rule: A person is not guilty of an offense unless he is an actual cause of the ensuing harm. The same under MPC and common law The actual cause is the link between the actus reus (voluntary act) and the resulting social harm. Example: But for the defendant pulling the trigger of the gun , his intended victim would not have died. The actus reus of pulling the trigger was the actual cause of the resulting harm. Multiple Actual Causes Acceleration one persons subsequent act makes the original injury worse o Ex. If someone was supposed to die in two days, but shot them killing them instantly, defendant accelerated the process and would be responsible for the death. o Oxendine v. State (pg. 215 ) Facts: When Oxendines (D) 6 year old son died after being beaten first by Oxendines girlfriend, and then by Oxendine and the girlfriend were convicted of manslaughter in the same trial. Rule: A defendant who causes the death of another is not relieved of responsibility for causing the death if another later injury accelerates, that is, hastens the death of the other person. Contribution without acceleration is not sufficient

Concurrent Causes one persons independent act is performed concurrently (at the same exact time) with another independent persons act resulting in death. The but for test cannot be used because the causation is unclear. o Substantial factor test (only in common law) two defendants acting independently and not in concert with one another, commit two separate acts, each of which alone is sufficient to bring about the prohibited resultas when two defendants concurrently inflict mortal wounds upon a human being, each of which is sufficient to cause death. If the conduct was a substantial factor in bringing about the said result the defendant is guilty. i.e. Was the defendants conduct a substantial factor in the resulting harm? Each substantial factor in the crime is guilty. MPC 2.03(1) (pg. 969) MPC does not apply the substantial factor testit uses the but for test in all cases. The commentary code explains that in deciding whether the a defendant was a but for cause of a result one would state the result with specificity. o Ex. Victim would not have died from 2 bullet wounds but for each defendants conduct.

2. PROXIMATE CAUSE (LEGAL CAUSE)

Serves the purpose of determining who or what events among those that satisfy the but-for standard should be held accountable for the resulting harm To be found guilty, a person must not only be the actual cause of the resulting harm, but must also be found to be the proximate cause of the resulting harm. A person or event cannot be a proximate cause of harm unless he or it is an actual cause, but a person or an event can be an actual cause without being a proximate cause. Issues of proximate causation (superseding or intervening) When some but-for causal agent comes into play after the defendants voluntary act or omission and before the social harm occurs i. an act of God ii. an act of an independent third party, which accelerates or aggravates the harm caused by the defendant, or which it causes it to occur in an unexpected manner iii. an act or omission of the victim that assists in bringing about the outcome Common Law asks what is just? There is no standard answer MPC 2.03(2)(B) and (3)(b) The MPC asks was the actual result too remote or accidental in its occurrence to have a just bearing on the actors liability or on the gravity of the offense. The Model Penal Code 2.03 (2) if the actual result is not in the purpose or contemplation of the actor, the culpability requirement is not satisfied unless:

o only different person or property was affected or the injury or harm contemplated would have been more serious than what actually occurred o the same kind of injury was contemplated but brought about in a different way Dependent intervening cause would not have occurred without the defendants conduct o generally defendant is liable unless the dependant cause was unforeseen and freakish Independent intervening cause would have come into play regardless of defendants conduct o generally defendant is NOT liable unless the cause was foreseeable to a reasonable person in the defendants situation Hypo: A leaves B in the roadway where he is it by a car. This was a dependent intervening cause and will not break the chain. (Because A took B outside) Hypo: A leaves B outside where he is hit by a plane. This was dependent and will break the chain. (Unforeseen and freakish)

Coincidental intervening cause When the defendants act merely put the victim at a certain place at a certain time, and because the victim was so located it was possible for him to be acted upon by the intervening cause. A coincidence will break the chain of legal cause unless it was foreseeable Responsive intervening cause Involves a reaction to the conditions created by the defendant Will not break the causal chain unless it is abnormal and thus unforeseeable Examples: o actions by the victim to avoid harm o actions of a bystander to rescue him

o and actions by medical personnel in treating the victim 6 factors to be considered in determining if an intervening cause is a superseding cause: (1) De minimus causes contribution to social harm a very minor but-for cause of harm isnt legally responsible for the result when there is a much more substantial cause for the result (2) Intended consequences doctrine if an intentional wrongdoer gets what he wantedhe gets the result he wanted in the manner he wanted ithe should not escape criminal responsibility even if an unforeseeable event intervened (3) Omissions nothing does not supersede something (4) Foreseeability factor responsive and intervening (5) Apparent safety doctrine if the victim is in a place of safety outside of the defendants controlthe causal link is broken (6) Free, deliberate and informed human intervention Valazquez v. State Facts: When Valazquez (D) was convicted of vehicular homicide for the death of a co-participant in drag race, he argued that his conduct was not the cause-in-fact of the co-participants death. Rule: there can be no criminal liability for the result-type offenses unless it can be shown that the defendants conduct was a cause-infact of the prohibited result.

People v. Rideout (pg. 220) Facts: Victim involved in car crash makes it safely to the side of the road before deciding to re-enter and is struck and killed Rule: a defendant may not be convicted of a crime where the defendants conduct, although the cause-in-fact of a victims injury, is not the proximate cause of the injury as the result of a superseding intervening cause, which may be the victims own decision to place himself in a position of danger. CONCURRENCE OF THE ELEMENTS

All requirements of a crime must be met for conviction voluntary act or omission (actus reus) public or social harm mens rea actual cause proximate cause

Homicide

OVERVIEW

The common law had no degrees of murder. To decide whether a particular murder is first degree, second degree, or any other degree can only be answered by reading and interpreting the particular statute in question. Common law definition of murder The unlawful killing of another human being with malice aforethought o A person acts with malice if he unjustifiably, inexcusably, and in absence of any mitigating circumstances, kills a person with any one of four mental states: (1) intent to kill awareness that death of another would result from ones actions, even if the actor had no particular desire to achieve such a consequence. First Degree (2) intent to cause grievous bodily harm knowledge that conduct would cause serious bodily injury was generally assimilated to intent and was deemed sufficient for murder if death of another actually resulted. Second Degree (if it ends in death) (3) depraved heart murder (extreme recklessness) a person might be liable for murder absent any actual intent to kill or injure if he caused the death of another in a manner exhibiting a wanton and willful disregard of an unreasonable human risk. Second Degree (4) intent to commit a felony strict liability for homicide committed during the commission of a felony. (This is separate and its own thing but it will be first degree murder). o Aforethought The actor thought about the killing beforehand

A year and day clause 366 days after the homicide, a prosecution is barred Deadly weapon rule - A jury may infer an intent to kill if an actor uses a deadly weapon directed at a vital part of the human anatomy

INTENTIONAL KILLININGS Willful, Deliberate, Premeditated

Statutory Reform: Wilful, Deliberate, Premeditated First Degree Murder

In many states that by statute divide murder into a willful, deliberate, premeditated killing is a first degree murder. o Wilful: intentional o Premeditated: to think about before hand (some courts state that no time is too short for a person to premeditate; an intent to kill need only last for an instant. Other courts require proof that a person thought about the killing for some appreciable amount of time. Enough time for the actor to have a second look at what he is considering anytime can be sufficient to uphold first degree murder) o Deliberate: to measure and evaluate the major facets of a choice or problem (a person would have to premeditate for longer than an instant to satisfy this standard of deliberation) o **If one is missing, most statutes say that it becomes second degree murder** o **A number of courts have pointed out that premeditation and deliberation characterize a thought process undisturbed by hot blood**

Circumstances to be considered in determining whether a killing was with premeditation and deliberation are: 1. want of provocation on the part of the deceased 2. the conduct and statements of the defendant before and after the killings 3. threats and declarations of the defendant before and during the course of the occurrence giving rise to the death of the deceased 4. ill will or previous difficulty between the parties 5. the dealing of lethal blows after the deceased has been rendered helpless 6. evidence that the killing was done in a brutal manner i. conflicting views a. one lethal wound is more culpable of a higher degree of murder (probably calmer not hot blooded) b. the more brutal the murder the higher the degree of murder (probably more hot blooded)

Cases: State v. Guthrie Facts: Guthrie (D) stabbed a coworker who poked fun at him. Rule: There must be some evidence that the defendant considered and weighed his decision to kill in order for the state to establish premeditation and deliberation under the West Virginia first-degree murder statute. o i.e. Premeditation requires you need a period of time for consideration. A defendant can be found guilty of a lesser offense included in the original charge. Midgett v. State Facts: After the death of Midgetts (D) son, Midgett (D) was tried and convicted of first degree murder when an autopsy attributed death to intra-abdominal bleeding due to blunt force trauma consistent with having been delivered by a human fist. Rule: Where a person is accused of first degree murder, it must be shown by substantial evidence that the killing was premeditated and deliberate. State v. Forrest Facts: Defendants father was critically ill and the doctors had declared his ailments to be untreatable and terminal. Defendant went to the hospital and after observing the state his father was in, shot the father in the head with a revolver to end his suffering. Rule: Although unique and possibly sympathetic circumstances, the rules standards dont change. There was substantial evidence to support premeditation and deliberation.

MPC 210.2 Murder (1) Except as provided in Section 210.3(1)(b), criminal homicide constitutes murder when: (a) it is committed purposely or knowingly; or

(b) it is committed recklessly under circumstances manifesting extreme indifference to the value of human life.(this makes it different than negligent homicide) [Such recklessness and indifference are presumed if the actor is engaged or is an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnaping or felonious escape.] (Felony murder not called felony murder in MPC (2) Murder is a felony of the first degree [but a person convicted of murder may be sentenced to death, as provided in Section 210.6]. MPC does not divide murder into degrees (i.e. first, second) MPC divides criminal homicide into 3 categories o Murder (210.2) o Manslaughter (210.3) o Negligent Homicide (210.4) Elements of murder ( 210.2) o Purposely o Knowingly o Recklessly under the circumstances manifesting an extreme indifference to the value of human life Differences between Common Law and MPC: Unlike common law, the MPC divides criminal homicide into three, rather than two offenses: murder, manslaughter, and negligent homicide. Unlike many modern statutes, the MPC does not divide murder into degrees Types of Murder: o MPC abandons the common law term malice aforethought Intent to kill This form is recognized under the MPC: a criminal homicide is murder under the MPC if the killing is committed purposely or knowingly Equivalent to the common law intent to kill form of mens rea

Intent to Commit Grievous Bodily Injury Any case that qualifies as this form of malice under common law, will fit under the MPC extreme recklessness umbrella Depraved Heart The MPC extreme recklessness provision is similar to the depraved heart form of common law murder, except that it is explicit in requiring proof of advertent risk-taking, and that risk taking be substantial and unjustifiable. Felony Murder The MPC abandons the felony murder rule. The MPC provides that reckless indifference to human life may be presumed if the person causes death during commission of one of these felonies: robbery, arson, burglary, kidnapping, felonious escape, or deviate sexual intercourse by force or threat of force. The common law felony murder rule is not in the MPC but if a murder is committed during commission of a felony, there is a rebuttable presumption that the killing was committed recklessly

MANSLAUGHTER
Common Law

Manslaughter definition an unlawful killing of a human being by another human being without malice aforethought Voluntary Manslaughter (Heat of Passion) Definition: an intentional, unjustifiable killing, which ordinarily is murder, constitutes manslaughter (or voluntary manslaughter) if it is committed in sudden heat of passion, as a result of adequate provocation.

