Criminal Law

Front 1

Punishment is Unconstitutional When it:

Back 1

1)Makes no reasonable contribution to acceptable goals of punishment and is rather a purposeless imposition of pain and suffering (OR)

2)Is grossly out of proportion to the severity of the crime.

a.Attn is given to:
i.The public’s view/attitude concerning the sentence
ii.History and precedent
iii.Legislative attitudes
iv.The response the jury reflected in sentencing decision

Front 2

The Narrow Proportionality Principle:

To determine whether a sentence (is disproportionate) violates the 8th Amend. look at:

Back 2

1) The gravity of the offense and harness of punshment

2) Sentences imposed on other criminals in the same jurisdiction

3) Sentences imposed on other criminals in other jurisdictions

Front 3

8th AMENDMENT Cruel and Unusual punishment (GREG TEST) 2-part test

Back 3

1.Sentence does not fit a legitimate goal of punishment (OR)
-No measurable contribution to a legitimate goal of punishment

2.Punishment is out of proportion to sentence= violation
-Sentence can be invalidated if any prong is satisfied

Front 4

What is Actus Reus?

Back 4

A VOULANTARY ACT that causes the social harm is necessary to satisfy the actus reus requirement

Front 5

Can an omission constitute Actus Reus?

Back 5

- Criminal liability can be based upon an OMISSION if the defendant had a legal duty to act and was physically capable of acting... However, failing to act must also cause social harm.

Front 6

Legal Duty v. Moral Obligation

Back 6

- Legal Duty: Duty imposed by law or by contract

Moral Obligation: Something you should do b/c it’s the “right” thing… to do

-EVERY legal obligation = founded on a moral obligation but NOT vice versa

Front 7

The courts have recognized (5) situation in which individuals have a legal duty to act:

Hint: SCRAP
Note: CL and MPC are the same

Back 7

1. Statutory duty;
2. Contract;
3. Special Relationship;
4. Assumption of Care;
5. Peril is created by Defendant.

Front 8

What is a Hate Crime?

Back 8

Act + Criminal Intent + Motivated by Hate:

The sentencing for this crime can be elevated to a higher sentence if the crime is motivated by racial discrimination. Wisconsin v. Mitchell

Front 9

Doctrines and/or Basic Principles associated Actus Reus

Hint: TAANP

Back 9

1. Thinking of a crime is not committing one

2. Act cannot be compelled by the gov’t

3. Act MUST be voluntary

4. No criminal liability for omission to act UNLESS legal duty existed

5. Ppl should only be punished for their conduct not b/c of that type of person they are

Front 10

For Every Crime, For Every Crime... These elements MUST be proved

Back 10

1) Prohibited ACT resulting in social harm ( Actus Rea)

2) Prohibited MENTAL STATE (“Mens Rea”)

3) CAUSATION linking D’s act with social harm

4) Concurrence b/t “Mens Rea” & “Actus Rea” (act)

Front 11

Defining Actus Reus under Common Law

Back 11

Requires a voluntary and a social harm An act is voluntary if defendant willed the action or if she was sufficiently free that she could be blamed for her conduct. The social harm is the wrong caused by defendant's voluntary act.

Front 12

Defening Actus Reus under The Model Penal Code

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No person may be convicted of a crime in the absence of conduct that includes of which he is physically capable.

Front 13

An Involuntary Act can?

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Negate the action OR serve as an affimative defense.

Front 14

Involuntary Acts under Common Law:

Hint: DRUC

Back 14

1. Movements During Sleep
2. Reflex
3. Unconsciouness
4. Convulsion

Front 15

Involuntary Acts under The Model Penal Code:

Hint: DRUCH

Back 15

1. Movements During Sleep
2. Reflex
3. Unconsciousness
4. Convulsion
5. Hypnosis

Front 16

Involuntary Acts
CL v. MPC

Back 16

MPC extends CL such that acts done under hypnosis and in a state of unconsciousness are "no action."

Front 17

What is Mens Rea

Back 17

A mental state is required for most crimes.

Note: Strict liability and public welfare offences are the exception. To prove an offense, the prosecution must prove mens rea as to every element of the offense

Front 18

The term Mens Rea has at least two different meanings:
1. Broad; and
2. Technical

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1. Broad: refers to culpability- meaning that kind of moral blameworthiness that ought to make a person criminally responsible for his or her actions.

2. Technical: Mens Rea refers to the particular mental state usually known as SCIENTER or INTENT.

Front 19

Proving Mens Rea:

The Standard of Proof and Ways to Prove it

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Standard of Proof: mens rea, like every element of the crime, must be proven beyond a reasonable doubt.

Mens Rea can be proved by:
1. Circumstantial Evidence;
2. Transferred Intent;
3. Specific v. General Intent (CL);
4. Voluntary Intoxication; and
5. Willful Blindness

Front 20

Mens Rea under Common Law:

Hint: Israel Rang Nancy Malboros and Whiskey

Back 20

1. Intentionally (Willfully): to CONSCIOUSLY cause the result OR when one is virtually certain that the object will occur as a result of Defendant's conduct;

2. Recklessness: A heightened "criminal negligence" or "conscious disregard" of a substantial and unjustifiable risk.

3. Negligence: Objective fault, Defendant should have been aware that his conduct created a substantial and unjustifiable risk that the social harm would occur.

4. Maliciously: when defendant intentionally or grossly reckless causes the social harm prohibited by the statute.

Willful Blindness: only requires that Defendant be aware of the probable existence of the element.

Front 21

Mens Rea under The Model Penal Code:

Hint: Patty Knows Richard Neglects Willy.

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1. Purpose: conscious object with conduct and result. Defendant MUST be aware of the existance or belive or hope that such circumstances do exist.

2. Knowledge: conscience awareness that results are practically certain to occur.

3. Recklessness: conscious disregard of a substantial and unjustifiable risk.

4. Negligence: should have been aware of a substantial and unjustifiable risk.

5. Willful Blindness: if one deliberately avoids knowledge because of the belief that knowing would be bad, then defendant satisfies mens rea of knowledge. Riquires a high probability.

Rule of Thumb:
- Purpose: is the desire for a certain outcome.

-Knowledge: is the indifference to a certian outcome.

- When it is not clear which element a mens rea applies, apply it to all elements of the offense.

- Where the statute is silent on mens rea, recklessness is required.

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Attendant Circumstances:

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Attendant Circumstances are "certain factors of conditions" which must be present when the actor performs the prohibited conduct and/or causes the prohibited results that constitute the social harm of the offense.

Note: attendant circumstances are found are found in the definition of the crime.

Example: Burglary is the entery of a "dwelling" with the intent to commit a crime therein... therefore, for Defendant to be guilty of burglary the entry must be of a "dweling" (the attendant corcumstance) not entry into a commercial structure or a chicken coop.

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What is Specific Intent (Only a CL Issue):

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Specific Intent is the intent to do some additional consequence beyond that which must have been committed or cause in order to complete the crime. Acts in addition to general intent.

Note:
- Proof of specific intent is required, but it may be circumstancial.

- To negate specific intent, a mistake must be HONEST.

Front 24

What is General Intent (Only a CL Issue):

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General Intent is that volitional doing of a prohibited act.

- General Intent ONLY requires to commit the act constituting the crime... Can infer all mens rea from observing the conduct.

- To negate general intent, the mistake must be HONEST and REASONABLE.

Front 25

Strict Liability

Hint: Strict Liability is generally the same under CL and the MPC.

Back 25

Strict Liability: where there is no mental state required for an offense.

- Public welfare and those created by statute.

- SL crimes are generally restricted to violations and are punishable by fines, NOT incarceration.

Front 26

Mistake of Fact under Common Law:

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- Under common law, mistake of fact MUST negate mens rea of the crime charged with.

- Under CL- NO mistakes get you off for STRICT LIABILITY
- Defendant would NOT be guilty of mistake of fact negates the specific intent.

- For General Intent: defendant is Not guilty if mistake of fact was HONEST and REASONABLE. Defendant would be guilty if mistake of fact was HONEST, but UNREASONABLE.

- Moral Wrong Test: if mistake of fact is granted, will hold Defendant for a higher offense when were the situation as he supposed it to be, his conduct constituted this lesser offense.

- If defendant steals diamonds believing they’re glass - CL= grand larceny.

- If Defendant steals glass believing it‘s diamonds, CL= petty larceny and attempted grand larceny.

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Mistake of Fact under The Model Penal Code:

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Under the Model Penal Code, mistake of fact MUST negate the mental state required to establish any element of the offense.

- Logical Relevance Test: figure out the mens rea for each and every element of the crime.

- If mistake of fact of granted, defendant will be held for a lesser offense when were the situation as he supposed it to be, his conduct constituted a lesser offense.

- if defendant steals diamonds believing they are glass- MPC= petty larceny

- If defendant steal glass believing these are diamonds- MPC= petty larceny and attempted grand larceny

- MPC- look at the world through the defendant's eyes in a FACTUAL (not legal) manner.

- MPC- No mistakes get you off for STRICT LIABILITY.

Front 28

Mistake of Law:

Note: CL and MPC approaches are similar. In general, unless the mistake of law falls into a recognized exception, ignorance of the law is NO defense.

Back 28

- except otherwise EXPRESSLY provided a person's good faith belief that conduct does not constitute a crime is an AFFIRMATIVE DEFENSE if they acted in REASONABLE RELIANCE upon a statement of the law contained in:

1. a Statute or other enactment;
2. a Judicial Decision, Opinion or Judgement;
3. an Administrative Order or Grant of Permission; and
4. an Official Interpretation of the Public Servant Body charged by law with the responsibility for the interpretation, administration or enforcement of the law defening the crime.

Note: IGNORANCE of the law is NOT a valid excuse.

Front 29

Mistake of Law under Common Law:

Back 29

- Mistake of Law is NO defense, UNLESS the mistake is HONEST and REASONBLE.

-Collateral Law;
-Reliance on Official Statement;
- No reasonalbe notification or publishing;
- Specifications in the Statute that knowledge of the law is required.

Front 30

Mistake of Law under the Model Penal Code:

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- The Model Penal COde does NOT recognize a defense of mistake of law unless there is express negation.

