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231 Cards in this Set

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Jurisdiction and General Matters

Jurisdiction for Criminal Law

1
Unlike the federal gov't, every state has inherent authority by virtue of its "police power" to regulate its internal affairs for the protection or promotion of the health, safety, welfare and morals of its citizens.
Jurisdiction and General Matters

Situs

2
The place where the proscribed act or omission takes place; or the place of the harmful result, if the crime includes a result as a material element.
Jurisdiction and General Matters

Situs of Crime

3
At common law and in those states that have not expanded jurisdiction by statute, only the state in which the situs of the crime is located has jurisdiction over the crime.
Jurisdiction and General Matters

Sources of Criminal Law

4
1. Common Law - one created and enforced by the judiciary in the absence of a statute defining the offense; a majority of states retain common law crimes implicitly or by express "retention statutes"
2. Statutory Crimes - state legis statutes are the primary source of criminal law today; many states have adopted comprehensive criminal codes (TX PC).
3. Modal Penal Code - published by ALI in 1962; has had a great influence on the drafting of many state penal codes and is perhaps teh single most imp source of general criminal law.
Jurisdiction and General Matters

Theories of Punishment

RED SIR

5
1. Retribution
2. Education
3. Deterrence (General)
4. Specific Deterrence
5. Incapacitation
6. Rehabilitation
Jurisdiction and General Matters

Theories of Punishment

Retribution

6
Punishment is imposed to vent society's sense of outrage and need for vengeance.
Jurisdiction and General Matters

Theories of Punishment

Education

7
The publicity attending trial, conviction and punishment of some criminal serves to educate the public to distinguish good and bad conduct and to develop respect for the law.
Jurisdiction and General Matters

Theories of Punishment

Deterrence (General)

8
Punishment may deter persons other than the criminal from committing similar crimes for fear of incurring the same punishment.
Jurisdiction and General Matters

Theories of Punishment

Specific Deterrence

9
Punishment may deter the criminal from committing future offenses.
Jurisdiction and General Matters

Theories of Punishment

Incapacitation

10
While imprisoned, a criminal has fewer opportunities to commit acts causing harm to society.
Jurisdiction and General Matters

Theories of Punishment

Retribution

11
Imprisonment may provide the opportunity to mold or reform the criminal into a person who, upon release, will conform to societal norms.
Jurisdiction and General Matters

Classification of Crimes
12
1. Felonies
2. Malum In Se
3. Malum in Prohibitum
4. Misdeameanors
Jurisdiction and General Matters

Classification of Crimes


Felonies

13
Serious crimes punishable by death or imprisonment exceeding one year.
Jurisdiction and General Matters

Classification of Crimes

Common Law Felonies

14
1. Manslaughter
2. Mayhem
3. Murder
4. Rape
5. Robbery
6. Arson
7. Burglary
8. Larceny
9. Sodomy
Jurisdiction and General Matters

Classification of Crimes


Malum In Se

15
Less serious crimes punishable by fine or imprisonment less than one year.

At common law, all offenses not considered felonies were considered misdemeanors.
Jurisdiction and General Matters

Classification of Crimes


Malum Prohibitum

16
Crimes malum prohibitum are wrong only b/c they are prohibited by legislation.

Ex. Speeding or failing to comply w/the Federal Drug Labeling Act.
Jurisdiction and General Matters

Classification of Crimes


Misdemeanors

17
Less serious crimes punishable by fine or imprisonment less than one year.

At common law, all offenses not considered felonies were considered misdemeanors.
Jurisdiction and General Matters

Merger

Common Law Rule
18
Common Law Rule: If a person engaged in conduct constituting both a felony and a misdemeanor, she could be convicted only of the felony; the misdemeanor would be regarded as merged into the greater felonious offense.