Most commentators today now characterize the defense as a partial excuse, rather than a justification, as a concession to normal human frailty: the social harm is unmitigated, but the culpability of the actor is reduced because of the provocation. Elements of the Crime o (1) Adequate Provocation (objective standard): A person may not claim the defense simply because he was provoked The provocation must be such to inflame the passion of a reasonable man and tend to cause him to act for the moment from passion rather than reason. Adequate provocation for manslaughter: Extreme assault or battery upon the defendant Mutual combat Defendants illegal arrest Injury or serious abuse of a close relative of the defendants The sudden discovery of a spouses adultery **words alone cannot be adequate provocation** Adequate provocation is increasing being left to the jury to decide. A reasonable opportunity for the passion to cool is now ordinarily a question of fact for the jury o (2) State of Passion - he crime must be committed while in the heat of passion o (3) Suddenness - the defendant must NOT have had adequate time to cool off o (4) Causal Connection - a causal link between the provocation, the passion, and the killing

Cases: Giroud v. State (pg. 264) Facts: When Giroud (D) was convicted of the murder of his wife, he appealed on the basis that because she provoked him, the charge of murder should have been mitigated to manslaughter.

Rule: Words cannot constitute adequate provocation to mitigate a charge of murder to manslaughter unless the words are accompanied by conduct indicating a present intention and ability to cause the defendant bodily harm.

Reasonable Man Jersey v. Holley-(measuring the reasonable man) Objective-look at reasonable man but take into account age and sex Subjective-look at the reasonable man in a particular situation Glue Sniffer: Do we look at the reasonable man (objective) or the reasonable glue sniffing man (subjective).

Involuntary Manslaughter (Criminal Negligence)

Involuntary manslaughter I: the killing of another person in a criminally negligent manner. Not as severe as a depraved heart killing; unduly dangerous regarding damage to life and limb MPCs negligent homicide (210.4 Not 210 manslaughter) Involuntary manslaughter II: a person who kills another during an unlawful act that is not sufficient to trigger the felony murder rule MPC 210.3 Manslaughter (1) Criminal homicide constitutes manslaughter when: (a) it is committed recklessly; or Doesnt have the other circumstances like murder (b) a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. [The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor's situation under the circumstances as he believes them to be.] subjective standard (2) Manslaughter is a felony of the second degree.

The MPC has 2 circumstances where homicide is manslaughter: (1) Recklessness: a homicide committed recklessly constitutes manslaughter. It is different than reckless murder because the conduct, although reckless, does not manifest an extreme indifference to human life (2) Extreme Mental or Emotional Disturbance: there must be a reasonable explanation or cause of disturbance o words alone could qualify o no cooling off period is required o mix of subjective and objective standards: seen from the perspective of a person in the actors situation under the circumstance as he believes them to be. Common law uses a reasonable man standard o In the end, the question is whether the actors loss of selfcontrol can be understood in terms that arouse sympathy in ordinary citizen (ALI MPC and Commentaries, comment to 210.3). There is no unlawful act (also called the misdemeanormanslaughter) manslaughter provision under the MPC. (No involuntary II under MPC). Negligent Homicide: the MPC creates a negligent homicide offense for criminally negligent killingsame thing as involuntary manslaughter I at common law Recklessness MPC comparison to Common Law: MPC: the actor must be aware that she is taking a substantial and unjustifiable risk to human life. Common Law: permits conviction for involuntary manslaughter based on inadvertent risk taking i.e. the defendant may be convicted although she was unaware of the risk she was taking.

Cases: People v. Casassa

Facts: Cassasa (D), charged with murder, contended that whether he was under extreme disturbance should be analyzed subjectively. Rule: Whether the defendant was so emotionally disturbed as to lessen murder to manslaughter involves an objective and subjective analysis.

Chart of Comparisons of CL and MPC: CL Murder I. Invol. II. MPC Murder Neg. X

Vol. Man Manslaughter

Invol. Crim

UNINTENTIONAL KILLINGS: UNJUSTIFIED RISK TAKING

An unintentional can be a murder or a manslaughter. If it is done recklessly or negligently it is unintentional

Common Law

Grievous Bodily Injury A person acts with malice aforethought if he intends to inflict grievous bodily injury on another human being. Therefore, if a death results from his conduct, he is guilty of murder. Definition of grievous bodily injury: an injury that imperils life, is likely to be attended with dangerous or fatal consequences, or is an injury that gives rise to the apprehension of danger to health, life, or limb. Usually second degree murder Depraved Heart (Extreme Recklessness)

Definition: Depraved Heart or Abandoned and Malignant an actor manifests an extreme indifference to the value of human life if he consciously takes a substantial and unjustifiable foreseeable risk of causing human death. Usually second degree murder a. Extreme recklessness i. Depraved heart and abandoned and malignant heart were used to describe a category of malice. It is the state of mind of a defendant who demonstrates extreme indifference to the value of human life. In some jurisdictions referred to as gross recklessness. In others, the term implied malice. Must show two things 1. The defendant realized that the conduct posed a risk to human

life

2. The defendants recklessness was particularly extreme or gross. ii. Hypo: x driving down a sidewalk with no intent to kill anyon or injure anyone but he is showing extreme disregard for human life. iii. Hypo: Harry cleans a roof of construction materials. He heads up to the roof during rush hour. A crowd is streaming by the building below but Harry throws things off anyway. Throws something off and kills someone. 1. Standard is not whether a reasonable person would have realized the risk, the def. needs to know and disregard the risk. It is a subjective standard for intent. iv. Letting a dangerous dog out in a park of kids v. Questions to aks 1. Did the defendant realize the risk to human life? a. if yes, the def. acted with recklessness b. if no possible manslaughter 2. 2. Was the defendants recklessness particularly egregious or gross? a. Must determine if there was any good reason the defendant took the risk and how extreme the risk was. b. If no- possible manslaughter

Felony Murder One is guilty of murder if a death results from conduct during the commission or attempted commission of a felony Felony + a killing = a murder Deadly weapon rule - A jury may infer an intent to kill if an actor uses a deadly weapon directed at a vital part of the human anatomy

Felony Murder Common Law Allows prosecutors to prove murder simply by showing a death occurred during the defendants commission of a felony instead of proving the def. acted with malice. Use intent to commit felony for the ordinary intent required for murder. Guilty regardless of mens rea. Rationales: it gives added incentive to felons not to participate in felonies or at least to be extra careful in their commission; 2) it vindicates societys additional calls for retribution when a death occurs; and 3) it eases the prosecutors burden of proving malice in cases in which the def. prob. Did act in callous disregard of human life, but it may be difficult to prove. o Some argue no deterrence from committing accidental act & culpability should be tied to a defs mens rea. Common law felony murder was based on the big six felonies: burglary, rape, kidnapping, robbery, arson, and mayhem would automatically lead to a first degree murder charge. All others would lead to a 2nd degree murder charge. In some jurisdictions automatic liability for murder. Limitations on felony murder: inherently dangerous felonies o Defendant must be engaged in an inherently dangerous felony at the time of the victims death. Under traditional felony-murder def. guilty of murder for showing accountant how he will commit tax fraud. (People v. Howard)

o Should we look at the felony in the abstract and ascertain whether commission of the felony will routinely put victims lives at risk or should we look at how the def. committed the felony in the case at issue and determine whether the felony as committed was particularly risky. For def. abstract For prosecutors- the as committed test is the preferred standard Limitation on felony murder: merger doctrine or independent felony limitation o If the underlying felony is an integral part of the homicide itself, the felony murder doctrine is not applied. If the felony is just a step toward causing death, it merges with the resulting homicide. To use the felony-murder, there must be a separate purpose for punishing the underlying felony. Ex: assume def. charged with assault with intent to kill and felony murder. Prosecutors could not use the assault with intent kill as the underlying felony for their felony murder charge. Makes sense for two reasons 1)prosecutors have to prove intent to kill anyways, so it doesnt make sense to excuse them from proving intent to kill for the murder 2)assaulting someone with the intent to kill is just a step toward killing them. The assault literally merges into the murder. o Felony murder rule deters defs from engaging in dangerous behavior during the commission of a felony. o People v. Smith def. charged with felony murder based on underlying felony of child abuse. Court held felony murder doctrine did not apply b/c the underlying felony required that the jury determine whether the def. acted under circumstances or conditions likely to produce great bodily harm or death. Prosecution already required to prove that the def. acted with malice. If there is a step toward killing the victim, then no felony murder doctrine

o People v. Ireland assault with a deadly weapon was just a step toward killing the victim and therefore merged with the homicide charge. o Courts have recognized certain felonies as qualifying as felonies for the felony-murder doctrine. In most J, robbery, burglary, kidnapping, rape, arson, and lewd conduct with a minor qualify as independent felonies. Application of the felony-murder doctrine: During commission of the felony o Even if felony to trigger felony-murder doctrine, courts will not apply the felony-murder rule unless the charged death occurred during the commission of the felony. Circumstances must actually satisfy two conditions: 1) it was sufficiently temporally and geographically related to the commission of the felony; and 2) the felonious conduct was the cause of death. Some courts refer to this as the res gestae rule there must be a causal connection between the felony and the death. A felony begins with the preparations for the crime and does not end until the defendants are in custody or have reached a position of temporary safety To determine whether the felony was the cause of death, courts look at several issues: 1) who did the killing 2) who was killed and 3) are there any other facts that indicate the killing was not in furtherance of the underlying felony. Most jurisdictions use agency theory: felon only responsible for the death of a victim if that death was caused directly by one of the felons. If a third party causes the death, felons are not responsible. Prox cause theory: felon is responsible for any death that occurs during the felony regardless of whether the felon directly caused the death so long as the death was sufficiently related to the felons conduct.