- Specification in the statute that knowledge of the law is required.

- Collateral Law;
- Reliance on Official Statement
- MPC codifies the CL reasonable reliance doctrine

- No reasonable notification or publishing.

Front 31

What is Causation and when is it needed?

Back 31

Causation: (the 3rd basic element of a crime) is the link between defendant's act/conduct and the prohibited result.

- Two (2) types of causation MUST be proven to establish criminal liability.
1. Defendant's conduct must be an actual "but-for" cause of the social harm; and
2. Defendant's conduct MUST be the proximate "legal cause" of the social harm.

Note:
- Result Crimes: crimes which are defined in terms of a prohibited result (Causation is Required).

- Conduct Crimes: crimes which are defined in terms of a prohibited conduct (NO Causation Required).

For Example: Causation is NOT required for speeding (conduct crime).

- Causation is only required for result crimes such as Homicide.

Front 32

Cause in Fact under Common Law:

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- Conduct must satisfy the but-for test.

- Actual cuase (but-for cause) exists when the result that constitutes the criminal offense would not have occured when it did "but-for" defendant's voluntary act (or omission).

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Cause in Fact under The Model Penal Code:

Back 33

The MPC only requires actual causation and uses the same "but-for" test as CL.

- MPC only requires actual causation.

Front 34

Proxiamte Cause under Common Law:

Hint: Frank Invited Daniela on Vacation

Note: MPC handles proxiamte cause within the mens rea as to result.

Back 34

Foreseeability Test: to determine proximate cause, one must determine whether the actor was the direct cause and whether there were any intervening actors or intervening causes (coincidences) that would sever the causal chain back to the defendant.

- No intervening causes unless the cause is "foreseeable" or "de minimus".

- Intervening Acts: intervening acts can sufficiently break the chain of causation;

- Dependent Intervening Acts: occur where the intervening actor acts becuase of the condition brought upon by the defendant's prior conduct. However, if the dependant intervening actor was "grossly negligent" this is sufficient to break the chain of causation.

- Voluntary Intervening Acts: occurs where the intervening actor acts "voluntarily."
- Intentional acts always break the chain of causation.
- Reckless acts are sometimes sufficient (depending on court.)

Front 35

Proximate Cause under The Model Penal Code:

Note: MPC handles proximate causation within the mens rea as to results.

Back 35

- The Model Penal Code handles proximate causation within the mens rea as to results.

- The question is: whether the result was too distant OR accidental in occurence to have a just bearing on defendant's liability or on the gravity of the offense.

- If the result deviates too far from what is foreseeable, then one will be exculpated for purpose and knowledge crimes. if not, then defendant will be convicted even if there is an intervening actor.

- For risky crimes, the result must have been foreseeable in order to convict.

- Purpose/Knowledge: Causation is NOT established if result was NOT what was intended, UNLESS:
1. Plaintiff just a different person (Transferred Intent)
2. The Injury is less that Intented.

Recklessness/Negligence: Causation is NOT established if the result is NOT within risk the actor was or should have been aware of, UNLESS:
1. Plaintiff is just a different person (Transferred Intent)
2. The Injury is less than ricked.

Exceptions to Foreseeability:
- Take the

Front 36

2 Part Test For Causation:

Back 36

1. Was defendant's act an OPERATIVE CAUSE of the victims death
- If the harm to the victim is attributable entirely to other factors and NOT at all brought about by the defendant's conduct, NO causal connection exists and no criminal liability for the result to attach.

2. Were defendant's actions so extraordinarily REMOTE or ATTENUATED that it would be unfair to hold the defendant criminally liable.

Front 37

Criminal Homicide

Back 37

Homicide: is the unlawful killing of one human being by another with "Malice Aforethough".

There are two (2) main categories of Homicide:
1. Murder: the unlawful killing of one human being by another WITH "Malice Aforethought"

2. Manslaughter: is the unlawful killing of one human by another WITHOUT "Malice Aforethought".

Front 38

Beginning of Human Life Cycle under Common Law:

Back 38

- Under common law the prohibition on homicide is applied as soon as a person is "born alive"

- Born Alive Doctrine: At common law it is NOT considered murded if the child dies while still in the mother's body. However, if the child is born and then dies, then its murder.

Front 39

Three (3) Principles Regarding Abortion:

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1. Woman has the right to get an abortion before viability (the ability of a fetus to live outside the womb), WITHOUT interference of the state.

2. The State has the power to restrict abortions after fetal viability UNLESS it would endanger the woman's life or health.

3. The state has a legitimate interest from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.

Note:
- Based on these principles, the STATE MAY criminalize the killing of a fetus as long as the law contains exceptions that protect the mother's constitutional rights.

Front 40

Uniform Determination of Death Act:

Note: This is followed by the majority of jurisdictions.

Back 40

This means that turning off the life support does NOT break the chain in causation and the person originally causing the fatal injury can be prosecuted.

1. Irreversible cessation of respiratory functions; OR
2. Irreversible cessation of all functions
IS EQUIVALLENT TO DEATH!

Front 41

What is Malice Aforethought?

Back 41

Malice Aforethought: is the legal term of art/technical label for the mens rea of homicide.

Front 42

How is "Malice Aforethought" established?

Back 42

The Model Penal Code follows the Common Law approach on how to establish "Malice Aforethought".

- "Malice Aforethought" is found when one (1) of the following four (4) conditions is present:
1. An intent to kill (EXPRESS)
2. An intent to commit serious bodily injury
3. An "abandoned and malignant" (depreved) heart; OR
4. The Felony Murder Rule

Front 43

Express Malice

Back 43

If defendant INTENDS to kill, then he acts with EXPRESS MALICE

Front 44

Implied Malice

Back 44

If "Malice Aforethought" is shown any other way than intent to kill, then its IMPLIED MALICE.

Front 45

Deadly Weapon Rule (Common Law)

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The "Deadly Weapon Rule" permits (but does NOT require) the jury or the fact finder to infer "intent to kill" when the defendant has used a deadly weapon aimed at a vital part of the human body.

Front 46

Jurisdictional Split in defining a "Deadly Weapon"

Back 46

- Some states define a deadly waepon as an instrument designed for the purpose of causing death or serious bodily injury.

- Other states define it as any substance or intrument capable of causing death or serious bodily injury.

Front 47

Manslaughter under Common Law (in general)

Back 47

Manslaughter: is the unlawful killing of another human WITHOUT "Malice Aforethought."

Common Law recognizes three (3) types of Manslaughter:
1. Voluntary MS;
2. Involuntary MS; and
3. Vehicular MS.

Front 48

Voluntary Manslaughter

Hint: LID

Back 48

Is the intentional killing that would normally qualify as a 2nd degree murder, but which is reduced to the lesser crime of voluntary manslaughter through the application of a partial defense like (defenses below):
1. Legally Adequate Provocation ("Heat of Passion");
2. Imperfect self-defense;
3. Dimished Capacity

- the typical sentence for VM is 3-11 years.

Front 49

Involuntary Manslaughter

Back 49

- Involuntary Manslaughter is the least severe UNLESS the common law jurisdiction recognizes vehicular manslaughter.

- A defendant is charges with Involuntary Manslaughter if he or she brought about the death of another human being through "criminal negligence"
(gross negligence OR recklessness)

- The typical sentence for IM is 2-5 years.

Front 50

Vehicular Manslaughter

Back 50

- Is an unintended killing resulting from "gross negligence"

- In CA if convicted of "vehicular manslaughter", defendant can serve less than one (1) year in jail.

Front 51

Unlawful Act "Misdemeanor Manslaughter" (Common Law)

Back 51

Misdemeanor Manslaughter: is an unintentional killing that occurs during the commission of an unlawful act.

- It includes "Malum is se" (wrong in itself) misdemeanors.

Front 52

Criminal Homicide under The Model Penal Code:

Note: MPC does NOT recognize degrees of murder.

Back 52

- A person is guilty of criminal homicide if he or she PURPOSELY, KNOWINGLY, RECKLESSLY, or NEGLIGENTLY causes the death of another human being.

- Recklessness and Indifference to human life is presumed if the actor is engaged or is an accomplice to the commission of, attempt to commit, or flight after committing or attempting to commit certain crimes.

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Manslaughter under The Model Penal Code:

Back 53

1. It is committed recklessly (but without circumstances manifesting extreme indifference to the value of human life); OR
2. when homicide that would otherwise be murder "is committed under the influence of EXTREME mental or emotinal DISTURBANCE for which there is reasonable explanation or excuse."

Note: this is the MPC's response the CL's doctrine of "Heat of Passion"

Front 54

Negligent Homicide under Model Penal Code:

Note: this is the equivalent to CL Involuntary Manslaughter.

Back 54

- A criminally negligent killing.

Front 55

1st Degree Murder (only CL)

Back 55

1st Degree Murder:

1. The murder involved "premeditation and deliberation"

2. The murder was committed using a means specified in the 1st degree statute (such as: Lying in wait; Poison and Toture); OR

3. The murder occurred during the commission or attempted commission of an enumarated felony (such as Burglary; Arson; Rape; or Robbery)

Front 56

What is "Premeditation and Delibaration"

Back 56

Premeditation: is thinking about the killing ahead of time. The killer must have reflected upon and thought about the killing in advance.
- HOWEVER, there is NO particular time needed for premeditation.
- "Wink of an Eye" Doctrine: premeditation can occur in an instant.

Deliberation: "cool head" (NOT insane but rahter defendant knew what they were doing)
- Deliberation refers to the quality of defendant's thought process.
- Killing is "delibarate" when undertaken with a "cool head."

Front 57

Legally Adequate Provocation under Common Law:

Back 57

Legally Adequate Provocation: mitigates murder to manslaughter.

- The killing MUST have been committed in sudden "heat of passion" under adequate provocation.

- Heat of Passion (adequate provocation) ONLY applies to intentional homicides:
- Aggravated Assult or Battery;
- Mutual Combat;
- Serious crimes against close relatives;
- Illigal arrest;
- Observation of infidelity.

- Requires a causal link betwwen the provocation/passion and the homicide.

Front 58

Legally Adequate Provocation under The Model Penal Code:

Back 58

- Would mitigate murder to manslaughter.