No Merger Among Offenses of the Same Degree - If teh same act or a series of acts that were all part of the same trx constituted several felonies (or several misdemeanors), there was no merger of any of the offenses into any of the others.
Jurisdiction and General Matters

Merger

Current American Rule

19
NO MERGER

Exceptions:
1. Merger of Solicitation of Attempt into Completed Crime - one who solicits to commit a crime cannot be convicted of both the solicitation and the completed crime (if the person solicited does complete it); same thing for attempt
2. Merger of Lessor Included into Greater Offenses - lessor included offesnes merge into greater offenses, in the sense that one place in jeopardy for either offense may not be later charged for the other; nor may be convicted of BOTH the greater and a lessor included offense. (a lesser included offense is one that consists entirely of some, but NOT ALL, elements of the greater crime.
Essential Elements of a Crime

Elements of a Crime

20
1. Actus Reas (voluntary conduct) - a physical act (must be some bodily movement, not merely a thought) or unlawful omission by the def'

2. Mens Rea (guilty mind) - the state of mind or intent of the def' at the time of his act;

3. Concurrence - the physical act and the mental state must exist at the same time; and

4. Harmful Result and Causation - a harmful result caused, both factually and proximately, by the defs' act
Essential Elements of a Crime

Actus Reas

Texas Penal Code

21
TX PC § 6.01(a): a person commits an offense only if he VOLUNTARILY engages in conduct, including an ACT, OMISSION or POSSESSION
Essential Elements of a Crime

Actus Reas

Modal Penal Code

22
MPC § 2.01: requires conduct not a product of unconscious or habitual effort
Essential Elements of a Crime

Actus Reas

Requirement: Voluntary

23
Def's act must result from the CONSCIOUS EXERCISE OF THE WILL, involuntary acts will not be punishable.

Exception - Voluntary acts those which result from teh actor's determination; must not be reflexive or convulsive; and must be performed while the actor is awake and conscious; UNLESS th actor knew or had reason to know she might be rendered unconscious or asleep and still undertook the behavior
Essential Elements of a Crime

Actus Reas

Omission as an "Act"

Texas Penal Code

24
TX PC § 6.01(c) - a person who omits to perform an act does not commit an offense UNLESS (1) a statute provides that the omission is an offense, or
(2) otherwise provides that he a has a duty to perform
Essential Elements of a Crime

Actus Reas

Omission as an "Act"

Modal Penal Code

25
MPC § 2.01(3)(b) - liability for an omission imposed if (1) where the law defining the offense provides for it; or if
(2) the duty to act is otherwise imposed by law
Essential Elements of a Crime

Actus Reas

Omission as an "Act"

Legal Duty to Act Arises From:
SCRAP

26
(S) statute (ex. statute requiring spouses to notify of suspected child abuse)
(C) contract obligating the def' to act (ex. lifeguard who is contractually bound to rescue)
(R) relationship between teh parties was sufficiently close to impose a duty
(A) assumption (voluntary) of care by the def' - once you render aid, he must act w/reasonable care or be liable
(P) Peril (creation of) by the def'
Essential Elements of a Crime

Actus Reas

Omission as an "Act"

Knowledge of Facts Giving Rise to Duty

27
General Rule - the duty to act arises ONLY when the def' is aware of the facts creating the duty to act

Exception - the law will impose a duty to learn the facts (ex. a lifeguard asleep at his post still has the legal duty to discovery a drowning swimmer)
Essential Elements of a Crime

Actus Reas

Omission as an "Act"

Texas Penal Code

Performance Must be Reasonable Possible

28
It must be reasonably possible for the def' to perform the duty or to obtain the assistance of others to perform it for criminal liability to be imposed.
Essential Elements of a Crime

Actus Reas

Possession as an "Act"

General Definition

29
Criminal statutes that penalize the possession of controlled substances generally require that the def' have CONTROL of the item for a long enough period to have an opportunity to terminate possession; def' must be AWARE of his possession of the object but need not be aware of its illegality
Essential Elements of a Crime

Actus Reas

Possession as an "Act"