Model Penal code approach to felony murder Drafters opposed to felony-murder principle because it does not link a defs culpability to her intent. MPC 210(1)(b) provides that if a death occurs during the comm. Of certain listed felonies, there is a presumption that the def. acted with recklessness and extreme indifference to human life. Listed felonies are: engaging in or being an accomplice in the commission of, an attempt to comiit, or flight after committing or attempting to commit robbery, rape, deviate sexual intercourse by threat of force, arson, burglary, kidnapping, and felonious escape. Difference in common law and MPC o Under MPC, presumption that a death that occurs during a felony meets the standards for murder, but the defense can rebut that presumption. Under the common law, once a death occurs during the felony, it is automatically murder Hypo: X breaks into Ys home to steal a painting. He does not bring a weapon b/c he does not want to hurt anyone. Y sees X and dies. Likely not guilty under MPC B/C he would be allowed to rebut the presumption of extreme indifference by presenting evidence that he intentionally did not carry a weapon because he did not want to hurt anyone. Under common law, guilty

Basic Rule for felony murder

Limitations for felony-murder doctrine

Death during felony substitutes for proof of malice 1. Inherently dangerous felony 2. Independent felony 3. In furtherance of felony a. Duration of felony b. Who caused death i. Agency theory ii. Proximate cause theory c. Who was killed i. Does that jurisdiction apply felony Murder for death of a co-felon? d. Was the killing outside the scope of the F

Rape

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Rape the carnal knowledge of a woman forcibly and against her will Forcible Rape general intent crime COMMON LAW

Common law definition of rape only involves vaginal intercourse. Oral and anal intercourse is soddomy. Statutory definition of forcible rape: sexual intercourse by a male, with a female not his wife, by means of force or threat of force, against her will, AND without her consent. 2 Elements: Need both force and lack of consent Consent o Non-consent is an element of the crime rather than consent being a defense i.e. the prosecutor must prove non-consent beyond a reasonable doubt o consent which is induced by fear of violence is void and is not legal consent Force: Use of force OR threat of physical force o State v. Alston (pg. 404) Facts: Alston (D) contended that his rape conviction had been improper because the prosecution (P) had not proven that he used force against his girlfriend. Rule: Use of actual or constructive force to procure victim compliance is an element of rape How Much Force? 3 way jurisdictional split Resistance rule: if the male uses or threatens to use force likely to cause death or serious bodily injury to the female, she is not required to resist. If the male uses lesser force, the female is required to resist the rapist to the utmost, or until exhausted and overpowered.

o Criticism: Forces the female to escalate the danger to herself It assumes saying no is not enough Ignores the fact that many females may freeze up out of fear of the male aggressor Some states have reduced the resistance requirement to only reasonable resistance which leaves the jury to determine the sufficiency of the females resistance. o Rusk v. State (pg. 416) Facts: A woman pressed rape charges against Rusk(D), contending that, although she did not resist him, she feared for her safety if she did not consent to sex with him. Rule: The reasonableness of a victims apprehension of fear is a question of fact for the jury to determine Some states have abolished the force requirement: The sexual act itself is sufficient evidence of force to permit a forcible rape conviction. No consent = force. (this is a yes model). The only remaining issue is whether the intercourse was nonconsensual. Consent can be inferred from behavior. o State of New Jersey in the Interest of M.T.S. v. State (pg. 434) Facts: M.T.S. (D) contended that, because he had not used force to have nonconsensual intercourse with a 15 year old, he could not be guilty of sexual assault. Rule: Force necessary to constitute sexual assault need not use more force than that necessary to perform the sex act.

3 Models of Consent:

No Model: No means no if you say it, but in the absence of no a person can continue to penetrate.

Criticism is women use saying no as part of a mating ritual. Does no really mean no? Statistically, men more often than women interpret no to mean maybe. Does how a woman dresses change the answer? No, females dress does not preclude her from saying no. Can choose to do what she wants to do or not to do with her body. 39% of women put up token resistance even though they are still going to have sex (pg 444 note 6) Yes Model: Sexual penetration is illegal unless ones partner physically or verbally grants you permission for the act. Everything needs to be done explicitly. Criticism: private, overly intrusive. Ruins the mood. Negotiation Model: requires a couple to communicate verbally unless there are acquainted well enough with one another to be able to read your partners non-verbal behavior. Criticism: encroaching upon what we consider private. Intimate and emotional. Takes into account that you know your partner well enough to understand non-verbal gestures. Mens Rea Rape is a general intent offense a person is not guilty of rape if, at the time of intercourse, he entertained a genuine and reasonable belief that the female voluntarily consented. MPC 213.1 THE MPC prohibits four forms of rape: Forcible Drugs Unconscious Underage A man is guilty of rape under MPC in the following circumstances:

The female is less than 10 years old. The female is unconscious. Threatens her or another with grievous bodily harm or kidnapping. Administers drug or intoxicants.

Sexual intercourse includes oral and anal sexual relations. The MPC recognizes the marital immunity rule.

Gross Sexual Imposition (less serious charge) --If a man compels a woman to submit by any threat that would prevent resistance by reasonable women; mental illness; mistakes defendant as husband 213.1. Rape and Related Offenses. (1) Rape. A male who has sexual intercourse with a female not his wife is guilty of rape if: (a) 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 (b) 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 (c) the female is unconscious; or (d) the female is less than 10 years old. Rape is a felony of the second degree unless o (i) in the course thereof the actor inflicts serious bodily injury upon anyone, or o (ii) the victim was not a voluntary social companion of the actor upon the occasion of the crime and had not previously permitted him sexual liberties in which cases the offense is a felony of the first degree. (2) Gross Sexual Imposition. A male who has sexual intercourse with a female not his wife commits a felony of the third degree if: (a) he compels her to submit by any threat that would prevent resistance by a woman of ordinary resolution; or

(b) he knows that she suffers from a mental disease or defect which renders her incapable of appraising the nature of her conduct; or (c) 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.

Nonforcible Rape

Statutory Rape Strict liability offenses involving sexual intercourse between an adult and a person underage. Statutes will vary in what constitutes underage. No Model: No means no if you say it, but in the absence of no a person can continue to penetrate. Criticism is women use saying no as part of a mating ritual. Does no really mean no? Statistically, men more often than women interpret no to mean maybe. Does how a woman dresses change the answer? No, females dress does not preclude her from saying no. Can choose to do what she wants to do or not to do with her body. Yes Model: Sexual penetration is illegal unless ones partner physically or verbally grants you permission for the act. Everything needs to be done explicitly. Criticism: private, overly intrusive. Ruins the mood. Negotiation Model: requires a couple to communicate verbally unless there are acquainted well enough with one another to be able to read your partners non-verbal behavior. Criticism: encroaching upon what we consider private. Intimate and emotional. Takes into account that you know your partner well enough to understand non-verbal gestures.

Defenses

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Defense any set of identifiable conditions or circumstances which may prevent a conviction for an offense 5 General Categories of Defenses: Failure of Proof Defenses o All elements of the offense charged cannot be proven Offense Modifications o While the actor has apparently satisfied all elements of the offense charged, he has not in fact caused the harm or evil sought to be prevented by the statute defining the offense Justifications o Certain harm is outweighed by the need to avoid an even greater harm or to further a greater societal interest Excuses o Admit that the deed may be wrong, but excuse the actor because conditions suggest the actor is not responsible for his deed Non-exculpatory Public Policy Defenses o Statute of limitations, diplomatic immunity, legislative, and executive immunities, and incompetency. o Society benefits from foregoing his conviction. He escapes conviction in spite of his culpability

Burden of Proof

Winship Doctrine - Due process require that the prosecution prove each element of the crime beyond a reasonable doubt Patterson v. New York (pg. 486) Facts: Patterson (D) contended that he should not be burdened with proving the affirmative defense of extreme emotional disturbance in order to reduce murder to manslaughter. Issue: Does the State have to prove no provocation OR does the defense have to prove that there was provocation. General Rule: State must prove.

MPC 1.12 the burden of persuasion for defenses is on the prosecution unless specifically codified that the defendant bears the burden. The defendant still has the production requirement (they have to bring up the defense)

JUSTIFICATION DEFENSES
SELF DEFENSE - Justification Common Law Rule: A person is justified in using deadly force against another if: a. He is not the aggressor b. He reasonably believes that such force is necessary to repel the imminent use of unlawful deadly force by the other person i. Self defense is not a defense if the person claiming it created the situation necessitating it

Deadly force force likely to cause, or intended to cause, death or serious bodily harm Aggressor a person who commits an unlawful act reasonably calculated to produce an affray foreboding injurious or fatal consequences, provokes the conflict, precipitates the altercation, incite the fatal attack, encourage the fatal quarrel or otherwise promote the necessitous occasion for taking life For an aggressor to regain his right of self defense he must communicate his intent to withdraw and in good faith attempt to do so. Elements of Self-Defense: 1.) The amount of force must be proportional: Deadly force may never be used in response to a non-deadly threat, even of that is the only way to repel the non-deadly threat.

2.) Unlawful force: a person has no right to defend himself against lawfuljustifiedforce. o Ex. police officers 3.) Imminency: a person may not use deadly force in self defense unless the aggressors threatened force will occur immediately, almost at that instant 4.) Necessity: a person may not use deadly force unless it is necessary. A person may not use deadly force to repel an unlawful deadly attack if more moderate (non-deadly) force will do the job. o Majority rule: stand your ground doctrine (South Carolina uses this) o Minority rule: Retreat to the wall - You must retreat if there is an avenue of safe retreat. Retreat is only required if there is an entirely safe place available, and only if it is known to the person. Exception: Castle Doctrine a non-aggressor is never required to retreat from his home

Reasonable belief: a person may use deadly force in self defense if he has reasonable grounds to believe (a belief a reasonable person would hold), and actually believes, that she is in imminent danger of death or serious bodily harm, and that use of deadly force is necessary to protect himself, even if her reasonable beliefs in these regards are incorrect. Physical characteristics are incorporated into the reasonable person o Ex. what a reasonable person would believe

United States v. Peterson Facts: Peterson (D) contended that self defense had justified his use of lethal force when he shot victim after inciting the victim to an encounter. Rule: Self defense is not an excuse for homicide claiming it created the situation necessitating it.

4 elements of self defense: i. threat ii. unlawful and immediate iii. fear of imminent peril of death iv. the act is necessary to save your life

Battered Woman Syndrome: if an abused spouse commits homicide in a non-confrontational setting (e.g., while husband sleeping) courts are split on whether evidence of BWS will allow jury to consider self-defense despite lack of an imminent threat BWS will likely fail under common law because of imminent threat requirement BWS has a better chance under the MPC because the response has to be immediately necessary State v. Norman (pg. 537) Facts: Norman (D), charged with murdering her husband while he slept, raised a long standing history of extremely violent abuse by her husband as a defense Rule: Self defense requires immediate peril. Civil Disobedience No necessity for indirect civil disobedience o Indirect not breaking the law you are protesting o Direct breaking the law that you are protesting Three reasons for why defense not allowed here: o Policy itself is not a harm o Takes third party to change law (no causal connection) o There were alternatives United States v. Schoon o Facts: Schoon (D), having occupied federal property to draw attention to U.S. policies in El Salvador, raised necessity as a defense when prosecuted for trespass. o Rule: Necessity may not be raised as a defense to indirect civil obedience

MPC: 3.04. Use of Force in Self-Protection.