- Extreme Mental or Emotional Disturbance: a homicide committed under the influence of "extreme mental or emotinal disturbance" for which there is a reasonable explanation or excuse.
- MPC equivalent of Provocation;
- EMED applies to all types of homice;
- MPC's use of EMED is a broader form of the CL provocation defense.
- MPC requires that defendant be aware of the risk being taken (recklessness).

Front 59

There are Three (3) Approaches to Determine if Murder can be "mitigated" (reduced) to Manslaughter:

Back 59

1. Common Law: Categorical Test;
2. The Modern "Reasonable Man" test (which later became the "Reasonable Person" test); OR
3. Model Penal Code's: Extreme Mental (or) Emotional Disturbance defense.

Front 60

The Early Common Law Categorical Approach to Provocation:

Back 60

- Emerged in 1700's.

- Held that a claim of "provocation" mitigated only if one killed in response to:
- An aggravated assult or battery;
- The observation of a serious crime against a close relative;
- An illegal arrest;
- Mutual combat; or
- Catching one's wife committing adultery (ONLY applied to men)

Front 61

The "Mere Words" Rule

Back 61

- This rule STILL survives today!

- The Rule states that words alone can NEVER constitute adequate provocation.

Front 62

The Modern Reasonable Person Test (CL ONLY):

Back 62

- Emerged in the late 1800's.
- Now the test requires "reasonableness" to determine which types of behavior could be considered "legally adequate provocation"

- Under the Modern Approach the jury MUST find:
1. Defendant actually acted in the "heat of passion"

2. The "heat of passion" was provoked by an act or event that would lead the reasonable person in defendant's shoes to lose control;

3. The defendant did NOT have time between the provocative act or event and the killikng; AND

4. A reasonable person in the defendant's shoes would NOT have had sufficient time to "cool off."

- The Fundimental inquiry, is Whether or not the defendant's "reason" was at the time of his act, so disturbed by some passion.

- Passion for revenge to an extent as would render ordinary men of average disposition liable to act rashly or without deliberation and reflection= ACTING FROM PASSION RATHER THAN JUDGEMENT.

Front 63

Who is the "REASONABLE PERSON" in the "reasonable person test?

Back 63

Under:
- Common Law: Murder will be mitigated to voluntary manslaughter if a reasonable person in the defendant's situation would hace been provoked to act in the heat of passion.

The Model Penal Code: intructs jurors to consider the situation from the actor's perspective. It also requires that juror find that defendant's explanation for his "mental or emotional" disturbances are REASONABLE ones.

Front 64

Analysis/Test for Legally Adequate Provocation:

Back 64

- The passion, which will reduce an unlawful killing to voluntary manslaughter, MUST be caused by LEGALLY ADEQUATE PROVOCATION.

- The TEST for determining Legally Adequate Provocation is OBJECTIVE!!!

- OBJECTIVE: "whether a reasonable man, confronted with this series of events, would have become impassioned to the extent that his mind was incapable of "cool reflection"

- If "Sufficient Provocation" exist (the fact-finder MUST determine):
- Whether the defendant actually acted in the heat of passion when he committed the homicide and thus:
- Whether the "provocation" led directly to the killing; OR
- Whether there was time for "cool reflection"

- In a "provocation" defense the actions of the victim establishing provocation are relevant...
- The victims ACTIONS on the DAY of (the killing) MUST lead DIRECTLY to the killing.

Front 65

Under the MODEL PENAL CODE & COMMON LAW suicide and euthanasia is...

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-Suicide is ILLEGAL
-killing yourself (&)

-Euthanasia is ILLEGAL:
-Killing another out of mercy rather than ill-will.

-ACTIVE:

-Medications to shorten one’s life (alleviate the pain/ suffering )

-PASSIVE (2 forms):

-1st – Abstentation from performing acts prolonging ones life.

-2nd – Discontinuation of actions designed to sustain life

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Death and Dignity Act allows dr. to assist in death if:

Back 66

a.Waiting period.

b.Family is notified.

c.Patient has TERMINAL ILLNESS.

d.Patient has INFORMED CONSENT.

e.Patient is COMETENT (not depressed or mentally ill)

OREGON > ONLY state that permits Physician assisted suicides!

Front 67

HEAT OF PASSION AND WIFE KILLING: MEN WHO BATTER/ MEN WHO KILL.

Sane individuals that kill are divided into 2 categories:

Back 67

1. Those who pre-meditate Murder.

2. Those who act in the "heat of passion"

Front 68

MPC’s EXTREME EMOTIONAL DISTRUBANCE TEST:

§210.3(b) PROVOCATION (under MPC)

Back 68

- The defense is considered when “ under the influence of extreme mental or emotional disturbance for which there is reasonable explanation and excuse

•(Determined from the actors view point under circumstance s HE at the time believed)

•SUBJECTIVE TEST (b/c its what actor (D) believed at the time) instead of what a RP would believe

Front 69

EXTREME EMOTINAL DISTURBANCE is the emotional state of an individual who:

Back 69

1)Has NO mental disease or defect that rises to the level established by §30.05 of the Penal Law (&)

2)Is exposed to an extremely unusual and overwhelming stress (&)
a) a spontaneous explosion is not required, rather a significant mental trauma could affect the D’s mind for a while, simmering in the subconscious and then inexplicably coming to the force

3)Has an extreme emotional reaction to it, as a result of which there s a loss of self-control and reason is overborne by intense feelings such as
a.Passion, Anger, Distress, Grief, Excessive Agitation, Etc.

Front 70

Is the EXTREME EMOTIONAL DISTURBANCE test BROADER than the "HEAT OF PASSION" doctrine?

Back 70

YES > it is Broader then the “heat of passion” doctrine b/c it ALLOWS a cooling off period b/t the fatal act and the disturbance > An intervening “Cooling off period” does NOT negate the defense (like in HOP doctrine) **
- E.g. significant mental trauma that could have affected D’s mind for a substantial period of time.

Front 71

What is the main difference between the MPC's Extreme Emotional Disturbance test and CL's Heat of Passion Doctrine?

Back 71

UNDER MPC for ”EXTREME EMOTINAL DISTURBANCE” we use an (under CL only objective)

- OBJECTIVE/SUBJECTIVE TEST (Under the COMMON LAW -The personal characteristics of a person were NOT to be considered!)
-Judged from the Viewpoint of a person in the actors situation

•Thus pregnancy, weight, physical deformities, Mental state etc. are al taken into consideration in evaluating the reasonableness of the D’s behavior

Front 72

What is Depraved Heart Murder? (Usually Treated as 2° Murder)

Back 72

Gross recklessness + “Extreme Indifference for Human Life” = sufficient MALICE for 2nd Degree Murder

Front 73

Malice Aforethought for Depraved Heart Murder:

Back 73

-IMPLIED:

-No considerable provocation occurs (or)

-when attendant circumstances of killing show an Abandoned or Malignant heart

Front 74

Depraved Heart Murder under Common Law:

Back 74

COMMON LAW> Needs a showing of Gross recklessness and indifference to human life.

-D knew that his actions created a substantial and unjustified risk of death but did it anyways

-Homicides that involves a “Depraved Heart” = 2nd Degree Murder

-Homicides involving:

-Gross Negligence; (OR)

-Simple Recklessness = Involuntary Manslaughter

Front 75

Elements of Implied malice:

Back 75

Requires D’s awareness of the risk of death to another

-Implied malice exists when no considerable provocation appears, or when the circumstances attending the killing show an ABANDONED and MALIGNANT HEART

-Statutory definition of implied malice:
- FOR EXAMPLE: Killing by one with an “abandoned and malignant heart”

Front 76

Tests for Implied Malice:

Back 76

Note: Tests are Subjective.
1. The THOMAS test; and
2. The PHILLIPS test.

Front 77

The THOMAS test for Implied Malice:

Back 77

Implied malice when the D for a base, antisocial motive and with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death

Front 78

The PHILLIPS test for Implied Malice:

Back 78

Malice is implied when the killing is proximately caused by an “act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that is conduct endangers the life of another and who acts with disregard for life.

Front 79

There are (2) Ways a prosecutor can secure an involuntary manslaughter conviction

Back 79

1. 1st he can prove that the D had Criminal Negligence (requisite mens rea 4 IM)
a. MAJORITY: , something more than ordinary civil negligence is required: the state of mind sometimes described as “gorss negligence” or “recklessness” for IM conviction.
b. MINORITY: simple negligence is enough ( EX: Washington).

2. 2nd He can apply the Misdemeanor Manslaughter Rule

Front 80

What is the term used to describe the required mental state for involuntary manslaughter?

Back 80

- Many states use the term “Criminal Negligence” to describe the required mental state for n involuntary manslaughter conviction (it’s a legal term like Malice aforethought)

Criminal Negligence – Killing resulting from gross negligence. (This would include MPC recklessness as well)

Front 81

What is the difference between Gross/ Reckless negligence and Simple negligence?

Back 81

Difference b/t Gross/ Reckless negligence and simple negligence is AWARENESS (2 Diff. Standards)**

-*If D is aware of risk but does it anyways then Reckless/Gross Negligence occurs*

Front 82

What is Simple Negligence?

Back 82

- Failure to use “ordinary caution” (Caution exercised by a man of reasonable prudence under similar conditions ).

- If one is under a duty to act, and fails to do so, and that failure is the proximate cause of a death of a human being there will be criminal culpability for manslaughter.

Front 83

What is the FELONY MURDER RULE?

Back 83

- The felony Murder Rule Attempts to deter negligent or accidental killings that may occur in the course of committing that felony

- A PERSON WHO KILLS DURING AN ATTEMPTED FELONY HAS COMMITTED 2ND DEGREE MURDER

- These charges can be elevated to 1st degree murder under the COMMON LAW if the killing occurred during the perpetration or attempted perpetration of an enumerated felony (one specified by the 1st degree statute) > (even if death was an accident)> Stamp
-i.e. BARRK: ( Burglary, Arson, Robbery, Rape, Kidnapping)

Front 84

Under the Felony Murder Rule a FELON is liable for...

Back 84

- A Felon is held strictly liable for ALL killings committed by him or his accomplices in the course of a felony

Front 85

There are (4) Limiting Rules for Accidental Deaths in States That Recognize the The Felony Murder Rule. These are...