Texas Penal Code

30
TX PC § 6.01(b): possession is a voluntary act if (1) the possessor KNOWINGLY obtains or receives the thing possessed OR (2) is AWARE of his control of the thing for a sufficient time to permit him to terminate his control
Essential Elements of a Crime

Actus Reas

Possession as an "Act"

Modal Penal Code

31
Only requires that the def' be aware that he is in possession of the substance.
Essential Elements of a Crime

Mens Rea

Definition

32
Normally required to distinguish between inadvertent or accidental acts and acts performed by one w/criminal intent, or a "guilty mind"; not required for some cases (strict liability offenses)
Essential Elements of a Crime

Mens Rea

Specific Intent

33
Def intended not only the doing of an act, but the doing of it with a further intent or objective in mind (in contemplation of some goal beyond the immediate actus reus)

Major Crimes: CAB
(1)conspiracy - intent to agree to commit a crime AND intent to actually carry out the offense;
(2)attempt - intent to attempt the crime AND intent to complete the crime;
(3)burglary - intent to break and enter AND intent to commit a felony once inside

Specific Defenses - Some defenses, such as voluntary intoxication and unreasonable mistake of fact apply only to specific intent crimes
Essential Elements of a Crime

Mens Rea

General Intent

34
Generally, all crimes require an awareness of factors constituting teh crime; a defe must be aware that she is acting in the proscribed way and that any attendant circumstances required by teh crime are present or are likely to exists (ex. battery only requires harmful or offensive contact)

Inference of Intent from Act - intent can be presumed from the circumstances (ie - motive)
Essential Elements of a Crime

Mens Rea

Culpable Mental States:
Texas Penal Code

35
TX PC § 6.02(d): culpable mental states are classified according to relative degrees from highest to lowest (TX PC § 6.03):
1. Intentional
2. Knowing
3. Reckless
4. Criminal Negligence

TX PC § 6.02(b) Unless the statute dispenses w/mental element, in the absence of a mental state, a culpable mental state is required
Essential Elements of a Crime

Mens Rea

Culpable Mental States:
Texas Penal Code - Intentional

36
It is the actor's conscious objective or desire to engage in the conduct or cause the result.
Essential Elements of a Crime

Mens Rea

Culpable Mental States:
Texas Penal Code - Knowing

37
The actor is aware that his conduct is reasonably certain to cause the result.
Essential Elements of a Crime

Mens Rea

Culpable Mental States:
Texas Penal Code - Reckless

38
Actor is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur; risk must be of such a nature and degree that its DISREGARD constitutes a gross deviation from an ordinary standard of case in LSC.
Essential Elements of a Crime

Mens Rea

Culpable Mental States:
Texas Penal Code - Criminal Negligence

39
Actor should be aware of a substantial or unjustifiable risk that the circumstances exist or the result will occur; risk must be such that the FAILURE TO PERCEIVE it constitutes a gross deviation from an ordinary standard of care in LSC.
Essential Elements of a Crime

Mens Rea

Culpable Mental States:
Modal Penal Code

40
Modal Penal Code has abandoned the distinction between specific and general intent; instead proposes 4 categories of mental components of fault:
1. Purposely
2. Knowingly
3. Recklessly
4. Negligence
Essential Elements of a Crime

Mens Rea

Culpable Mental States:
Modal Penal Code: Purposely

41
It is the actor's CONSCIOUS OBJECTIVE to engage in certain conduct or cause a certain result.
41Essential Elements of a Crime

Mens Rea

Culpable Mental States:
Modal Penal Code: Knowingly

42
Person is aware that his conduct is of that nature or that certain circumstances exist and this his conduct will necessarily or very likley cause such a result.
41Essential Elements of a Crime

Mens Rea

Culpable Mental States:
Modal Penal Code: Recklessly

43
CONSCIOUSLY DISREGARDS a substantial or unjustifiable risk that circumstances exist, or that a prohibited result will follow, and this disregard is a GROSS DEVIATION from the standard of care a reasonable person would exercise in the situation.
41Essential Elements of a Crime