(1) Use of Force Justifiable for Protection of the Person. Subject to the provisions of this Section and of Section 3.09, the use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion. (2) Limitations on Justifying Necessity for Use of Force. (a) The use of force is not justifiable under this Section: o (i) to resist an arrest that the actor knows is being made by a peace officer, although the arrest is unlawful; or o (ii) to resist force used by the occupier or possessor of property or by another person on his behalf, where the actor knows that the person using the force is doing so under a claim of right to protect the property, except that this limitation shall not apply if: (1) the actor is a public officer acting in the performance of his duties or a person lawfully assisting him therein or a person making or assisting in a lawful arrest; or (2) the actor has been unlawfully dispossessed of the property and is making a re-entry or recaption justified by Section 3.06; or (3) the actor believes that such force is necessary to protect himself against death or serious bodily injury. (b) The use of deadly force is not justifiable under this Section unless the actor believes that such force is necessary to protect himself against death, serious bodily injury, kidnaping or sexual intercourse compelled by force or threat; nor is it justifiable if:

o (i) the actor, with the purpose of causing death or serious bodily injury, provoked the use of force against himself in the same encounter; or Selected Sections of the Model Penal Code Page 20. o (ii) the actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action that he has no duty to take, except that: (1) the actor is not obliged to retreat from his dwelling or place of work, unless he was the initial aggressor or is assailed in his place of work by another person whose place of work the actor knows it to be; and (2) a public officer justified in using force in the performance of his duties or a person justified in using force in his assistance or a person justified in using force in making an arrest or preventing an escape is not obliged to desist from efforts to perform such duty, effect such arrest or prevent such escape because of resistance or threatened resistance by or on behalf of the person against whom such action is directed. (c) Except as required by paragraphs (a) and (b) of this Subsection, a person employing protective force may estimate the necessity thereof under the circumstances as he believes them to be when the force is used, without retreating, surrendering possession, doing any other act that he has no legal duty to do or abstaining from any lawful action.

(3) Use of Confinement as Protective Force. The justification afforded by this Section extends to the use of confinement as protective force only if the actor takes all reasonable measures to terminate the confinement as soon as he knows that he safely can, unless the person confined has been arrested on a charge of crime.

Differences between Common Law and MPC on Self Defense: 3.04 (1) o CL: Imminent o MPC: immediately necessary Hypo: 2 hikers in a race are in the dessert and are running out of water. There is a water hole a days hike away. One hiker is injured. The other hiker tells the injured hiker that he is going to beat him to the watering hole and fill up his canteen. He is then going to poison the watering hole so the injured hiker cant get water and will die. The injured hiker shoots the other hiker. MPC: not guilty because it was immediately necessary CL: guilty because death was not imminent 3.04 (2)(b) o MPC: Can protect himself against death, serious bodily injury, kidnapping or sexual intercourse o CL: For threats of death or serious bodily harm 3.04 (2)(b)(ii)(1) o CL: Castle doctrine only for home o MPC: Castle doctrine for home OR work 3.04 (2)(b)(ii) o CL: Majority rule for retreat (stand your ground) o MPC: Minority rule for retreat (retreat to the wall) 3.04 (2)(c) o CL: reasonable person standard o MPC: as he believes them to be (even if unreasonable)

DEFENSE OF OTHERS - Justification

Common Law

Rule: A person is justified in using deadly force to protect a third party (someone other than himself) from unlawful use of force by an aggressor. Majority rule: Reasonable belief doctrine - a person is justified in using deadly force to protect a third party from unlawful use of force by an aggressor if : The interveners right mirrors the third partys apparent right of self defense The intervener may use force when he reasonably believes that the third party would be justified in using force to protect himself Minority rule: Alter Ego Principle a person would only use force to defend a third party if the person being defended would in fact have been justified in using the same degree of force in self defense. MPC 3.05 - Use of Force for the Protection of Other Persons.

(1) Subject to the provisions of this Section and of Section 3.09, the use of force upon or toward the person of another is justifiable to protect a third person when: (a) the actor would be justified under Section 3.04 in using such force to protect himself against the injury he believes to be threatened to the person whom he seeks to protect; and (b) under the circumstances as the actor believes them to be, the person whom he seeks to protect would be justified in using such protective force; and (MPC follows the majority rule) (c) the actor believes that his intervention is necessary for the protection of such other person. (2) Notwithstanding Subsection (1) of this Section:

(a) when the actor would be obliged under Section 3.04 to retreat, to surrender the possession of a thing or to comply with a demand before using force in self-protection, he is not obliged to do so before using force for the protection of another person, unless he knows that he can thereby secure the complete safety of such other person; and (b) when the person whom the actor seeks to protect would be obliged under Section 3.04 to retreat, to surrender the possession of a thing or to comply with a demand if he knew that he could obtain complete safety by so doing, the actor is obliged to try to cause him to do so before using force in his protection if the actor knows that he can obtain complete safety in that way; (retreat to the wall, CL minority view) and (c) neither the actor nor the person whom he seeks to protect is obliged to retreat when in the other's dwelling or place of work to any greater extent than in his own. (Difference between MPC and Common Law. Under MPC Castle doctrine applies to work.)

MPC 3.09(2) As with self protection, this defense is subject to the rule that if the intervenors beliefs are reckless or negligent, he may be convicted of an offense based on recklessness or negligence Differences between Common Law and MPC Defense of Others: 3.05 (1)(b) o CL: Reasonable belief or Alter Ego Rule o MPC: Reasonable belief 3.05 (2)(b) o CL: Retreat to the wall or stand your ground o MPC: retreat to the wall 3.05 (2)(c) o CL: Castle doctrine in home

o MPC: Castle doctrine in home and work place Some jurisdictions allow a common law defense of others that extends to fetuses and embryos. The MPC does not.

People v. Kurr Facts: When the trial court disallowed a jury instruction on defense of others, Kurr (D), who argued that she killed her boyfriend to protect her unborn children, argued she was deprived of her due process right to present a defense. Rule: A defense of others jury instruction is appropriate when a mother kills to defend her unborn child. DEFENSE TO PROPERTY - Justification

Common Law Rule: A person is never justified in using deadly force to protect his real or personal property A person is justified in using non-deadly force if she reasonably believes that such force is necessary to prevent the imminent, unlawful dispossession of the property Some jurisdiction say you must ask for the property back unless such a request would be futile or dangerous Force cant be used unless in fresh pursuit o If not in fresh pursuit you must seek judicial redress PEOPLE v. CEBALLOS: original crime not atrocious enough to justify a spring gun Facts: Ceballos was convicted of assault with a deadly weapon when a trap gun he set up in his garage fired into the face of a teenage boy who broken open the garage door. Rule of law: A person may be held criminally or civilly liable if he sets upon his premises a deadly mechanical device and that device kills or injures another

 DEFENSE TO HABITATION - Justification Rule: a person may use deadly force to protect her right to inhabit her home in a safe repose. Elements of defense to habitation under older broad rule (minority rule): A person is justified in using deadly force against another if the actor reasonably believes that: o A person is unlawfully and imminently about to enter the dwelling o A person intends to commit a felony inside, or to cause bodily injury o Deadly force is necessary to prevent the entry Narrower Rule (Majority rule): Deadly force is limited to circumstances in which a person believes that the other person will commit an atrocious (violent) felony inside the dwelling if he enters 3.06. Use of Force for Protection of Property. (1) Use of Force Justifiable for Protection of Property. Subject to the provisions of this Section and of Section 3.09, the use of force upon or toward the person of another is justifiable when the actor believes that such force is immediately necessary: (a) to prevent or terminate an unlawful entry or other trespass upon land or a trespass against or the unlawful carrying away of tangible, movable property, provided that such land or movable property is, or is believed by the actor to be, in his possession or in the possession of another person for whose protection he acts; or (b) to effect an entry or re-entry upon land or to retake tangible movable property, provided that the actor believes that he or the person by whose authority he acts or a person from whom he or such other person derives title was unlawfully dispossessed of such land or movable property and is entitled to possession, and provided, further, that:

o (i) the force is used immediately or on fresh pursuit after such dispossession; or o (ii) the actor believes that the person against whom he uses force has no claim of right to the possession of the property and, in the case of land, the circumstances, as the actor believes them to be, are of such urgency that it would be an exceptional hardship to postpone the entry or reentry until a court order is obtained. (can go after property after fresh pursuit) (2) Meaning of Possession. For the purposes of Subsection (1) of this Section: (a) a person who has parted with the custody of property to another who refuses to restore it to him is no longer in possession, unless the property is movable and was and still is located on land in his possession; (b) a person who has been dispossessed of land does not regain possession thereof merely by setting foot thereon; (c) a person who has a license to use or occupy real property is deemed to be in possession thereof except against the licensor acting under claim of right.

(3) Limitations on Justifiable Use of Force. (a) (Request to Desist.) The use of force is justifiable under this Section only if the actor first requests the person against whom such force is used to desist from his interference with the property, unless the actor believes that: o (i) such request would be useless; or o (ii) it would be dangerous to himself or another person to make the request; or o (iii) substantial harm will be done to the physical condition of the property that is sought to be protected before the request can effectively be made.

(b) Exclusion of Trespasser. The use of force to prevent or terminate a trespass is not justifiable under this Section if the actor knows that the exclusion of the trespasser will expose him to substantial danger of serious bodily injury. (c) Resistance of Lawful Re-entry or Recaption. The use of force to prevent an entry or re-entry upon land or the recaption of movable property is not justifiable under this Section, although the actor believes that such re-entry or recaption is unlawful, if: o (i) the re-entry or recaption is made by or on behalf of a person who was actually dispossessed of the property; and o (ii) it is otherwise justifiable under Subsection (1)(b) of this Section. (d) Use of Deadly Force. The use of deadly force is not justifiable under this Section unless the actor believes that: o (i) the person against whom the force is used is attempting to dispossess him of his dwelling otherwise than under a claim of right to its possession; or o (ii) the person against whom the force is used is attempting to commit or consummate arson, burglary, robbery or other felonious theft or property destruction and either: (A) has employed or threatened deadly force against or in the presence of the actor; or (B) the use of force other than deadly force to prevent the commission or the consummation of the crime would expose the actor or another in his presence to substantial danger of serious bodily injury.

(4) Use of Confinement as Protective Force. The justification afforded by this Section extends to the use of confinement as protective force only if the actor takes all reasonable measures to terminate the confinement as soon as he knows that he can do so with safety to the property, unless the person confined has been arrested on a charge of crime.