Hint: MIRA

Back 85

1. The Inherently dangerous felony limitation
2. The “res gestae” requirement
3. The Merger Doctrine &
4. The Agency Rule

Front 86

The inherently Dangerous Limitation on the Felony Murder Rule:

Back 86

- is A HIGH PROBABILITY that the offense will result in DEATH

Front 87

What is the Test to determine if felony is Inherently Dangerous:

Back 87

- Court looks to the elements of the felony in the abstract, not the “particular” facts of the case, i.e. not the D’s specific conduct.

-EXCEPTION:
-When the danger claimed to be inherent in the elements of a felony is a matter of scientific, medical, or technological expertise rather than common knowledge. (i.e. meth manufacturing) Need to know how to mfgr meth to know whether or not its inherently dangerous- thus you would need to know how its done, and how D did it to analyze it.

Front 88

What are the Different definitions of Inherently Dangerous:

Back 88

- An inherently dangerous felony is one which “ by its very nature, cannot be committed without creating a substantial risk that someone will be killed

- An offense carrying a “high probability” that death will result.

- Both of these definitions are not interchangeable and equivalent

Front 89

The “Res Gestae” requirement of the Felony Murder Rule:

Back 89

The Felony & Homicide must be close in TIME & DISTANCE

-This is a VERY fact specific analysis.

Front 90

The “Res Gestae” requirement of the Felony Murder Rule has (2) parts. What are these?

Back 90

The Res Gestae requirement has (2) Parts.
1.The Felony and Homicide MUST be close in TIME & DISTANCE
a. Cts have extended the time period by holding that a felony mmurder liability continues until the felon= reaches a place of temporary safety
- Note: The Killing can occur after felony but NOT before

2. Must be a CAUSAL CONNECTION b/t felony and homicide
a. Some cts only require a but for causal connection & others require one greater

Front 91

What is the ESCAPE RULE, under the Felony Murder Rule?

Note: This is part of the "Res Gestae" requirement.

Back 91

“Escape rule” > as long as robbers are in flight the perpetration of a felony, the felony does NOT end until a place of temporary safety is reached

Front 92

The Continuous Transaction Test under the Felony Murder Rule:

Note: This is part of the "Res Gestae" requirement.

Back 92

“Continuous Transaction Test” : The homicide is committed in the perpetration of the felony if the killing and the felony are parts of one continuous transaction.

Front 93

Res Gestae Requires that:

Back 93

The felony-murder statute applies where the killing is so closely related to the felony in TIME, PLACE, & CAUSAL connection as to make it a part of the same criminal enterprise
**** Death MUST be a CONSEQUENCE of felony and NOT a coincidence

Front 94

Res Gestae Causation Requirement:

Back 94

- CAUSATION requirement is that the homicide stems from the commission of the felony

- Malice from the felony attaches to whatever else the felon does!

- But he MUST be acting in furtherance of the felonious undertaking

- 1st) Only acts causing death which are committed by those involved in the felony can be the basis for conviction

- 2nd) The act causing death must result from some effort to further the felony before malice can be imputed to that act

- 3rd) There must be some act attributable to the felons which causes death (need to be DIRECTLY related)

- Death must be directly related in time, place, and causal connection to the commission of the felony; the felony or acts in furtherance thereof must contribute to cause the death to constitute a “killing” w/in the felony murder statute

- CAUSATION CONNECTION REQUIREMENT (The Act(s) causing the death must have been Directly calculated to further the felony or necessitated by its commission.)
**Need more then Just “BUT FOR”**

Front 95

The Merger Doctrine under the Felony Murder Rule:

Back 95

Note: The Merger Doctrine is only applicable if there was a “single course of conduct with a single purpose

- This Limiting rule requires that the Felony must be INDEPENDENT of the act, which caused death

Front 96

When is the Merger Doctrine under the Felony Murder Rule Applicable?

Back 96

- The Felony Murder Doctrine may nevertheless apply if the underlying offense was committed with an “independent felonious purpose”

- The Felony Murder Rule is inapplicable to felonies that are an integral part of and included in fact w/in the homicide

Front 97

The Third Party Killings: The Agency Rule under the Felony Murder Rule:

Back 97

D is NOT guilty of a felony-murder if co-d is killed by an adversary (cop or vic) during the felony

Front 98

The Agency Rule under the Felony Murder Rule Hypo:

- 3 dudes rob a jewelry store and during the robbery one of the D’s is shot and killed by a victim. does the Felony Murder Rule Apply?

Back 98

- MAJORITY > FMR does not extend to a killing if directly attributable to someone other then the D(s)

- MINORITY > attached liability under the FMR for any death resulting from unlawful activity

- Ct. follows the MAJ. Rule and strikes the conviction & sentencing of the D.

- CONCURRACE > (in result only)Argues that statute holds the criminal liable for ANY killing that ensues during the commission of a felony even if not committed by the felon. Felon should at least be convicted of manslaughter

- The only EXCEPTION that should be recognized if the death is of a co-felon

Front 99

What is the Provocative Act Murder?

Note: This is under the Agency Rule limitation.

Back 99

“Provocative Act Murder”

- When D or accomplice commits a provocative act and a victim/police officer kills in reasonable response to that act, the D can be found guilty of Murder.

- No violation of “Agency rule” b/c it is a mere expansion of the “ gun battle rule” which holds that an actor who initiates a gun battle w/ law enforcement can be held guilty of 2nd degree murder under the theory of “depraved heart “

Front 100

What is the Misdemeanor Manslaughter Doctrine?

Back 100

- Under this doctrine a homicide that occurs during the commission of a misdemeanor constitutes involuntary manslaughter

Front 101

What are the LIMITATIONS imposed of the Misdemeanor Manslaughter Doctrine?

Back 101

- Some Jurisdictions only apply the doctrine to misdemeanors that are malum in se (EVIL IN and OF ITSELF)

a. In these jurisdictions: a Malum Prohibitum offense ( act or omission that does not carry any particular moral opprobrium) cannot serve as a trigger for MM Manslaughter conviction

- Some states do not apply the merger rule, but DO apply the inherently dangerous restriction, HOLDING, that the underlying MM must be inherently dangerous to life or safety.

- Some states will not apply the doctrine is the underlying crime= strict liability

- Some other states place no limit on the typoe of act that can serve as the underlying MM

- Other places require that the MM be the Actual and Proximate cause of death

- Other states do not require any casual relationship between the commission of the MM and the death

Front 102

What is FL’s application of the Misdemeanor Manslaughter rule?

Back 102

- FL courts use the FORSEEABLILITY element to prove causation.

- However in this case the court held that it cannot be said to be foreseeable that the death of the victim was foreseeable by the D’s act of petty theft (stealing from a church)

- MM Manslaughter rule is that an unintended homicide which occurs during the commission of an unlawful act not amounting to a felony constitutes the crime of Involuntary manslaughter. AKA “ Unlawful Act Manslaughter”

Front 103

Theft Offenses:

Back 103

1. Larceny;
2. Larceny by Trick;
3. Embezzlement; and
4. False pretenses.

Front 104

What are the Elements of Larceny?

Back 104

1. The trespassory “taking” & “carrying away” of property
a. Actus Reus: trespassory taking and carrying away of another’s shit.

2. From the possession of another

3. With the Specific Intent to permanently deprive the owner of it (Mens rea)

Front 105

Element (1) of Larceny Defined:

The trespassory “taking” & “carrying away” of property

Back 105

1.The Taking must be “trespassory”
- Taking must be trespassory- actor does not have the right to use the property.
- Taking= trespassory when:
- Actor takes possession of property without the possessors consent or other lawful justification.
- EX: If I borrow a laptop and after a few days decide to keep it = NOT Larceny b/c the intent to deprive and initial taking did not occur at the same time.

2. The “Asportation” or” Carrying Away” Requirement
- “Carrying Away” > is the ASPORTATION = control over and some movement of the item contrary to the possession of the owner no matter how slight
- EX: If I take a laptop then put it back b/c I realize ppl are watching me then I have committed LARCENY

Front 106

What is the "mens rea" for Larceny:

Note: Requires Specific Intent

Back 106

3. Mens Rea: Specific Intent to Permanently Deprive

- One must have Specific Intent to permanently deprive another of property ( intend to steal property.

- NOTE: if an actor takes another’s personal property believing he owns it or has a right to possess it, he is not guilty of larceny because he lacks the specific intent to steal.
- This is true even if he unreasonably and mistakenly believes he has a claim of right to the property.

Front 107

Larceny Requires CONCURRENCE:

Back 107

- In order for taking of personal property to = larceny, must also be CONCURRENCE between Mens Rea ( intent to steal) + Actus Reus (Asportation & Taking)

Front 108

Larceny by Trick:

(Constructive Possession & Custody)

Back 108

1. Obtaining something through deceit; and

2. Takes custody with the specific intent to permanently deprive the owner, thus violating the owners constructive possession.

Front 109

What is the Distinction Between “custody” and “Possession”:

(This distinction is required for Larceny by Trick)

Back 109

- Possession: if initially you are in LAWFUL possession of another’s property
- A person has possession of peoperty whenhe has sufficient control over it t use in a reasonably unrestricted manner.

- Custody: A person has custody of property if he has physical control over it, but his right to use it is substantially restricted by the person in constructive possession of the property.

Front 110

Examples of “custody” and “Possession” with regards to Larceny by Trick:

Back 110

- An employer or principal retains “constructive possession” of property when she entrusts it to an employee or agent who only has “custody”
- Therefore when an Employee or Agent obtains custody of a thing through deceit, and takes custody w/ the specific intent to permanently deprive the owner of it, they violate the owners ( constructive) possession and commit a trespassory taking and thus Larceny by Trick.

- Where the owner gives consent to a temporary possession or a possession for a limited purpose, the expiration of that qualification creates constructive revetment of possession in the true owner
- EX: When a D has been given permission to drive a car and they keep it longer than the time consented to by the owner, they have committed Larceny.