Mens Rea

Culpable Mental States:
Modal Penal Code: Negligence
44
Person FAILS TO BE AWARE of a substantial and unjustifiable risk that circumstances exist, or a result will follow, and such failure constitutes a SUBSTANTIAL DEVIATION from the OBJECTIVE standard of care a reasonable person would exercise under the circumstances.
41Essential Elements of a Crime

Mens Rea

Culpable Mental States:
Modal Penal Code: Default State

45
If the definition of the crime does not include a mens rea element, the def' must have acted w/at least recklessness with regard to each material element of the offense.
Essential Elements of a Crime

Mens Rea

Transferred Intent

46
If a def intended a harmful result to a particular person/object, and in trying to effectuate that intent, cause a similar harmful result to another person/object instead, her intent will be TRANSFERRED from the intended victim to the one actually harmed. DOES NOT APPLY TO ATTEMPT.
Essential Elements of a Crime

Mens Rea

Transferred Intent: Defenses

47
Any defenses or mitigating circumstances that the def' could have asserted agst teh intended victim will also transfer in most cases.
Essential Elements of a Crime

Mens Rea

Transferred Intent: Texas Penal Code

48
TX PC § 6.04(b): a person is nevertheless criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated, or risked is that:
(i) a difference offense was committed; or
(ii) a different person or property was injured, harmed or otherwise affected
Essential Elements of a Crime

Mens Rea

Motive v. Intent

49
Motive is the reason of explanation underlying an offense and is generally immaterial to substantive criminal law. Can be very useful for specific intent crimes.
Essential Elements of a Crime

Mens Rea

Strict Liability Offenses

50
Does not require awareness of all the factors constituting the crime; lack a mens rea requirement w/regard to one or some of the elements (prosecution need only prove actus reus)

Ex. statutory rape, traffic & motor vehicle regs, and manufacturing and selling impure food or drugs to the public
Essential Elements of a Crime

Mens Rea

Strict Liability Offenses: Texas Penal Code

51
TX PC § 6.02(c) if the definition of the offense does not prescrible a culpable mental state, but one is nonetheless required under sec.(b), b/c it is not expressly eliminated, intent, knowledge, or recklessness suffices to establish criminal responsibility.

TX limits strict liability crimes to those that are:
(i) punishable by fine only; and
(ii) relatively petty in nature
Essential Elements of a Crime

Mens Rea

Strict Liability Offenses: Modal Penal Code

52
MPC § 2.02: requires the prosecution to prove some form of culpable mental state for each material element of the crime, DOES NOT RECOGNIZE STRICT LIABILITY
Essential Elements of a Crime

Concurrence

53
Def must have had the mens rea necessary for the crime at the time he committed.
Essential Elements of a Crime

Causation

54
Def's conduct must be both the cause-in-fact and proximate cause of the specified result.
Essential Elements of a Crime

Causation

Actual Cause/ Cause in Fact: "But For" Test

55
Question: But for the defs' voluntary action(s), would the harmful result have occurred?

If no, then the def's conduct is the cause-in-fact of the result.
Essential Elements of a Crime

Causation

Actual Cause/ Cause in Fact: Multiple Actual Causes

56
When victim's injuries/death are sustained from multiple difference sources:
(i)any of the multiple wrongdoers can be held liable if
(ii) his act was ONE of the causes-in-fact of the injury/death (DOES NOT HAVE TO BE THE ONLY ACTUAL CAUSE)
Essential Elements of a Crime

Causation

Actual Cause/ Cause in Fact: Accelerating Inevitable Result

57
An act that hastens an inevitable result is nevertheless a legal cause of the result.

Change But For Test: But for the voluntary act of the def', would the resulting harm have occurred WHEN IT DID?