(5) Use of Device to Protect Property. The justification afforded by this Section extends to the use of a device for the purpose of protecting property only if: (cant use trap gun) (a) the device is not designed to cause or known to create a substantial risk of causing death or serious bodily injury; and (b) the use of the particular device to protect the property from entry or trespass is reasonable under the circumstances, as the actor believes them to be; and (c) the device is one customarily used for such a purpose or reasonable care is taken to make known to probable intruders the fact that it is used. Differences between Common Law and MPC Defense of Property/Habitation: 3.06 (1)(b)(ii) o CL: Must be in fresh pursuit o MPC: Authorizes the use of non-deadly force to retake possession of land or recapture personal property, even after fresh pursuit has ended. With land the recapturer may not use force unless he believes that it would constitute an exceptional hardship to delay re-entry until she can obtain a court order. Ex. someone is burning your crops 3.06 (5) Spring guns o CL: a defendant may use a spring gun to inflict deadly force only if he would have been justified in using such force had he been present (the actor acts at his own peril in setting such a trap) Ex. a person has a spring gun set up while he is sleeping o MPC: does not allow spring guns

LAW ENFORCEMENT DEFENSES - Justification Common Law

A law enforcement officer is allowed to use deadly force for: Crime prevention Arrest

Deadly force is never justifiable in the prevention of a petty offense i.e. a misdemeanor Minority Rule: law enforcement officers could use deadly force, when necessary, to prevent the commission of any felony or to effectuate the arrest of any felon Majority rule: Most states by statute or case law have limited the use of deadly force in law enforcement to atrocious" felonies MPC 3.07(5)(a) Police can use deadly force if: There is substantial risk that the suspect will cause death or serious bodily harm to another unless commission or consummation of the offense is prevented The force is immediately necessary to prevent the commission of the offense Use of deadly force presents no substantial risk of injury to bystanders

NECESSITY (CHOICE OF EVIL) - Justification No actus reus no criminal act because it is justified Common Law Elements of the defense: Lesser of two evils Reasonable belief the court or jury must put itself in the actors shoes at the time the choice had to be made Imminency of harm harm must appear likely to occur immediately

Causal element the actor must reasonably believe that his actions will abate the threatened harm Blamelessness of the actor actor must not be at fault in creating the necessity

Note on deadly force: Split in jurisdictions Nelson v. State Facts: When Dale Nelson (D) was convicted of reckless destruction of personal property and joyriding when he took two state trucks to use in trying to extricate his own truck which was stuck in a marshy area off the highway, he argued that the court failed adequately to instruct in the defense of necessity. Rule: The defense of necessity may be raised only if the defendants actions, although violative of the law, were necessary to prevent an even greater harm from occurring Civil Disobedience United States v. Schoon Facts: Schoon (D), having occupied federal property to draw attention to U.S. policies in El Salvador, raised necessity as a defense when prosecuted for trespass. Rule: Necessity may not be raised as a defense to indirect civil obedience (p.570 Note 2)-Arguments in defense of political necessity claims 1) such a defense empowers the individual primarily by presenting a forum in which stifled minority or unheeded majority viewpoints receive a public hearing and a governmental response. 2) it places the jury in a postion to acquit the defendant, nullifying the effect of the law that has been broken. (Protects against arbitrary enforcement of the law) 3) it improves the quality and quantity of public discussion.

3.02. Justification Generally: Choice of Evils. (1) Conduct that the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that: (a) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented (cant have 2 things equally dangerous like common law) by the law defining the offense charged; and (b) neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and (c) a legislative purpose to exclude the justification claimed does not otherwise plainly appear. (2) When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his conduct, the justification afforded by this Section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability. (Blameworthiness like Common law) Differences between Common Law and MPC for the defense of necessity: CL: Imminent harm MPC: only a necessary requirement no imminency requirement CL: Defense to murder- jurisdictional split MPC: defense to murder is allowed

EXCUSE DEFENSES

Excuse although the actor committed the elements of the offense and although his actions were unjustified and wrongful, the law does not blame him for his wrongful conduct. DURESS Excuse

No mens rea negates the actors blameworthiness Common Law

Rule: a defendant will be acquitted of an offense other than murder on the basis of duress if he proves the he committed the offense because: another person unlawfully threatened imminently to kill or grievously injure him or another person unless he committed the crime; and he is not at fault in exposing himself to the threat o actor must have reasonable belief that the threat is serious Duress ones freewill is taken over from an outside human force United States v. Contento Pachon Facts: Contento-Pachon (D), who was charged with drug smuggling, sought to raise duress as a defense due to alleged threats against him by his employer if he did not follow orders. Rule: The duress defense contains 3 elements: an immediate threat of death or serious bodily injury, a well grounded fear that the threat will be carried out, and no reasonable opportunity to escape.

2.09. Duress

(1) It is an affirmative defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, that a person of reasonable firmness in his situation would have been unable to resist. (2) The defense provided by this Section is unavailable if the actor recklessly placed himself in a situation in which it was probable that he would be subjected to duress. The defense is also unavailable if he was negligent in placing himself in such a situation, whenever negligence suffices to establish culpability for the offense charged.

(3) It is not a defense that a woman acted on the command of her husband, unless she acted under such coercion as would establish a defense under this Section. [The presumption that a woman acting in the presence of her husband is coerced is abolished.] (4) When the conduct of the actor would otherwise be justifiable under Section 3.02, this Section does not preclude such defense. Differences between Common Law and MPC on the defense of Duress: CL: Imminency requirement MPC: No imminency requirement CL: Must be a result of threat MPC: Result of threat or prior use of force CL: Must be a deadly threat MPC: Threat does not need to be deadly CL: No duress defense to murder. Murder cannot be reduced to a lesser crime MPC: Allows duress defense to all criminal defenses including murder

Differences between Duress and Necessity difference between necessity and duress a necessity defense is that the defendants free will was properly exercised to achieve the greater good and not that his free will was overcome by an outside force as with duress duress is caused by another human being necessity is caused by a force of nature

People v. Unger

Facts: Unger (D) escaped from a minimum security honor farm allegedly to avoid homosexual assaults and threats of death Rule: The defenses of necessity and compulsion are available in escape cases, and the jury should be so instructed where evidence adduced at trial is sufficient to raise the defense.

Duress is no defense to killing an innocent person. The person threatened with his own demise ought rather die himself, than escape by the murder of an innocent. William Blackstone People v. Anderson Duress is not a defense to murder Facts: When Anderson (D) was charged and convicted of 1st degree murder, he argued that the fact he was coerced to kill the victim constituted a viable defense. Rule: Duress does not justify the killing of an innocent person. INTOXICATION Excuse Definition: A disturbance of an actors mental or physical capacities resulting from the ingestion of any foreign substance, most notably alcohol or drugs (including proscribed medication) Intoxication (Voluntary) (Winship Doctrine Defense-trying to negate the mens rea requirement) Saying you could not have acted knowingly because intoxication Not available for a general intent offense Available for specific intent offense Distinguishable because of alcoholism because you would use an insanity defense Intoxication from illegal substances would not change the analysis

United States v. Veach

Facts: After he got in an accident, Veach (D), who was intoxicated at the time, resisted arrest and threatened federal law enforcement officers. He was convicted and contended that the trial court erred in excluding a defense based on voluntary intoxication. Rule: Only the mens rea of a specific intent crime may be negated by a voluntary intoxication defense; this defense has no applicability to general intent crimes

MPC 2.08 Essentially the same as the common law except that if you recklessly cause harm while intoxicated it is not a defense. 4 kinds of Involuntary Intoxication: coerced intoxication induced by reason of duress or coercion pathological intoxication intoxication grossly excessive in degree, given the amount of the intoxicant, to which the actor does not know he is susceptible intoxication by innocent mistake unexpected intoxication resulting from the ingestion of a medically prescribed drug Involuntary intoxication is theoretically treated as the person is temporarily insane.

MPC 2.08 Subsection 2 covers-pathalogical Sub 1- covers other 3

2.08. Intoxication. (1) Except as provided in Subsection (4) of this Section, intoxication of the actor is not a defense unless it negatives an element of the offense. (2) When recklessness establishes an element of the offense, if the actor, due to

self-induced intoxication, is unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial. (3) Intoxication does not, in itself, constitute mental disease within the meaning of Section 4.01. (4) Intoxication that (a) is not self-induced or (b) is pathological is an affirmative defense if by reason of such intoxication the actor at the time of his conduct lacks substantial capacity either to appreciate its criminality [wrongfulness] or to conform his conduct to the requirements of law. (5) Definitions. In this Section unless a different meaning plainly is required: (a) "intoxication" means a disturbance of mental or physical capacities resulting from the introduction of substances into the body; (b) "self-induced intoxication" means intoxication caused by substances that the actor knowingly introduces into his body, the tendency of which to cause intoxication he knows or ought to know, unless he introduces them pursuant to medical advice or under such circumstances as would afford a defense to a charge of crime; (c) "pathological intoxication" means intoxication grossly excessive in degree, given the amount of the intoxicant, to which the actor does not know he is susceptible. INSANITY -Excuse Competent to Stand Trial

A defendant is competent to stand trial unless he has sufficient present ability to consult with his lawyer with reasonable degree of rational understanding and has a rational as well as factual understanding of the proceedings against him. (Dusky v. United States)

Addiction and acoholism Different from involuntary intoxication because it is an illness Incompetencies Mentally ill or disabled Suffers from amnesia Unable to communicate with his attorney due to a physical handicap Inability to speak

Insanity is an affirmative defense. The defendant has the burden of proof to prove to the fact finder that he was insane at the time of the crime. One can be mentally ill without being insane, but not vice versa. State v. Johnson All the test below came from this case MNaghten Test To establish a defense on the ground of insanity it must be clearly proved that, at the time of committing the act, the party accused was laboring under such defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know that what he was doing was wrong. Nature and quality of the act he was doing cognitive incapacity Did not know right from wrong moral incapacity Criticism severely restricts expert testimony

Irresistible Impulse or Control Test

A complete destruction of governing power of the mind resulting in a crime perpetrated in a sudden and explosive fit

Product Test An accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect Criticism jury didnt have guidance to determine the concept of productivity o Experts were being used to determine competency Bazelon Test A defendant is not responsible if at the time of his unlawful conduct his mental or emotional processes or behavior controls were impaired to such an extent that he cannot justly be held responsible for his act.

Model Penal Code 4.01 Relieves the defendant of responsibility under two circumstances When, as a result of mental disease or defect, the defendant lacked substantial capacity to appreciate the criminality (wrongfulness) of his conduct When, as a result of mental disease or defect, the defendant lacked substantial capacity to conform his conduct to the requirements of law

NNaghten (common law) vs. MPC MNaghten focuses on a defendants knowledge of the nature and quality and wrongfulness of his conduct. MPC uses appreciate rather than know in order to convey a broader sense of understanding than simple cognition.

o A little child may know that he is pulling the trigger of a gun, know that this cause a person to die, and know that killing is bad, but a young child does not appreciate the significance of his actions in a deeper sense. He does not truly understand what it means to die, the devastation it will have to others etc.