Front 111

“Constructive Possession” and “Custody” are said to occur in (3) Situations UNDER MODERN LAW:

Back 111

1. When a principal or employer delivers property to an agent or employee to use, keep, make a delivery for the principal

2. When the owner of property loses it or mislays it and someone else finds it; and

3. A property owner delivers the property to another person as part of a transaction to be completed in the owners presence

- In any of these situations if a person takes and carries away the property w/ the intent to permanently deprive the owner = LARCENY ( because in this situation, the owner retained constructive possession at all times)

Front 112

What is the “Breaking Bulk Doctrine” (for Larceny)

Back 112

at COMMON LAW > Larceny was NOT a crime against property but rather against “the kings peace”
- The harm to be avoided was the “disturbance of peace”

“Breaking Bulk” Doctrine (1943):
- A carrier who breaks into the package he has been asked to deliver and steals the contents is charged with Larceny under this doctrine.

Front 113

What are the elements of MODERN LAW EMBEZLEMENT?

Back 113

1. The intentional conversion of;

2. The property of another;

3. By someone who is already in lawful possession

Front 114

What is the difference between LARCENY BY TRICK & EMBEZZLEMENT?

Back 114

- Under “Larceny by Trick,” the D’s initial taking is achieved by deceit and is thus considered to never to constitute possession (employment cases give prosecutors trouble in distinguishing the 2)

- Whereas in “Embezzlement” the D receives lawful possession of the property.

- The difference b/t these 2 crimes can be the difference b/t a conviction & an acquittal
- Case where bank teller stole from another tellers drawer (not her own) court found theft to be embezzlement NOT larceny b/c of the employees “position of trust”
- Which extended beyond the confines of her own drawer to the entire teller line.

Front 115

A person is guilty of False Pretenses if:

Back 115

A person is guilty of False Pretenses if they Knowingly and designedly by calse pretense obtained title to property from another.

Front 116

Elements of False Pretenses under MODERN LAW

Back 116

1. A false statement of fact that
2. Causes the victim
3. To pass the to the defendant
4. (D must) Know the statement is false
5. Thereby intent to defraud the victim

Front 117

What is the difference between LARCENY & FALSE PRETENSES?

Back 117

- Distinguishing Larceny from the crime of “FP” one needs to determine whether title passed to the thief.

- IN one case a guy took a jeep from a dealer ship on a test drive (left his truck abtained by fraud at the dealership) and never returned the truck. The court found the crime to be larceny b/c no title passed

- Where a thief fraudulently obtains consumer goods in a retail transaction the elements of False Pretenses are satisfied

- CURRENCY> Typically passes when possession is transferred
- But it may be different where conditions are placed on the cash or if the cash is used for security purposes.
- In such cases the line b/t Larceny and FP depends on what the D said or thought at the time of the crime.

Front 118

What are Consolidates Theft Statutes?

Back 118

- MOST Jurisdictions now the three traditional theft crimes into one crime of THEFT (by statute)

- Thus prosecutors don’t have to risk their case getting dismissed if they charge the D with the wrong crime.

Front 119

Aggravated Theft:

Back 119

1. Burglary;
2. Extortion; and
3. Robbery.

Front 120

Burglary at Common Law:

Back 120

“Breaking & entering of a dwelling house at night with an INTENT to commit a feony therein”

- Implemented to protect the seuirty of the hoe as we as the person w/in the home.

- Activity outside the external boundaries of a dwelling, no matter how felonious, was Not burglary at CL.

Front 121

Burglary at Modern Law:

Back 121

MANY states STAUTES only have 3 elements (they have eliminated BREAKING from their req.’s)

1. Unlawful Entry
2. Of a structure
3. With the intent to commit a crime

NOTE:
- The entry must be unauthorized and this must determined as a distinct element of the offense separate and apart form the intent to steal.

- Not every time you have a theft in your home is there a burglary. What if your cleaning lady jacks your shit.. Not sure if it would be larceny because dunno her intent and whether or not she intended to deprive me of my shit when she walked in, but we did have asportation.

Front 122

At what point must the Defendant form the intent to commit the crime (for BURGLARY)

Back 122

- Before entering the structure has to be concurrence between actus reus and mens rea)

Front 123

At Common Law what was a complete defense to a Burglary?

Back 123

- CONSENT to enter was a complete defense to a burgulary prosecution.

ALSO NOTE:
- A mere entry upon the dwelling of another in the nighttime w/ intent to commit a felon therein was insufficient to constitute the CL crime of burglary.
- Thus if a guest stole something but a lawful possessor invited them into the dwelling NO BURGLARY had been committed

- “BREAKING” (+ Unconsented ENTRY)
- The actual or constructive use of some force against a part of building in effectuating the unconsented entry.

Front 124

MODEL PENAL CODE §401 (4 elements) include “BREAKING”
ELEMENTS of BURGLARY (FORCE aspect Eliminated)

Back 124

1. Entry (unauthorized);
a.Must be determined as a distinct element apart from intent to steal

2. Of a structure;

3. With the knowledge that the entry is not licensed; AND

4. With the intent to commit a crime w/in the structure

** NOTE**:
- WHERE a STATUTE requires a “TRESSPASSORY ENTRY,” the LAWFUL POSSESSORS CONSENT = a complete defense

Front 125

Extortion at Common Law:

Back 125

Extortion:
- Was defined as a crime committed by an officer of the law who under cover or color of his office unlawfully takes money or thing of vaue that is not due to him (or takes more than is due) or before it is due. (No demand req.) taking constituted a crime.

- No proof of fear, threat or duress was required.

Front 126

Extortion under the Model Penal Code:

Back 126

A person is guilty of theft if he purposely obtains property of another by threatening to:

1. Inflict bodily injury on anyone or commit any other criminal offense; or

2. Accuse anyone of a criminal offense; or

3. Expose any secret tending to subject any person to hatred, contempt or ridicule, or to impair his credit or business repute; or

4. Take or withhold action as an official, or cause an official to take or withhold action; or

5. Bring about or continue a strike, boycott or other collective unofficial action, if the property is not demanded or received for the benefit of the group in whose interest the actor purports to act; or

6. Testify or provide information or withhold testimony or information with respect to another's legal claim or defense; or

7. Inflict any other harm which would not benefit the actor.

Front 127

ELEMENTS of ROBBERY

Hint: Larceny + Force

Back 127

ELEMENTS of ROBBERY (Conjunctive Test)

1. Felonious Intent;

2. Force or putting in fear as a means of effectuating the intent; and

3. By that means taking and carrying away the property of anther from his person in his presence.

- The Victim has to be in the presence. Force/fear in presence of the vic to induce them to give up their shit.

Front 128

Force or Fear defined with regards to Robbery:

Back 128

FORCE:
- If force is relied on it MUST be the force by which another is deprived of and the other gains possession of the property

FEAR:
- If fear is relied on it must be fear under duress of which the owner parts possession
- If the court charged the D with Grand Larceny they would have been successful on their charge b/c statute holding that the ATTEMPT will convict the D of a lesser included offense.

Front 129

Robbery under the Model Penal Code is?

Back 129

“The felonious taking of personal property in the possession of another, from his personor immediate presence, and against his will, accomplished by means of force or fear.”

Front 130

Elements if Robbery under the Model Penal Code:

Back 130

1. The felonious taking of personal property
2. In the possession of another,
3. from his person or immediate presence, and
4. Against his will,
5.Accomplished by means of force or fear.

Front 131

ROBBERY is essentially a crime with (2) Aggravating factors. What are these?

Back 131

1. A TAKING from the victims person or immediate presence...

i. Gaining possession of the victims property; and
- Immediate Presence>
- So within his reach, inspection observation or control, that he could, if not overcome by violence or prevented by fear, retain possession of it.

ii. Carrying it away (Asportation phase)

2. Accomplished by the use of force or fear
- The victims presence after taking is in progress is sufficient to establish the immediate presence element of a robbery charge
- Even if force is only used to retain or escape w/ it.
- Elements can be est. after the D has gained possession of the property

Front 132

Where is the line between THEFT and ROBBERY?

Back 132

Example:
- purse snatching where strap is broken but victim in not physically injured…)
****Robbery of theft?****

- Court held that it was ROBBERY and the distinguishing feature is the LEVEL OF FORCE>
- Whether more force than was necessary to remove the property from the victim was used, or force enough to overcome the victims resistance

Front 133

Criminal Law DEFENSES are divided into 2 categories. What are these?

Back 133

1. Case in Chief Defense: (Unconsciousness and Mistakes); and

2. Affirmative Defenses:

Front 134

What is a case in Chief Defense?

Back 134

Case in Chief Defense: (Unconsciousness and Mistakes)

- Def argues that Prosecutor has failed to meet AT LEAST ONE ELEMENT of a crime Beyond a reasonable doubt > (Standard in Crim law)

- Failure of proof ( no prima facie evidence) One or more elements missing

- If def can raises a reasonable doubt to the existence of one of the elements the he gets acquitted

Front 135

What are Affirmative Defenses?

Back 135

Affirmative Defenses:

- Atty Agrees that the gov’t has met is burden of proof re: the case in chief but argues that the Def nonetheless should be acquitted for some other reason.

- The Standard of Proof to successfully bring an Affirmative Defense varies from juris to juris

- Typically Def must convince the JURY by a preponderance of the evidence that the necessary elements of the Affirmative Defense exist

Front 136

There are (2) tupes of Affirmative Defenses:

Back 136

1. JUSTIFICATION DEFENSES; and
2. EXCUSE DEFENSES

Front 137

What are Justification Defenses?

Back 137

- JUSTIFICATION DEFENSES> Focuses on the CORRECTNESS/JUSTNESS of D’s action. ( I am law abiding when I did this)

- Def claims he did the right thing or took the most appropriate acting under the circumstances
EXAMPLE:
- SELF-DEFENSE> Justification
- Did what other people in society would have done under the circumstances (J defenses are derived from a social consensus)

Front 138

What are Excuse Defenses?

Back 138

- EXCUSE DEFENSES> Focus on the D’s CULPABILITY about whether he is blame worthy ( don’t treat me the same as all others, I did it because I had to)

- The D’s acts is presumed to have been wrongful, but the D asks us to excuse him for some other reason. (Excuse Defenses are derived from cultural/moral intuitions)
EXAMPLE:
- INSANITY> Excuse Defense
- On the basis that his mental condition prevented him from being able to control self (or don’t know the difference b/t right and wrong)

Front 139

Defenses at Common Law:

Back 139

COMMON LAW:

- Justification> result = complete Acquittal.