Ex. If X terminates the life support Y, who had a week to live anyway, X is criminally responsible for Y's death b/c it would not likely have occurred when it actually did BUT for X's conduct.
Essential Elements of a Crime

Causation

Actual Cause/ Cause in Fact: Concurrent Causes

58
Similar to Joint & Several Liability In Torts:
(1)If each act alone was sufficient to cause the result, each wrongdoer can be found criminally liable for the entire resulting harm; or
(2) If either act is insufficient in and of itself, but together are sufficient to cause the result, wrongdoers will share responsibility
Essential Elements of a Crime

Causation

Actual Cause/ Cause in Fact: Obstructed Cause

59
If the def' intentionally committed a crime, but a second def' intervened to cause MORE SERIOUS HARM, the first def' might be convicted of a lesser charge b/c his original intent was obstructed
Essential Elements of a Crime

Causation

Actual Cause/ Cause in Fact: Texas Penal Code

60
TX PC § 6.04(a): a person is criminally responsible for his conduct, operating either alone or concurrently w/another cause, unless the concurrent cause was clearly sufficient to produce the result and conduct of the actor clearly insufficient.
Essential Elements of a Crime

Causation

Actual Cause/ Cause in Fact: Modal Penal Code

61
MPC § 2.03(1)(a): applies the "but for", sine qua non, rule/test
Essential Elements of a Crime

Causation

Proximate Cause/ Foreseeability of Risk

62
Generally, a def' is responsible for all results that occur as a "natural and probable" consequence of his conduct, even if he did not anticipate the precise manner in which they would occur; such results are "proximately caused" by the def's act and the proximate causal chain i only broken by the intervention of SUPERSEDING factors
Essential Elements of a Crime

Causation

Proximate Cause/ Foreseeability of Risk

Intervening Acts

63
An intervening act will shield the def' from liability ONLY if the act is a mere coincidence or occurred outside the foreseeable sphere of risk created by the def's act (distinction between 'responsive intervening cause' and 'coincidental intervening cause'
Essential Elements of a Crime

Causation

Proximate Cause/ Foreseeability of Risk

Intervening Acts: Responsive "Dependent" Intervening Cause

64
Some harm occurs as a dependent result of def's prior wrongful conduct; and DOES NOT excuse def's liability (except where highly abnormal) b/c was a foreseeable consequence of def's original wrongful conduct

Ex. A deliberately shoots B in the leg but B dies as a result of negligent medical treatment; A is still liable for B's death b/c medical malpractice is foreseeable.

Crts will usually treat victim's preexisting medical condition, subsequent negligent medical treatment, AND action taken in response to the danger as dependent causes.
Essential Elements of a Crime

Causation

Proximate Cause/ Foreseeability of Risk

Intervening Acts: Coincidental "Incidental" Intervening Cause

65
Some external force that occurs NOT in response to def's initial wrongdoing; relieves def' of liability generally.

Ex. B swerves to avoid hitting A, who is driving negligently, but is struck by lighting and killed; A is not responsible for B's death b/c the lightning was not a foreseeable consequence of A's negligent driving.

Crts will usually treat grossly negligent or reckless medical treatment AND last human conduct (unless the def's conduct causes such distress in victim as to insight irrationality) as independent causes.
Essential Elements of a Crime

Causation

Proximate Cause/ Foreseeability of Risk

Intervening Acts: Apparent Safety Doctrine

66
If def's unlawful act puts victim in danger, that act is the proximate cause of any resulting harm, UNLESS the victim has an obvious route to safety but instead PUT HERSELF IN PATH OF HARM which then causes the injuury.
Essential Elements of a Crime

Causation

Proximate Cause/ Foreseeability of Risk

Intervening Acts: Free, Deliberate, Informed Human Intervention

67
Def may be relieved of liability if the victim's voluntary and informed actions compromise a superseding cause of the harm suffered, so long as the decision doesn't result from duress.

Important to determine whether or not the intervening cause was a foreseeable result of the def's actions.