NEW DEFENSES

Addiction and AlcoholismCannot punish a status. Comes from the idea that illnesses should not be punished. You can punish cocaine use but not being a cocaine addict. Robinson v. California Addiction/ Alcoholism Defense o Facts: Robinson (D) was convicted under California statute criminalizing drug addiction and argued that imprisonment for the crime constituted cruel and unusual punishment. o Rule: A state may criminalize drug addiction. Rotten Social Backgroundsay that some courts have started to consider how people were raised. Cultural Defense(if you see religion) (State v. Kargar) Statutory language from that case. State v. Kargar Cultural Defense o Facts: Kargar (D), an Afghani refugee, was convicted of sexual assault after being seen kissing his infant sons penis, a common practice among Afghani people. o Rule: The focus in a de minimis determination is on whether the admittedly criminal conduct was envisioned by the legislature when it defined the crime.

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Jury nullification I think under these facts this guy is clearly guilty of first degree murder. Even though the prosecutor will be able to meet the standard of the Winship doctrine., the only way he wont be able to convicted is through jury nullification. Theories of punishment General deterrence deter society as a whole Specific deterrence deter the individual ACTUS REUS The event society does not want to occur Voluntary conduct (act or ommision) + social harm Actus act Reus harmful result Result crime murder punishing the result of murder Conduct crime DUI punishing the conduct of the crime MPC 2.01 State v. Utter o Cite on exam if it is automatic and not conscious then you cannot meet the actus reus requirement left for the jury to determine whether his actions truly were involuntary Epileptic seizure argue it is not your faultinvoluntary o If there is a history of epileptic seizures and you dont try to fix it then you are responsible for the act

MENS REA Broadly defined: with a vicious will or evil mind, culpable state of mind Narrow definition: a person commits the act with a specific element o Intentional conscious objective to cause the result, virtually certain to occur

o Knowingly actor is aware of the fact or correctly believes that the fact exists or expects the act and willfully ignores it o Malice intentionally or recklessly cause the social harm of the offense Regina v. Cunningham o Criminal negligence the actor should be aware that the actor crates a substantial and unjustifiable risk to others Should have been aware but wasnt 3 factors: the gravity of the harm probability of the harm o recklessness the actor consciously disregards a substantial and unjustifiable risk to cause social harm MPC 2.02 o 4 different states of mind purposely knowingly recklessly negligently o drops intent and breaks it up into purposely and knowingly willful blindness o refuse to gain knowledge because you dont want to get stuck with that culpability negate an element of the offense o Common law is a defense o MPC: not a defense high probability of knowledge

STRICT LIABILITY Doesnt have a mens rea requirement

CL: MISTAKE OF FACT As long as it was in good faith that you didnt know the fact then that mistake is okay in proving that you did not meet the mens rea requirement CL: MISTAKE OF LAW Ignorance of the law is no excuse Exception: the person reasonably relied on a reasonable statement of law and it is shown to be in error o A judge or cop tells you the wrong law Exception: The mistake negates the mens rea (Cheek v. U.S.) specifically written in the statute May violate due process when the actor is unaware MPC 2.14 Mistake of Law and Fact Same as common law ACTUAL CAUSE But for test Accelerate Concurrent actions MPC 2.03 o (2) purposely and knowingly o (3) recklessly and negligently contemplation of the actor similar to proximate cause PROXIMATE CAUSE Is it fair to hold the person liable?

o intervening act if foreseeable then proximate cause if not foreseeable no proximate cause CONCURRENCE OF THE ELEMENTS 5 things o voluntary act or omission (actus reus) o public or social harm o mens rea o actual cause o proximate cause CRIMINAL HOMICIDE CL: Murder Intent to kill Intent to inflict grievous bodily harm Extreme recklessness depraved heart o If a actor consciously takes a substantial and unjustifiable risk in causing human death Intent to commit a felony Statutory definition of murder: (degrees) Willful Premeditated Deliberate

CL: Manslaughter Voluntary o Heat of passion o Words alone are not adequate Involuntary o (I)The killing of another person in a criminally negligent murder o (II) a person kills someone during an unlawful act that isnt a felony CL: Felony Murder As a matter of law a defendant is considered to have killed with malice aforethought Look for limitations to felony murder rule: o Inherently dangerous if the felony isnt inherently dangerous then the felony murder rule does not apply o Independent felony merger doctrine cant make someone guilty of manslaughter getting of murder through felony murder rule o Causal link link between felony and killing o Someone besides the felon commits the murder (Sophophone Case) Agency approach -A felon is only responsible for homicide in furtherance of a felony Proximate cause approach - a felon may be held responsible for a homicide perpetrated by a non felon of the felon proximately caused the death MPC HOMICIDE 210 Murder 3 elements (need only one) o purposely

o knowingly o recklessly under circumstances manifesting an extreme indifference to the value of human life Manslaughter Recklessness (lesser degree than murder) Under extreme mental or emotional disturbance (looks like Common Law: Voluntary manslaughter) o Much easier to use this than in common law Negligent Homicide When homicide is committed negligently Lowest form of the MPC classification o Use common laws definition of negligence No felony murder rule DEFENSES Failure of proof Satisfied elements but didnt cause the kind of harm that is trying to prevent (Penis kisser) Justification Defense of others 2 doctrines (rules) o majority: reasonable belief that person is justified in helping someone else if that person reasonably believed he needs help

o Minority rule: Alter ego rule Defense of others is only justified when the third party does in fact have a right to self defense If the third party makes a mistake of whether the person he is helping has a right do so he will be screwed MPC 3.05 Use the reasonable belief rule The third party must tell the other person to retreat o If a person being helped has a duty to retreat he must do so CL: DEFENSE OF PROPERTY A person is never justified in using deadly force to protect personal or real property Right to go after property under fresh pursuit

CL: DEFENSE OF HABITATION Requirements of using deadly force to protect habitation: o Person is about to unlawfully enter o Person is going to commit a felony o A person is going to cause sever injury MPC 3.06 covers both personal an real property You can recapture property or habitation even after fresh pursuit if it is real property and there would be extreme hardship to get it back through the courts o Ex. someone is burning your crops No spring guns

Common law- spring guns Had you been there you could have used the exact same force o Courts dont like spring guns NECESSITY Elements: o Lesser evil analysis o Immanency of harm o Causal element - actually believe what you are doing will avoid the harm o The actor cant cause the harm\ Jurisdictional split on if deadly force is allowed MPC 3.02 Unlike CL the threat does not have to be imminent o You are afraid of a guy who has a violent history looser standard than common law Defense is available for homicide unlike the jurisdictional split under CL

EXCUSES Duress 3 elements o Immediate threat of death or serious bodily harm

o Well grounded fear that the threat will be carried out o No available opportunity for escape You cant be at fault for putting yourself in the situation Not a defense to murder

MPC 2.09 Reasonableness requirement You can use it as a defense to murder No immanency requirement

INTOXICATION Voluntary intoxication o Winship Doctrine defense trying to negate the mens rea element Ex. cant act knowingly because I was so drunk o Cant be a defense to a general intent crime no mens rea element to pick apart o Difference of alcoholism an alcoholic will be an insanity defense o Illegal substances follow the same analysis MPC 2.08 o If the culpable state of the crime is reckless then intoxication is no defense Policy reasons Involuntary Intoxication 4 kinds:

o Coerced o Pathological get grossly more intoxicated than you thought you could be o Innocent mistake: about the character of the substance o Unexpected intoxication resulting from a medically prescribed drug The person is temporarily insane MPC 2.08 o (2) pathological o (1) covers the other three types

INSANITY 3 common law tests: Mignaughten test : 2 prong test o Didnt know the nature of the act, or o You did not know if it was wrong Cognitive test Irresistible impulse (control test) o Sudden act by a person messed up in the head and lack of control over actions Cognition and volatility Product test: was the act a product of a mental illness? o Jury will decide MPC 4.01 2 prong test:

o (kind of like Mignauten)a whether the person appreciated (instead of know) the wrongfulness (not criminal)of his conduct or (makes the MPC test easier to use than CL test) o (kind of like impulse)whether he could conform his conduct to the requirements of the law (doesnt require a sudden impulse) New Defenses Drug addiction o Cant punish you for a status Rotten social background o Some courts have started to look out how people are raised Cultural Defense o Afghani penis kisser State v. Kargar (cite the case and the rule that is in the case) INCHOATE CRIMES Pg 741 note 4 Requires dual intent (specific intent) Intent to perform the acts leading up to the crime, and Intent to commit the crime

Inchoate Crimes

Inchoate crimes, also called incomplete crimes, are acts which involve the inclination to commit, or indirect participation in, a criminal offense. Because of the need to prevent crime, inchoate crimes were originally defined under common law as separate and distinct offenses. Inchoate crimes include attempt, conspiracy, and solicitation. Being an accessory or an accomplice to a crime are also inchoate criminal offenses. Functions of inchoate crimes: Legal basis for the intervention of law enforcement Lines need to be drawn so a police officer that confronts the dilemma in deciding when to intervene, facing the risk that if they wait the crime may be committed while if they act they may not yet have any valid charge The actor is predisposed to these kinds of actions and could attempt them again Common sense of justice just because the actor is too incompetent to succeed doesnt mean he should get a free pass

ATTEMPT Common Law

Definition: when a person, with intent to commit a criminal offense, engages in conduct that constitutes the beginning of the perpetration of, rather than mere preparation for the target (i.e. intended) offense A criminal attempt is treated as a lesser offense than the target crime. They are usually punished by half of the sentence of the target offense. Merger Doctrine: a criminal attempt merges into the target offense, if it is successfully completed Actus Reus

Test to identify the point where conduct goes form prepatory stages to perpetration: Last act test a criminal attempt only occurred when a person performed all of the acts that she believed were necessary to commit the target offense

Dangerous proximity test The nearness of the danger, the substantiality of the harm and the degree of apprehension felt is the stronger the case for calling the act an attempt Physical proximity test (U.S. v. Mandujano) An act must go so far that it would result , or apparently result in the actual commission of the of the crime it was designed to effect, if not extrinsically hindered or frustrated by extraneous circumstances Unequivocality/ Res Ipsa Loquitur test a person is not guilty of a criminal attempt until her conduct standing alone, demonstrates her criminal conduct Probable Desistance test a person is guilty of attempt if she has proceeded past the point of no return, i.e. the point past which an ordinary person is likely to abandon her criminal endeavor

United States v. Mandujano (pg. 745) Facts: not stated in casebook Rule: There must be some appreciable fragment of the crime committed for an act to qualify as an attempt. The rime 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. Mens Rea

Requires dual intent (specific intent) 1. Intent to perform the acts leading up to the crime, and 2. Intent to commit the crime People v. Gentry (pg. 738) Facts: when Gentrys girlfriend was severely burned after he spilled gasoline on her during a drunken argument, Gentry was charged with the crime of attempted murder Rule: A finding of specific intent to kill is a necessary element of the crime of attempted murder.