- Excuse> result = mitigation of death penalty charge

Front 140

Defenses at Modern Law:

Back 140

MODERN LAW:

- Both Justification and Excuse Defenses lead to a complete AQUITALL

Front 141

Defense in Accomplice Liability:

Back 141

ACCOMPLICE LIABILITY: Where Justification and Excuse Distinction is still valid

- If JUSTIFIED then D and all his accomplices are presumed to NOT have committed a crime

- If EXCUSED a D’s accomplices may still be found guilty of a crime> (personal to the acator) so

Front 142

Justification Defenses:

Back 142

1. Self- Defense (BWS falls here)
2. Imperfect Self- Defense
3. Defense of Others
4. Defense of Habitation
5. Defense of Property
6. Necessity

Front 143

Excuse Defenses:

Back 143

1. Duress
2. Intoxication
3. Insanity
4. Diminished Capacity
5. Infancy

Front 144

Elements of Self-Defense:

Back 144

I. If D reasonably believes that he/she is threatened with an imminent threat of unlawful force

II. D must also HONESTLY and REASONABLY believe that the force he/she uses is BOTH
1. Necessary to repel the threat.

2. Proportional to the threat
- (Knife vs Gun) = OK b/c BOTH = Deadly Weapons
- (Gun vs Watergun) NOT OK> (unless D can prove he was H&R threatened)
- (KID vs. MAN) No need to harm kid if you can harm him safely

3. In addition D MUST NOT be INITIAL AGGRESSOR

4. Test is OBJECTIVE (must be objectively reasonable)
**- Does the person have to be correct about their assumption?
****- NO (i.e. Say gun was NOT loaded)

**- Even if he was mistaken as long as the decision to defend himself was REAONBLE then = Acquitted
****- Objective (reasonable person Std)

Front 145

Traditional Notions of SELF-DEFENSE Do NOT apply when there is...

Back 145

1. A history of abuse;

2. Difference is size and strength;

3. Wife acts in a momentary Lull and not in a conflict b;

4. But also MUST be IMMINENT danger to wife.

Front 146

What does the court look at in Battered Woman Syndrome Case?

Back 146

- WHETHER THE DEFENDANTS (WIVES) BELIEF WAS REASONBLE IN LIGHT OF ALL THE FACTS AND CIRCUMSTANCES
- MOST COURTS allow expert testimony on “battered woman’s syndrome” to prove the reasonableness of the defendants belief she was in imminent danger
- Experts explain the woman “learned helplessness “ keeps the battered woman in the relationship .
- And although the threat of losing her life doesn’t seem imminent to her it is!
- When a person believes they must KILL or BE KILLED it’s a question for the jury as to whether the threat is IMMINENT!
- BATTERED WOMAN > Someone in an intimate relationship w/ a man who repeatedly subjects her to physical &/or psychological abuse.
- “Repeatedly” = More than onece
- “Abusive” = Any of the 6 categories of behavior (from life threatening violence to extreme verbal harassment”
- Derogatory comments w/ Negative value judgments.

- CRITICS:
- Assert the name Battered Woman Syndrome means that only woman can fall into this category which is

Front 147

Self-Defense under the Model Penal Code:

Back 147

1. When 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 Self-Defense
- Can't use to resist against when you know it is a police officer, although arrest is unlawful
- Actor provoked the force himself
- Actor knows he can avoid danger by retreating
- Actor does not have to retreat in home or place of work

Front 148

Elements of Battered Woman's Syndrome:

Back 148

- Abuse, which includes at least one of the following: physical, emotional, sexu.al, familial, and property

- Systematic pattern of domination and control that the batterer exerts over his victim.
****Maybe imposition of rules that his V must follow or be punished for violating.

- Hiding, denying and minimizing the abuse (coping strategies women use to reduce the impact of the abuse)

Front 149

Imperfect Self-Defense under Common Law:

Back 149

- If you use deadly force and the victim dies then you will be convicted of murder and have NO valid self defense claim

- HOWEVER in SOME STATES, the crime may be mitigated from murder to voulantary manslaughter using the doctrine of IMPERFECT SELF-DEFENSE

Front 150

Imperfect Self-Defense under the Model Penal Code:

Back 150

1. If a person is wrong about the amount of force necessary to repel the imminent threat against them they may claim IMPERFECT SELF-DEFENSE

2. A crime which requires proof of recklessness or negligence for the mental state/ Mens Rea

- Provides that:
- When the actor seeking an affirmative defense for the use of force is reckless or negligent in having a belief about the necessity of that force under the circumstances,
(OR)
- When the actor is reckless or negligent in acquiring or failing to acquire material knowledge concerning the justifiability of her use of force, he loses any justification as against prosecutions based on recklessness or negligence

Front 151

Elements of Defense of Others under Common Law:

Back 151

It is a justification defense used when a person uses force against another person to defend a third person he thinks is in imminent danger of unlawful attack

Elements:
1. A triggering event – a third person under imminent unlawful attack

2. A necessity requirement

3. A proportionality requirement – deadly force may only be used to protect the 3rd party from death or grievous bodily injury

4. D honestly and reasonably believes the force he used was necessary to protect a third person from an imminent unlawful attack.

Front 152

Under Common Law, Defense of Others has (2) limitations. What are these?

Back 152

- Act-at-Peril + Status relationship Limitation:

1. Permitted the use of force in defense of a third person only if the D was correct about the 3rd person’s ability to use force in self-defense

2. (&) there had to be a particular status relationship w/ the person being protected

HOWEVER, MOST JURISDICTION HAVE DONT AWYA WITH BOTH LIMITATIONS!

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Elements of Defense of Others under the Model Penal Code:

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Justifiable when:
1. Actor would be justified under self defense to protect himself against injury he believes to be threatened to the person whom he seeks to protect and

2. Under the circumstances as the actor believes them to be, the person whom he seeks to protect would be justified in such protective force

3. Actor believes intervention is necessary

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Defense of Habitations under Common Law:

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1. Unlawful and forcible entry into a residence

2. Entry must be made by someone who is not a member of the family or the household

3. The residential occupant must have used deadly force against the victim within the residence

4. The residential occupant must have had knowledge of the unlawful and forcible entry

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Jurisdictional Splits about Defense of Habitation:

Back 155

COMMON LAW:
- Allowed an occupant of a dwelling to use ANY FORCE NECESSARY, including deadly force, if he reasonably believed the force was necessary to prevent imminent unlawful entry

SOME JURISDICTIONS:
- Follow the COMMON LAW (+) the intruder must also intend to commit a felony or cause injury to the occupant or another occupant of the dwelling

OTHER JURISDICTIONS:
- Also follow the COMMON LAW (+) the intruder intends to commit a forcible felony or kill or cause grievous bodily injury to the occupant or another occupant of the dwelling
- In these jurisdictions the defense of habitation can be described as a kind of “accelerated” self-defense or defense of others

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What is the "General Rule" regarding Defense of Property?

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One is NOT allowed to use deadly force in defense of property

- Defense of property = Defending one property

Defese of Habitation is different because under:
- Defense of Habitation = Protecting one self

NOTE:
- Where the character and manner of [a] burglary [does] not reasonably create a fear of great bodily harm [or death], there is no cause for exaction of human life."

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Common Law regarding the use of "deadly force" in both the prevention and detention of felons:

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- Any force including “deadly force” is permitted in both the prevention and detention of felons.
- However in some jurisdictions the pricelage to use “deadly force” against a fleeing felon was limited by the ”Act-at-Peril” rule.

-”Act-at-Peril” Limited the use of deadly force against a fleeing felon if the person killed or injured was a innocent bystander

HOWEVER, the MODERN Common Law, limits the use of "deadly force" to "dangerous felonies"

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Model Penal Code regarding the use of "deadly force" in both the prevention and detention of felons:

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MPC: The use of deadly force to prevent the burglary of unoccupied premises is not justified under MPC
- Deadly force is also not permitted to prevent an escape from arrest

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Common Law use of force to resist an unlawful arrest:

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COMMON LAW> permits citizens to use reasonable force (non-deadly) to resist unlawful arrests
- Such as arrests based on less then probable cause & in which officers use excessive force
- The use of deadly force to detain non-violent suspects by the police is forbidden
- In some juris. Where the law is not modified Private citizens are allowed to use greater force against suspected felons then police officers

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What is the defense of Necessity?

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- General Principle behind NECESSITY is that the greater good is served by breaking the law rather than obeying it.

- Therefore NECESSITY provides an Affirmative defense to the actor in situations in which from an OBJECTIVE perspective the harm caused by breaking the law is less than the harm avoided by the action.

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Necessity under Common Law:

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COMMON LAW> a defendant claiming necessity may be acquitted if:

1. The harm the D was seeking to avoid was greater than the harm the D would cause by breaking the law (balance of harms inquiry)

2. The legislature has NOT determined the matter in a way that goes against the D (does statute preclude defense?)

3. Causal connection b/t the D’s illegal act and the harm D was seeking to avoid & reasonable for D to believe his illegal conduct would abate threatened harm.

4. No legal alternative was available to the defendant

5. D was seeking to avoid a clear and imminent danger (&)

6. D was not at fault for creating the dangerous situation

****At Common Law, Necessity CANNOT BE a DEFENSE to HOMICIDE

****Test is CONJUNCTIVE (All of the elements must be met)

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Necessity under the Model Penal Code:

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MODEL PENAL CODE § 3.02
Provides that “conduct that the actor believes to be necessary to avoid harm or evil to himself or others is justifiable provided that”:

A. The harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged (&)

B. Neither the Code nor the law defining the offense provides exceptions or defenses dealing with the specific situation involved; (&)

C. A legislative purpose to exclude the justification claimed does not otherwise plainly appear

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DIFFERENCES between THE MPC & COMMON LAW with regards to Necessity:

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1. MPC has NO Imminence requirement!

2. CL has no necessity defense to Homicide under the theory that it can never constitute the greater good to kill an innocent person (Dudley)

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(6) Elements are needed to establish Necessity... Necessity is a question of Fact!