Ex. Victim chooses to stay inside in freezing temperatures after threat has passed.
Essential Elements of a Crime

Causation

Proximate Cause/ Foreseeability of Risk

Intervening Acts: Preexisting Conditions (Eggshell Skull Rule)

68
A victim's preexisting condition that makes him more vulnerable to harm or death DOES NOT break the causal chain from def's actions; def' must "take the victim as he finds him"
Essential Elements of a Crime

Causation

Proximate Cause/ Foreseeability of Risk

Intervening Acts: Texas Penal Code

69
TX PC: makes no mention of element of foreseeability, but can be found in case law
Essential Elements of a Crime

Causation

Proximate Cause/ Foreseeability of Risk

Intervening Acts: Modal Penal Code

70
"but for" test is the exclusive factor for causation

§ 2.03(2)(b); (3)(c) - in order to find teh def' criminally liable, the social harm actually inflicted must not be "too remote or accidental in its occurrence from that which was designed, contemplated or risked" (foreseeable)

§ 2.03(4) - causation is not established unless the actual result is a probable consequence of the def's conduct (sets forth how causation is analyzed in a strict liability offense that contains a result element)
Burden of Production/Persuasion

Prosecution's Burden of Production

71
Prosecution must produce sufficient evidence that a rational fact finder (judge) could fairly determine that the elements of the crime may be proved beyond a reasonable doubt.

If the judge concludes that the prosecution has failed to satisfy its burden of production regarding ANY material element of the crime charged, the def' is entitled to a directed verdict of acquittal at the end of prosecution's presentation or trial b/c there is insufficient evidence for a rational jury to possibly determine guilty beyond a reasonable doubt.
Burden of Production/Persuasion

Prosecution's Burden of Persuastion

72
BEYOND A REASONABLE DOUBT

Due Process Clause mandates that every person is presumed innocent until proven guilty.

S. Ct. in "IN RE WINSHIP" ruled that prosecution must be able to prove each element of the offense beyond a reasonable doubt to a ration fact finder in order to prevail.
Burden of Production/Persuasion

Defendant's Burden of Production

73
The def may be required to prove any affirmative defenses he raises at trial; amount of evidence required to meet def's burden of production will vary by jurisdiction.

If the def' fails to meet his burden of production regarding his affirmative defenses, the judge WILL NOT instruct the jury on the law pertaining to that defense and the jury WILL NOT consider it during deliberations.
Burden of Production/Persuasion

Defendant's Burden of Persuasion

74
Jurisdictions vary in their allocation of the burden of persuasion regarding affirmative defenses; some require the prosecution to disprove affirmative defenses beyond a reasonable doubt while others require defs to prove affirmative defenses by a preponderance of the evidence
Burden of Production/Persuasion

Defendant's Burden of Persuasion

Texas Penal Code
75
TX PC § 2.04(b);(d) - the prosecution is not required to negate the existence of an affirmative defense; defs must substantiate any affirmative defenses he raises at trail by a PREPONDERANCE OF THE EVIDENCE
Burden of Production/Persuasion

Defendant's Burden of Persuasion

Modal Penal Code

76
MPC § 1.21: except for defenses that expressly require the def to prove by a preponderance of the evidence, the prosecution is charged w/proving every element of the offense beyond a reasonable doubt

§ 1.13(9)(c): where the prosecution must disprove affirmative defenses, he must also negate excuses or justifications for the offense, assuming the def' has satisfied his burden of production for those defenses.
Inchoate Offenses

General

77
An offense, such as incitement or conspiracy, anticipating a further criminal act.

Generally considered felonies.

They are crimes in and of themselves, despite that the further act may never be committed.
Inchoate Offenses

Conspiracy

78
At common law, a conspiracy was defined as a combination or agreement between two or more persons to accomplish some criminal or unlawful urose, or to accomplish a alawful purpose by unlawful means.
Inchoate Offenses

Conspiracy - Merger

79
In most jurisdictions, if the conspirators are successful in completing their objective, they may be committed of both the principal crime and the conspiracy to commit that crime.