DEFENSES TO ATTEMPT Impossibilty defense Factual impossibility (NOT A DEFENSE) (pg 744) exists when the defendants intended end constitutes a crime but she fails to consummate it because of a factual circumstance unknown to her or beyond her control o Ex. pointing and pulling a trigger of an unloaded gun at some one but not being aware that the gun was not loaded Legal impossibility (CAN BE DEFENSE)(pg 774) MPC 5.01(1) abolishes this defense and common law upholds it o Pure (ALWAYS A DEFENSE) exists if the criminal law does not prohibit defendants conduct or the result that she has sought to achieve In other words: Actor engages in conduct that he believes is criminal, but is not actually prohibited by law Cant be convicted Ex. a man believes the legal age of consent is 16, and who accurately believes that a girl to whom he had sexual intercourse is 15. If the law of consent was actually 15 then he would not be guilty of a crime. o Hybrid (MAY BE A DEFENSE) exists if defendants goal was illegal, but commission of the offense was impossible due to a factual mistake by him regarding the legal status of some factor relevant to his conduct. Ex. receives unstolen property believing it was stolen, offer a bribe to a juror who is not a juror; shoots a corpse believing it is alive; tries to hunt deer out of season and shoots a stuffed animal People v. Thousand

o Facts: when thousand was charged with attempted distribution of obscene material to a minor (over the internet), he argued that since the young girl with who he thought he was communicating was in actuality an undercover sheriff, it would have been legally impossible to have committed the offense. o Rule: the defense of factual impossibility is not available to a charge of attempt. Abandonment Defense

Abandonment defense: Abandons the attempt before crossing the perpetration the line Must be VOLUNTARY attempt External : Abandon because tools are inadequate (Not favorable in courts) Internal: o Abandon because the actor is worried of the consequences (less favorable in courts) o Shame (favorable in courtssays something positive about the actors character) Commonwealth v. McCloskey o Facts: McCloskey (D), a prison inmate, argued that by voluntarily abandoning his plan to escape from prison and then telling a guard of his abandonment, he should be exonerated from the charge of attempted prison breach. o Rule: a person who voluntarily abandons a criminal offense exonerates himself from criminal responsibility 5.01. Criminal Attempt. (1) Definition of Attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:

(a) purposely engages in conduct that would constitute the crime if the attendant circumstances were as he believes them to be; (Completed crimes conduct crimes) or (b) when causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or with the belief that it will cause such result without further conduct on his part; (completed result crimes) or (c) purposely does or omits to do anything that, under the circumstances as he believes them to be, is an act or omission constituting a substantial step (actus reus test) in a course of conduct planned to culminate in his commission of the crime. (Incomplete crimes) (2) Conduct That May Be Held Substantial Step Under Subsection (1) (c). Conduct shall not be held to constitute a substantial step under Subsection (1)(c) of this Section unless it is strongly corroborative of the actor's criminal purpose. Without negativing the sufficiency of other conduct, the following, if strongly corroborative of the actor's criminal purpose, shall not be held insufficient as a matter of law: (a) lying in wait, searching for or following the contemplated victim of the crime; (b) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission; (c) reconnoitering the place contemplated for the commission of the crime; (d) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed;Selected Sections of the Model Penal Code Page 34. (e) possession of materials to be employed in the commission of the crime, that are specially designed for such unlawful use or that can serve no lawful purpose of the actor under the circumstances; (f) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, if such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances; (g) soliciting an innocent agent to engage in conduct constituting an element of the crime.

(3) Conduct Designed to Aid Another in Commission of a Crime. A person who engages in conduct designed to aid another to commit a crime that would establish his complicity under Section 2.06 if the crime were committed by such other person, is guilty of an attempt to commit the crime, although the crime is not committed or attempted by such other person. (4) Abandonment Renunciation of Criminal Purpose. When the actor's conduct would otherwise constitute an attempt under Subsection (1) (b) or (1)(c) of this Section, it is an affirmative defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose. The establishment of such defense does not, however, affect the liability of an accomplice who did not join in such abandonment or prevention. Within the meaning of this Article, renunciation of criminal purpose is not voluntary if it is motivated, in whole or in part, by circumstances, not present or apparent at the inception of the actor's course of conduct, that increase the probability of detection or apprehension or that make more difficult the accomplishment of the criminal purpose. Renunciation is not complete if it is motivated by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar objective or victim. Notes on MPC: Merger applies If the target crime is complete, the actus reus element is met o You have done everything you could do but for some reason it fails Example: shooting at someone but missing If the target crime is incomplete, the test is substantial step ( 5.01(1)(c))

Difference between Common Law and MPC Attempt: MPC 5.01(1)

o Common Law: Objective viewhow the exact facts unfold o MPC: look at attendant circumstances MPC 5.01(1)(a) o Common Law: Objective standard? o MPC: as the guilty party BELIEVES the circumstances to be not how they truly are no impossibility defense only exists as a defense if you didnt commit the crime MPC 5.01(4) o Common Law: No Abandonment Defense o MPC: There is an abandonment defense

SOLICITATION State v. Mann Rule of Law: Solicitation involves the asking, enticing, inducing, or counseling of another to commit a crime State v. Cotton Facts: when Cotton wrote to ask his wife to prevent her 14-year-old daughter from testifying at his trial for sexually molesting her, he was convicted of criminal solicitation, although his wife never receive the letters. Rule of Law: The offense of solicitation requires some form of actual communication from the defendant to the person intended to be solicited. General Principles At common law a person is guilty of solicitation if he intentionally invites, requests, commands, or encourages another person to engage in conduct constituting a felony, or a misdemeanor involving breach of the peace or obstruction of justice Model penal code 5.02 definition is broader than the common law in that it applies to solicitation to commit any misdemeanor (as well as all felonies.

Concept of merger applies to the crime of solicitation, just as it does to the offense of attempt. Actus reus General rule o The actus reus of a solicitation is consummated when the actor communicates the words or performs the physical act that constitutes the invitation, request, command, or encouragement of the other person to commit an offense. Hypo: D asks X, or inquires of X by letter, will you please kill v this is solicitation Unsuccessful communications o At common law, a solicitation does not occur unless the words or conduct of the solicitor are successfully communicated to the solicited party. o Model Penal code- Code provides that one who unsuccessfully attempts to communicate a solicitation is guilty of solicitation. MPC 5.02(2) Relationship of solicitor to solicited party o At common law- a person is not guilty of solicitation if she merely asks another person to assist in the crime, that is, to be an accomplice in the crime. To be guilty, a solicitor must ask the other person to actually perpetrate the offense herself. MPC- provides that a person is guilty of solicitation if she asks the other person to commit the offense (as at common law), or if she requests the other person to do some act that would establish the latter persons complicity as an accomplice in the offense 5.02(1). o Hypo: d asks x to furnish D with a gun so that he (D) can kill v. D is not guilty of common law solicitation, as he did not ask X to kill V. he only asked to aid in the crime. In contrast, D is guilty of solicitation under the MPC. Mens rea Common law

o Solicitation is a specifc-intent offense at common law. The solicitor must intentionally commit the actus-reus (request, encourage another to commit the crime) with the specific intent that the person solicited commit the target offense. D jokes and asks Y to kill Ds wife. D is not guilty of solicitation. Although he intended to communicate the solicitation, he did not possess the specific intent to have Y commit the crime. Model Penal code o MPC does not deal in concepts of specific intent and general intent. However, the analysis is the same: a person is not guilty of solicitation unless she acts with the purpose of promoting or facilitating the commission of the solicited offense (5.02(1)). Defense o The MPC BUT NOT THE COMMON LAW- provides a defense to the crime of solicitation if the soliciting party: 1)completely and voluntarily renounces her criminal intent; and 2)persuades the solicited party not to commit the offense or otherwise prevents her from committing the crime. MPC 5.02(3)

CONSPIRACY (pg. 797)

Common Law: Defined: a partnership in criminal purposes, a mutual agreement or understanding, express or implied, between two or more persons to commit a criminal act or to accomplish a legal act by unlawful means. The gist of the offense of conspiracy lies in the unlawful agreement

MERGER: Common law conspiracy does NOT merge into the attempted/completed offense. Conspiracy merges under the MPC. People v. Carter o Rule: Criminal conspiracy is defined as a partnership in criminal purposes, a mutual agreement or understanding, express or implied, between two or more persons to commit a criminal act or to accomplish a legal act by unlawful means. A conviction of conspiracy does not merge with a conviction of the completed offense. Thus a criminal can be convicted on conspiracy and the other crime. Pinkerton v. United States o FACTS: Walter and Daniel Pinkerton were convicted of various substantive violations of the Internal Revenue Code and conspiracy to violate same. o RULE: As long as a conspiracy continues, the overt act of one partner may be the act of all without any new agreement specifically directed to that act.

Actus Reus The Actus Reus is the meeting of the minds. In the case of conspiracy it is also the mens rea. A conspiracy occurs as soon as the agreement is made. There doesnt need to be an overt act towards furthering the offense. The agreement can be written, verbal, or implied by the actions of the parties. A conspiracy to achieve a morally wrongful act is a crime even if the targeted wrongful act is not a crime.

Commonwealth v. Azim FACTS: After Azim drove the car in which the two men who beat, robbed, and choked the victim were riding, he was convicted of simple assault, robbery, and conspiracy

RULE OF LAW: Once a conspiracy is established and upheld, a member of the conspiracy is also guilty of the criminal acts of his co-consiprators.

Mens Rea (dual intent) 1. Must intend to form an agreement 2. Must intend the object of the agreement is achieved. (Specific Intent) Knowledge of a crime coupled with providing an instrumentality or service that aids commission of the crime is insufficient. A person must act with purpose of promoting or facilitating the offense. However, purpose can be inferred from knowledge under the common law. People v. Swain o FACTS: Swain was found guilty of conspiring to murder a young boy in a drive-by shooting. o RULE: A conviction of conspiracy to commit murder requires a finding of intent to kill, and cannot be based on theory of implied malice. People v. Lauria o FACTS: Lauria knew that some of his answering service customers were prostitutes who used his service for business purpose. o RULE OF LAW: The intent of a supplier (who knows of the criminal use to which his goods are put) to participate in the criminal activity may be inferred from circumstances showing that he has a stake in the criminal venture or by the aggravated nature of the crime itself.

Pinkerton Doctrine: A conspirator to a crime is still liable even if he is not present when acts towards the furtherance of the conspiracy are committed.

*BilateralThe common law generally requires bilateral conspiracy. At least two parties must intend for the crime to happen. People v. Foster FACTS: After Ragsdale was approached by Foster about robbing an elderly man, Ragsdale feigned agreement with the plan in order to gain additional information and then informed the police of the planned robbery RULE OF LAW: A person commits conspiracy when, with intent that an offense be committed, he agrees with another to the commission of the offense.