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1. D broke the law to prevent a significant evil
2. No adequate alternative
3. Without creating a greater danger then avoided
4. With a good-faith belief in the necessity
5. Belief was objectively reasonable
6. No substantial contribution to the emergency

- Sleep is a NECESSITTY (no statute necessary to assert defense)

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What is Duress?

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- Affirmative defense where defendant claims that she was threatened by another person with physical (either them or a 3rd person) unless they committed the crime.

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Elements of Duress

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1. The D acted in response to an imminent threat of death r serious bodily harm

2. The D had well-grounded well-grounded (or reasonble) fear that the threat would be carried out unless she committed a specficied crime

3. The D has NO reaosble opotunity to escape the threatened harm
-4th element is sometime required

4. D must submit to the proper authorities after attaining a position of safety

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What is the key diferrence between Necessity and Duress?

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Key Difference b/t Necessity and Duress:
- A response to a threat from a specific individual to commit he acts that constitute the crime
- Conduct involves a response to a dire situation

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Duress under Common Law:

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COMMON LAW:
- DURESS was limites to ases which the D or members of her family were threarned
- DURESS can NEVER be a defense to murder!

MODERN: (that follows the common law)
- A threat to kil or seriously injure the D or any other perso to satisfy one element

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Duress under the Model Penal Code:

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- DURESS excuses criminal conduct that was coerced by the use of, or threat t use, unawfuk force aganst the actor’s person or the person of another that a “person of reasonable firmness in his situation would have been unabe to resist
- Therefore UNLIKE COMMON LAW duress is NOT limited to situations involving threats of death or reat bodily harm, Nor is there an imminence rewuirement.
- DURESS as a defense to homicide = OK
- IMMINENCE (MPC)> Whether a person of reasonable firmness would have been abe to resist it

- MPC §2.09 allows a D to claim DURESS for a Murder charge (intentional killings not killings by another)

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In DURESS, elements of case of crucial!

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IMMEDIACY> Threat must be present,, immediate, or impending
- A veiled threat of future unspecified harm will NOT satisfy requirement
- Initial threats are NOT imminent b/c they were vconditioned on an act in the future and didn’t pace D or family in immediate danger

EXCAPABILTY> No reasonable opportunity to escape
- B/c Taxi driver was NOT physically restrained at the time that he swallowed the balloons; he could have sought help from the police or fled.
- Where there was a reasonable legal alternative to violating the law, a chance to refuse to do the criminal act and also to avoid the threatened danger, the defense will fail.
-Duress is permitted as a defense ONLY when a criminal act was committed b/c there was no other opportunity to avoid the threatened danger

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Elements of Compulsion:

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ELEMENTS OF COMPULSION (SUBJECTVE) I.e. Person holding you hostage is one that is feared
1. Coercion or Duress must be PRESENT,
2. IMMINENT(&)
3. IMPENDING (&)
4. Of such a nature as to induce a WELL-GROUNDED APPREHENSION OF DEATH OR BODILY HARM if the act is not done; (&)
5. CONTINIOUS> No reasonable opportunity to escape w/out committing the crime
a. It cannot be invoked as an excuse by one who had a reasonable opportunity to avoid doing the act w/out undue exposure to death or serious bodily harm

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There are (2) types of Intoxication:

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1. Voluntary Intoxication; and
2. Involuntary Intoxication

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Voluntary Intoxication under Common Law:

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VOLUNTARY INTOXICATION Depends on if D was charged w/ a SPECIFIC of GENERAL intent crime.

- If GENERAL INTENT> NO INTOXICATION DEFENSE

- If SPECIFIC INTENT> VOLUNTARY DEFENSE OK

- To be AQUITTED Def. must show that he did NOT have the SPECIFIC INTENT required for the commission of the crime.

CL – intoxication will never be considered to negate the existence recklessness

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Involuntary Intoxication under Common Law:

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INVOLUNTARY INTOXICATION Treated different by jurisdictions that follow the common law:

- SOME jurisdictions allow evidence of Involuntary Intoxication to negate both SPECIFIC & GENERAL INTENT

- MOST jurisdictions Involuntary Intoxication can be the basis for a temporally insanity claim

- SOME hold that this II defense is the only one available (must cause D to go temporarily insane)
- This types = a AFFIRMATIVE DEFENSE
- Do we need an expert to prove this?

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Depraved Heart Murrder under the Model Penal Code and Intoxication:

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MPC §125.25(2): Depraved Mind Murder
a. Recklessness
- Conscious disregard of a substantial & unjustifiable risk

b. Indifference to human life
- EX: Firing a gun into a crowded bar

- STANDARD>
- Objective assessment of the degree of risk presented by D’s reckless conduct

- INTOXICATION evidence should be excluded whenever recklessness is an element of the offense**

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Depraved Heart Murrder under Comman Law and Intoxication:

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COMMON LAW: INTOXICATION is viewed as an aggravating circumstance which heightened moral culpability

- CL viewed the decision to drink to excess, as independent to culpable act.

- Precludes one from claiming that b/c of their intoxication they could not have possessed the requisite mens rea to commit the crime.

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Intoxiccation under the Model Penal Code:

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MPC 2.08 – General Rule – intoxication of the actor is not a defense unless it negatives an element of the offense

- When recklessness established an element of the offense, if the actor, due to SELF INDUCED intoxication, is unaware of a risk of which he would have been aware had he sober, such awareness if immaterial.

- Intoxication is not a mental disease

- Intoxication that is NOT SELF INDUCED or 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 or to conform his conduct to the requirements of law.

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INVOLUANTARY INTOXICATION Is Recognized in other jurisdictions under (4) situations:

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1. Intoxication was caused by the fault of another
- EX: Through force, duress, or fraud

2. Intoxication was caused by an innocent mistake on the part of the Def.
- EX: Took acid gel tab w/ a reasonable belief of it being a lawful drug (i.e. aspirin)

3. Where a Def unknowingly suffers from a physiological or psychological
- Referred to as “pathological intoxication”

4. Where unexpected intoxication results from a medically prescribed drug

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Insanity in General:

Back 179

- D’s Mental competency is a possible issue at three stages of the criminal proceeding:

1. Before Trial> Can argue that D is incompetent to stand trial
- Whether the D is capable of understanding the proceeding and assisting his counsel in the Gov’t forcible administer presenting a defense

2. Time Act Committed> Can argue not guilty by reason of insanity
- Tests examine the D’s ental capacity at the time he or she committee the criminal act

3. Prior to Execution  (on death row)
- The execution of a mentally ill person = Cruel and Unusual Punishment (8th Amendment

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Justifications for the Insanity defense:

Back 180

1. Person is medically incapable of forming what is known as criminal intent.
a. Thus the person doesn’t know what they are doing and therefore punishing them would not serve legitimate goal of punishment.

2. Covers people who cannot tell the difference at the time between right and wrong and cannot conform their actions to what is right

3. Something a person claiming insanity can do but a person in heat of passion cannot: Medical diagnosis! ( mental illness)

4. Also have multiple jurisdictional approach- so when reading cases need to check jurisdiction

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Can the Government forcibly administer anti-psychotic drugs to render a mentally ill defendant competent to stand trial?

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YES if> The treatment is:

1. Medically appropriate

2. Substantially unikley to have side effects that may undermine the trials fairness; AND

3. Necessary to significantly further important governmental interests (Intermediate Scrutiny)
- This issue has been addressed by the Sup. Ct. Sell v. united States (2003).

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Insanity: MODEL PENAL CODE §4.01 The “AMERCAN LAW INSTITUTE TEST”

Back 182

“A person is not responsible for criminal conduct if at the time of such conduct as a result of a mental disease or defect he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law.”

- Rule emphasizes that any incapacity s not sufficient to justify avoidance or criminal responsibility but that “TOTAL” INCAPACITY is NECESSARY.

- Expert Testimony will be let in as “expert testimony” but NOT as moral or legal pronouncements

Front 183

Insanity: APPLICATION OF MPC §4.01 The “AMERCAN LAW INSTITUTE TEST”

Back 183

1. Mere recidivism (habitual relapse into crime) or narcotics addiction alone will not justify acquittal!
- “Mental disease or Defect” does NOT include repeated criminal or anti-social conduct.
- There may be exceptions but these will be determined on a case-by-case basis.

2. Security of the community must be the paramount interest
- It would be intolerable if those suffering from a mental disease were to be set free and then continue to pose a threat to life and property.

3. One that is deemed “not guilty by reason of incompetency” is still institutionalized, just in a Mental hospital rather than a Prison (via state commitment procedures, pending congressional action to make uniform procedure).

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Insanity: The Wild Beast Test:

Back 184

(Rex v. Arnold) > If D doesn’t know what he is dong then he is nothing more than a wild beast.

Front 185

Insanity: The Common Law Test (The M' Naghten Test)

Back 185

The nature and quality of act could not be comprehended based on mental illness, but even if he could understand what he was doing, he couldn’t understand that it was wrong based on mental illness.

Front 186

Insanity: The “IRRESISTIBLE IMPULSE TEST”

Back 186

- Doctrine which permits an acquittal on grounds f lack of responsibility when a defendant s found to have been driven by an irresistible impulse to commit his offense

- Ct. finds this test too Narrow and a “misleading implication that a crime impulsively committed must have been perpetrated in a sudden and explosive fit”. (Thus Unduly Restrictive)

Front 187

Insanity: Problems with the M’Naghten Test:

Back 187

- Scope is too narrow (focuses only on the cognitive aspect of the personality)>

- Which in effect creates a serious danger to society welfare (letting criminals out of prison).

- The Test does NOT recognize degrees of incapacity (either the D kows right from wring or doesn’t)

- Expert testimony informs the court whether the accused knew right from wrong, which is not always accurate and extreme difficult to do.

- Whether one is responsible for their actions is a moral legal ?, not medical ?.
- Ct. aso feels that psychiatrists will artificially structure their testimony

- Missing part of test that allows for ppl who know what they are doing but cant stop themselves.

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Insanity: The Mott Rule:

Back 188

The testimony of a professional psychologist or psychiatrist about a D’s mental incapacity owing to mental disease of defect is admissible and could be considered, only for its bearing on the insanity defense; such evidence cannot be considered on the element of Mens Rea, that is, what the State must show about the D’s mental state (intent or understanding) when he performed the act charged against hm.”