MPC § 1.07(1)(b) - does not permit conviction for both conspiracy and the target crime except in rare cases (THERE IS MERGER)
Inchoate Offenses

Conspiracy - Liability of One Conspirator for Crimes Committed by Other Conspirators

80
One conspirator may, by virtue of his participation in the scheme and even in teh absence of the required mental state, be liable for the crimes of any or all other conspirators if 2 requirements are met:
1. the crimes were committed in furtherance of the broad goals of the conspiracy; and
2. the crimes were a foreseeable consequence of the conspiracy
Inchoate Offenses

Conspiracy - Attempt Distinguished

81
The law requires the def to make a SUBSTANTIAL STEP toward commission of the crime; in conspiracy cases, however, the agreement itself is normally sufficient to constitute the crime of conspiracy
Inchoate Offenses

Conspiracy - Elements

82
1. Agreement between two or more parties
2. Intent to enter the agreement; and
3. Intent to achieve the objective of the agreement
Inchoate Offenses

Conspiracy - Req #3

Traditional Actus Reus vs. Modern/Majority Actus Reus

83
"Intent to achieve the objective of the agreement"

Trad'l - the agreement itself was the actus reus

Modern/Majority - require an overt act in futherance of teh conspiracy, mere preparation is usually sufficient
Inchoate Offenses

Conspiracy - Elements

Texas Penal Code

84
TX PC § 15.02(a)(1-2): person commits criminal conspiracy if, with intent that a felony be committed, he agrees w/one or more persons that one or more of them engage in conduct constituting an offense; and one or more conspirators perform an overt act in pursuance of the agreement
Inchoate Offenses

Conspiracy - Elements

Modal Penal Code

85
A person commits a conspiracy if he agrees to:
1. commit an offense
2. attempt to commit an offense
3. solicit another to commit an offense; or
4. aid another person in the planning or commission of the offense

§ 5.03(5): proof of an overt act made pursuant to the crime only required if the act is a misdemeanor of third degree felony
Inchoate Offenses

Conspiracy - "What constitutes an agreement among parties?"

86
An agreement is a "meeting of the minds"; the parties must agree to accomplish the same objective by mutual action.

It does not have to be expressed, it can be implied from awareness of the existence & purpose of the conspiracy.
Inchoate Offenses

Conspiracy - Multiple Crimes

87
If the parties agree to commit several crimes as a result of a single, initial agreement to engage in a course of criminal conduct, they will be guilty of only one conspiracy.

Ex. Despite that A and B agree to commit 15 bank robberies in a year, they can be convicted of only one conspiracy.
Inchoate Offenses

Conspiracy - Multiple Party Situations: Two Characterizations

88
1. "Chain" Relationship (only large conspiracy)
2. "Hub and Spoke"/Wheel Relationship (multiple conspiracies)
Inchoate Offenses

Conspiracy - Multiple Party Situations: "Chain" Relationship

89
One Large Conspiracy - if there is a series of agreements all of which are considered part of a single large scheme in which all parties to the sub-agreements are interested, the situation will be deemed one large, chain conspiracy.

If an individual's actions were committed in furtherance of the overall gaol of the conspiracy, the sub-agreement becomes a "link" in the conspiracy chain.

Ex. Z, owner of a liquor wholesale agency, distributes whiskey through A & B, to arrange w/local tavern owners C & D to sell the booze at prices below that permitted by law. Ct will determine that one large conspiracy exists b/c all parties are working to further the same objective -- the illegal distribution of whiskey, even if all parties are not wholly aware of the other parties' specific roles.
Inchoate Offenses

Conspiracy - Multiple Party Situations: "Hub and Spoke"/Wheel Relationship

90
Multiple Conspiracies - one participant may enter into several sub-agreements, each involving different parties but all involving one CENTRAL "HUB" FIGURE. If it can be established that the sub-agreements are reasonably independent of each other, the situation will be regarded as numerous different and separate conspiracies.