*Abandonment is not a defense under the common law to the crime of conspiracy. It can be a defense to other crimes committed by members of the conspiracy if it is communicated to each member of the conspiracy that the party is abandoning the conspiracy. MPC 5.03 Does have merger. Different from Common Law There must be an agreement and an overt act by at least one person Unilateral is allowed (Only one person must intend to commit the crime) Renunciation is allowed. Rejects the Pinkerton Doctrine 5.03. Criminal Conspiracy. (1) Definition of Conspiracy. A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he: (a) agrees with such other person or persons that they or one or more of them will engage in conduct that constitutes such crime or an attempt or solicitation to commit such crime; or

(b) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

(2) Scope of Conspiratorial Relationship. If a person guilty of conspiracy, as defined by Subsection (1) of this Section, 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 person or persons, whether or not he knows their identity, to commit such crime. (3) Conspiracy with Multiple Criminal Objectives. If a person conspires to commit a number of crimes, he is guilty of only one conspiracy so long as such multiple crimes are the object of the same agreement or continuous conspiratorial relationship. (4) Joinder and Venue in Conspiracy Prosecutions. (a) Subject to the provisions of paragraph (b) of this Subsection, two or more persons charged with criminal conspiracy may be prosecuted jointly if: o (i) they are charged with conspiring with one another; or o (ii) the conspiracies alleged, whether they have the same or different parties, are so related that they constitute different aspects of a scheme of organized criminal conduct. (b) In any joint prosecution under paragraph (a) of this Subsection: o (i) no defendant shall be charged with a conspiracy in any county [parish or district] other than one in which he entered into such conspiracy or in which an overt act pursuant to such conspiracy was done by him or by a person with whom he conspired; and o (ii) neither the liability of any defendant nor the admissibility against him of evidence of acts or declarations of another shall be enlarged by such joinder; and

o (iii) the Court shall order a severance or take a special verdict as to any defendant who so requests, if it deems it necessary or appropriate to promote the fair determination of his guilt or innocence, and shall take any other proper measures to protect the fairness of the trial. (5) Overt Act. No person may be convicted of conspiracy to commit a crime, other than a felony of the first or second degree, unless an overt act in pursuance of such conspiracy is alleged and proved to have been done by him or by a person with whom he conspired. (6) Renunciation of Criminal Purpose. It is an affirmative defense that the actor, after conspiring to commit a crime, thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose. (7) Duration of Conspiracy. For purposes of Section 1.06(4): (a) conspiracy is a continuing course of conduct that terminates when the crime or crimes that are its object are committed or the agreement that they be committed is abandoned by the defendant and by those with whom he conspired; and (b) such abandonment is presumed if neither the defendant nor anyone with whom he conspired does any overt act in pursuance of the conspiracy during the applicable period of limitation; and (c) if an individual abandons the agreement, the conspiracy is terminated as to him only if and when he advises those with whom he conspired of his abandonment or he informs the law enforcement authorities of the existence of the conspiracy and of his participation therein.

Differences between Common Law and MPC for Conspiracy: Common Law: No Merger

MPC: Merger

Common Law: Follows Pinkerton Doctrine (A + C are also liable for B stealing a car) MPC: Rejects Pinkerton Doctrine Common Law: Bilateral Agreements MPC: Allows Unilateral Agreements Common Law: Sometimes knowledge can infer conspiracy MPC: Knowledge is not sufficient (knowledge can never infer purpose) Common Law: Does not allow renunciation of the conspiracy MPC: Allows renunciation of the conspiracy 5.03 (7)(C) if either, He advises those he conspired with of his abandonment, or Inform law enforcement authorities of the existence of the conspiracy and his participation. Thwarts the success 5.03 (6) of the conspiracy manifesting a complete and voluntary renunciation. Common Law: No overt act is required MPC: 5.03 (5) Requires an overt act unless it is a first or second degree felony ACCOMPLICE LIABILITY Common Law Rule: A person is an accomplice in the commission of an offense if she intentionally assists another person to engage in the conduct that constitutes the offense. Policy: By being an accomplice, the person is manifesting a willingness to be held accountable. Your acts are my acts.

The liability of the accomplice derives from the primary party that provided assistance. The accomplice is convicted of the same offense as the primary party. MERGER: Merges under both the common law and the MPC. State v. Ward RULE OF LAW: An accessory cannot be tried before a principal and cannot be convicted of a higher crime than the principal (an individual who commits a crime or induces another to commit a crime). State v. Hoselton Facts: after Hoselton and his friends entered a barge, his friends stole certain items from the storage unit. Rule of Law: To convict a person as an aider and abettor, and thus a principal in the second degree, the prosecution must demonstrate that he or she shared the criminal intent of the principal in the first degree. Actus Reus A person assists in an offense if she solicits or encourages another person to commit a crime, or if she aids in its commission. An attempt to assist that does not in fact aid in the commission of the crime does not constitute an accomplice. A person that uses an innocent agent [Bailey v. Commonwealth] to commit a crime is not an accomplice. Their liability is direct as the primary party. Presence alone is insufficient to count as assistance. The actor must in some way aid, encourage, assist, or further the criminal purpose. However, Pinkerton Doctrine applies-If the primary actors are aware of the assistance the accomplice is supposed to provide, it is sufficient even if the actor doesnt actually provide assistance.

If the accomplice is actually helping, it doesnt matter if the primary parties dont know of the help.

State v. V.T. FACTS: V.T. contended that there was insufficient evidence to support the adjudication that he was an accomplice in the theft from his relatives apartment of a camcorder RULE OF LAW: Passive behavior in the presence of a crime and friendship with the crimes perpetrators alone does not support accomplice liability. Wilcox v Jeffrey FACTS: After Wilcox attended and reviewed a concert played in London by Coleman Hawkins, and American saxophonist who had been given leave to land in England provided he did not work while there, Wilcox was convicted of aided and abetting Hawkins in the commission of an illegal act. RULE OF LAW: A person who, through his actions, encourages an illegal act is guilty of aiding and abetting that illegal act. Bailey v. Commonwealth FACTS: When Bailey purposely agitated Murdock, then told him to get his handgun and wait outside on his porch for Bailey to come over and injure or kill him, Murdock was shot by police after Bailey called them to report a man on Murdocks porch waiving a gun around. RULES OF LAW: One who effects a criminal act through an innocent or unwitting agent is a principal in the first degree. Mens Rea (dual intent) Intent to aid, and Intent to see the crime succeed/level of culpability required in the definition of the offense.

Note: If the mens rea required for the commission of the crime (2nd Element) is recklessness or negligence, it must only be proven that the actor was reckless or negligent in regard to the ensuing harm. (Cab driver speeding and killing pedestrian hypo) Knowledge can show intent to succeed in the crime. Use the Lauria Test to see if the defendant had knowledge as well as stake in the outcome. Majority Rule-Mandates that the conduct is intentional Minority Rule- Mandates that the crime is intentional

People v. Lauria FACTS: Lauria knew that some of his answering service customers were prostitutes who used his service for business purposes RULE OF LAW: The intent of a supplier (who knows of the criminal use to which his goods are put) to participate in the criminal activity may be inferred from circumstances showing that he has a stake in the criminal venture or by the aggravated nature of the crime itself. Riley v. State FACTS: Richard Riley argued that the court erred by instructing the jury that Rileys culpability was the same regardless whether he were found to be a principal or an accomplice RULES OF LAW: The mental state of acting with sufficient recklessness to rise to first degree assault is the same whether the defendant is charged as principal or an accomplice. State v. Linscott FACTS: When an intended robbery victim was killed during the robbery in which Linscott participated with three other men, Linscott was convicted of robbery and , on a theory of accomplice liability, of murder

RULES OF LAW: An accessory is liable for any criminal act that was the natural or probable consequence of the crime that he advised or commanded, although such consequence may not have been intended by him.

Natural and Probable Consequences Doctrine: To be convicted of a secondary crime, the result of the secondary crime must be a natural and probable (foreseeable) consequence of the primary crime. An accomplice can be convicted if the primary actor meets the required elements of the crime. (This gets you around the Winship Doctrine) 2.06. Liability for Conduct of Another; Complicity.

(1) A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both. (2) A person is legally accountable for the conduct of another person when: (a) acting with the kind of culpability that is sufficient for the commission of the offense, he causes an innocent or irresponsible person to engage in such conduct; or (b) he is made accountable for the conduct of such other person by the Code or by the law defining the offense; or (c) he is an accomplice of such other person in the commission of the offense.

(3) A person is an accomplice of another person in the commission of an offense if: (a) with the purpose of promoting or facilitating the commission of the offense, he o (i) solicits such other person to commit it, or

o (ii) aids or agrees or attempts to aid such other person in planning or committing it, or o (iii) having a legal duty to prevent the commission of the offense, fails to make proper effort so to do; or (b) his conduct is expressly declared by law to establish his complicity.

(4) When causing a particular result is an element of an offense, an accomplice in the conduct causing such result is an accomplice in the commission of that offense if he acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense. Selected Sections of the Model Penal Code Page 15. (5) A person who is legally incapable of committing a particular offense himself may be guilty thereof if it is committed by the conduct of another person for which he is legally accountable, unless such liability is inconsistent with the purpose of the provision establishing his incapacity. (6) Unless otherwise provided by the Code or by the law defining the offense, a person is not an accomplice in an offense committed by another person if: (a) he is a victim of that offense; or (b) the offense is so defined that his conduct is inevitably incident to its commission; or (c) he terminates his complicity prior to the commission of the offense and o (i) wholly deprives it of effectiveness in the commission of the offense; or

o (ii) gives timely warning to the law enforcement authorities or otherwise makes proper effort to prevent the commission of the offense. (7) An accomplice may be convicted on proof of the commission of the offense and of his complicity therein, though the person claimed to have committed the offense has not been prosecuted or convicted or has been convicted of a different offense or degree of offense or has an immunity to prosecution or conviction or has been acquitted. Differences between the Common Law and the MPC for Accomplice Liability: Common Law: Have to Aid: (A would not be guilty if she agreed to aid but didnt show up) MPC: Agree to Aidgreater liability. (A would be guilty if she agreed to aid in a robbery but did not show up) Common Law: No liability if an actor tries, but fails to aid in the commission of an offense. MPC: Liability if actor tries but fails to aid in the commission of the offense. Common Law: Uses Pinkerton Doctrine MPC: No Pinkerton Doctrine Common Law: No Renunciation MPC: Allows renunciation if: Deprives it of effectiveness in the commission of the offense, or Gives timely warning to law enforcement

Common Law: MPC: focuses on defendants blameworthiness. Common Law: Uses the Lauria Test (Knowledge can infer purpose) MPC: No Lauria Test (Knowledge Cannot infer purpose)

MPC: Omission Rule: You are responsible when you have a legal duty. Common law is the same.

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