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Insanity: The Durham Test – Product Test

Back 189

- A defendant is not criminally responsible if his unlawful act was the product of mental disease or mental defect
- Near impossible problems with causation (not accepted by most courts)

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Insanity under the Model Penal Code:

Back 190

- A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law
- Does not appreciate wrongfulness of conduct OR to conform his conduct to law requirements
- Views mind as unified entity and mental defect can impair functioning
- Does not include a abnormality manifested by repeat offenders
- Adopted in minority of jurisdictions

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Diminished Capacity in General:

Back 191

- Evidence of a mental illness as a way to mitigate or eliminate ones responsibility for the crime
- Incapable of “mature and meaningful reflection”

Front 192

Diminished Capacity under Common Law:

Back 192

A. MENS REA VARIANT: (Case in chief Defense)> because it attacks specifically the Mens Rea (an element of the crime)
- A defendant who can show that he was suffering from a mental disease or defect not amounting to insanity at the time he committed his crime and therefore lacked the mental state required for commission of the charged offense will be found NOT GUILTY of the charged offense.

B. PARTIAL RESPONSIBILITY VARIANT:
- Defendant argues that because he has some mental disease not amounting to insanity he or she is less blameworthy than others charged w/ the same offense.
- D can be AQUITTED (or) charged with a LESSER OFFENSE.

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Diminished Capacity under the Model Penal Code:

Back 193

a. Permitting evidence of metal disease or defect to be admitted whenever relevant to prove that the defendant did or did not have a state of mind which is an element of the offense

b. “ TWINKIE DEFENSE” > (Cal.) Murder acquitted to voluntary manslaughter when D had a shrink claim that his blood sugar was too high and thus he was under a “diminished capacity”
- This defense caused riots in the street of CA. and therefore was ABOLISHED

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Infancy under the Model Penal Code:

Back 194

A PERSON SHALL NOT BE TRIED FOR, OR, CONVICTED OF AN OFFENSE IF:

-(a) at the time of the conduct charged to constitute the offense he was less than sixteen years of age , in which case the Juvenile Court shall have exclusive jurisdiction ; or

-(b) at the time of the conduct charged to constitute the offense he was sixteen or seventeen years of age, unless:

(i) the Juvenile Court has no jurisdiction over him, or

(ii) the Juvenile Court has entered an order waiving jurisdiction and consenting to the institution of criminal proceedings against him.

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Infancy under Common Law:

Back 195

- Children under 7: Presumed without criminal capacity

-Between 7-14:
-Rebuttable presumption of criminal incapacity
- By showing of malice or awareness of the wrongfulness of the conduct
- Not conclusive
- May be rebutted by showing accused was of sufficient intelligence to distinguish between right and wrong
- Incapacity diminishes with age

- Age 14: Fully responsible (treated as adults for capacity)

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Complicity in general:

Back 196

An accomplice is one who intentionally assists another person to engage in conduct that constitutes the offense

Front 197

Complicity under Common Law:

Back 197

CL - If the perpetrator is justified, then there is no accomplice liability because there is no crime.

CL- excuses do not transfer from perpetrator to accomplice
A victim accomplice (underage girl in statutory rape) cannot be an accomplice unless there is a legislative exception.

Knowing or reckless facilitation is sufficient to establish complicity in some courts

Substantiality of aid can also create complicity. Complicity may also be established if there is sufficiently substantial benefit to the knowing facilitator.

Types:
- Principal in the 1st degree – Actually engage in the act or omission that constitutes the criminal offence
- Principal in the 2nd degree – incites or abets and is present, either actively or constructively at the time of the crime
- Accessory before the fact – incites or abets but is not present at the time of the crime.
- Accessory after the fact - intentionally assists the principal after the crime.

Actus reus, mens rea and principal’s completion

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Complicity under the Model Penal Code:

Back 198

- MPC - no actual assistance for accomplice liability is necessary. Agreement to aid is enough.

- MPC - accomplice can be convicted even if the perpetrator has not yet been prosecuted, has been convicted of a lesser crime, has been acquitted, or is feigning.
- MPC - does not recognize the natural and probable consequences rule for homicide found in CL. MPC - one who is legally incapable of committing an offense may be accountable for the crime if another person for whom he is legally accountable commits it.

- MPC - knowing facilitation is not enough to establish liability. A victim cannot be an accomplice.

- MPC includes the crime of attempt to aid and abet.

Types:
- Principal – Acting with the requisite mens rea, actually engages in the act or omission that causes the crime, or acts through an irresponsible or innocent agent (Innocent Instrumentality) to commit the offence

- Accomplice – incites or abets with requisite intent before or during the commission of the offense. Incl

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Defenses for Complicity under Common Law:

Back 199

1. Withdrawal:
i. Must take place before the events are unstoppable

2. Inciter:
i. communicate an renunciation of the crime to the perpetrator

3. Abettor:
i. Must render the assistance Defendant gave ineffective

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Defenses for Complicity under the Model Penal Code:

Back 200

1. Withdrawal

2. Wholly depriving his prior assistance of effectiveness,

3. Provide a timely warning of the plan to law enforcement

4. Make an effort to prevent the commission of the offence

Front 201

Conspiracy under Common Law:

Back 201

Actus Reus:
Agreement to commit a criminal act or series of acts, or to accomplish a legal act by unlawful means.
- knowledge may be enough.

Object of Agreement - need only be unlawful / wrongful.

- Nature of the Agreement - need not be written or even express. Can be implied from the action of the actors

- Act Doctrine - no further act is necessary in most jurisdictions.

- Merger - does not merge into an attempt or the completed offense.

Mens Rea:
Specific intent crime with 2 parts:
1. Intent to agree
2. Intent to carry out the object crime.

- Some courts allow conviction if the second mens rea (as to object crime) is merely knowledge.

- Number of Parties Needed - two or more with the requisite mens rea (multilateral theory).

- Punishment - some jurisdictions treat all conspiracies as misdemeanors, usually graded in relation to the target offense.
- CL lets Defendant off if state cannot prove that there was another person with the requisite mens rea

- Pink

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Conspiracy under the Model Penal Code:

Back 202

Actus Reus:
- Agreement to commit a crime; attempt to commit a crime; solicit another to commit an offense; aid another in planning or commission of an offense.
- MPC is unilateral

- Object of Agreement - must be a criminal act.

Nature of Agreement - ?

- Act Doctrine - No overt act is required for serious (1st or 2nd degree) felonies, but required for all other offences.

- Merger - merges unless there are further conspiratorial crimes to be carried out.

Mens Rea:
- purpose to promote or facilitate the object crime.

- Mere knowledge is not usually enough, but can be when combined with a stake in the success of the object crime.

- Number of Parties Needed - one with the requisite mens rea (unilateral theory).

- Punishment - punishment is the same for conspiracy as for the object crime in all cases but 1st degree felonies.

- Pinkerton Rule is rejected - if the conspiracy goes beyond the intended purpose, one is not guilty of any foreseeable crime unless he can be

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Evidence (Hearsay) and Conspiracy:

Back 203

Hearsay evidence may be brought in to prove the conspiracy, but not the substantive offense.

Front 204

Defenses to Conspiracy under Common Law:

Back 204

Abandonment:
Once the offense is completed (once there is agreement) abandonment is not a defense. Can relieve liability for future crime of former conspirators.

Front 205

Defenses to Conspiracy under the Model Penal Code:

Back 205

Abandonment:
- If the conspirator renounces his criminal purpose and prevents the success of the conspiracy under circumstances demonstrating a complete an voluntary renunciation of criminal intent.

Front 206

Incohate/ Attempt under Common Law:

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Mens Rea:
- For the Attempt - Specific intent to commit the acts or cause the resulting target crime.

- For the Target crime - Intent necessary for the target crime (specific or general depending of the offence) For strict liability must only show intent to attempt, no target crime mens rea

- Reckless crimes – Courts generally do not try for attempts of reckless crimes.

- Negligent crimes - Attempt to commit is logically impossible

Actus Reus:
Tests: no definitive Actus Reus test

1. Proximity test – conduct must be physically proximate to the intended crime. Focuses on what remains to be done.

2. Indispensable Elements – Control over all factors in the commission of the crime. Nothing must be left undone

3. Probable desistance - Likelihood that Defendant would cease efforts to commit the crime given the conduct Defendant has already committed.

4. Unequivocal (res ipsa loquitur) – An act amounts to attempt only if it firmly shows the Defendant’s intent to commit the

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Incohate/ Attempt under the Model Penal Code:

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Mens Rea:
- For the attempt – Purposely or knowingly engages in conduct which would constitute the crime if the attendant circumstances were as Defendant believes them to be.

- For the Target crime – Defendant acts with the kind of culpability otherwise required for the commission of the offense.

- Under MPC, Defendant may still be held for the attempt even if the target offense is neither committed nor attempted by Defendant or anyone else.

- However, here too, the mens rea for attempt is often higher than the one required for the target offense. Generally, the required mens rea is purpose.

- MPC does not use general vs. specific intent language.

Actus Reus
1. Must perform a substantial step toward committing the crime.
2. Defendant’s conduct must be corroborative of Defedant's purpose.

*** Attempt is a Felony***

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Defenses to Attempt under Common Law:

Back 208

****Mistake of fact****

***No mistake of law***

- Abandonment:
- Traditionally never a defense. Abandonment is a defense when it is complete and voluntary. Once Defendant's actions have passed the point of being an attempt is not generally a defense.

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Defenses to Attempt under the Model Penal Code:

Back 209

****No mistake of fact****
****No mistake of law****

Abandonment:

Is a defense only if:
- It is fully voluntary and not made because of the difficulty of completing the crime or because of an increased risk of apprehension

- It is a complete abandonment of the plan made under circumstances manifesting a renunciation of criminal purpose, not just a postponement
- Defendant’s conduct is an attempt if it was only prevented by Defendant's mistake of fact.

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Differences between Defenses to Attempt under the Model Penal Code and Common Law:

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Defendant’s conduct is an attempt if it was only prevented by Defendant's mistake of fact.