Common figure will be considered a member of each independent conspiracy, but members of the "spoke" conspiracies will not be considered to have conspired with each other.

Ex. Z agrees with A, B, and C to make fraudulent loan applications, each action independent of each other. B/c Z's sub-agreements with A, B, and C were not part of an overall scheme in which all parties were interested, there are 3 separate "hub and spoke" conspiracies here rather than one chain conspiracy (Z w/A, Z w/B, Z w/C)
Inchoate Offenses

Conspiracy - What are the implications of requiring "two or more parties" at COMMON LAW?

91
A conspiracy must involve a "meeting of the minds" between AT LEAST two independent persons.

At common law, there must be a "meeting of the minds" of AT LEAST two "guilty minds" such that both pparties must actually be conspiring to commit a crime

Ex. So, under common law, if A conspires w/only P, an undercover police officer, to rob a bank, A cannot be found guilty of conspiracy.
Inchoate Offenses

Conspiracy - What are the implications of requiring "two or more parties" in the Texas Penal Code?

92
TX PC § 15.02(a)(1) - states taht only one person need engage in conduct constituting the offense.

Ex. So, under TPC, if A conspires w/only P, an undercover police officer, to rob a bank, A CAN be found guilty of conspiracy.
Inchoate Offenses

Conspiracy - What is the "Wharton Rule"?

93
Where two or more people are necessary for the commission of the substantive offense, the "wharton rule" states that there is no crime of conspiracy unless more parties participate in the agreement than are necessary for the actual crime.

Ex. the crime of adultery requires two people; if A and B agree to commit adultery, there is no conspiracy unless another party agrees to aid them in committing adultery.

MPC DOES NOT RECOGNIZE THIS RULE.
Inchoate Offenses

Conspiracy - What is the effect of an acquittal of all other conspirators at common law?

94
A conspiracy requires two guilty parties at common law. In most courts, the acquittal of all persons with whom the def is alleged to have conspired precludes the conviction of the remaining def.

This rule DOES NOT apply where the other parties are NOT APPREHENDED, are charged with lesser offenses, or are no longer being prosecuted (NOLLE PROSEQUI).
Inchoate Offenses

Conspiracy - What is the effect of an acquittal of all other conspirators under the Texas Penal Code?

95
TX PC § 15.02(c)(2): it is NO DEFENSE to prosecution for criminal conspiracy that one or more of the conspirators has been acquitted, so long as TWO OR MORE conspirators have not been acquitted.
Inchoate Offenses

Conspiracy - What is the effect of an acquittal of all other conspirators under the Modal Penal Code?

96
MPC: unilateral approach (conspiracy established by showing that def “agreed” with another to commit the crime, regardless of whether the other person shared that commitment)

B/c it is not necessary to prove that an actual agreement between the parties existed, under the MPC, the acquittal of all other parties WILL NOT prevent conviction of the def for conspiracy.
Inchoate Offenses

Conspiracy - Mens Rea

97
Is a "specific intent" crime at common law. Def' must:
1. The def must INTEND to agree w/someone else.
2. The def must INTEND to commit the offense that is the object of the conspiracy
Inchoate Offenses

Conspiracy - Mens Rea: "The Corrupt Motive" Doctrine

98
In addition to the specific-intent mens rea elements, parties to a conspiracy must also have known that their objective was criminal.

Not recognized by the MPC or the majority of jurisdictions b/c it effectively provides a "limited ignorance of the law" defense
Inchoate Offenses

Conspiracy - Mens Rea: "The Crimmins Doctrine" Conspiracy to Commit Strict Liability Crimes

99
though “strict liability” crimes require no intent in and of themselves, conspiracy to commit a strict liability crime is a specific intent crime and the defs MUST AGREE to commit strict liability crime and MUST INTEND to carry out substantive strict liability crime.
Inchoate Offenses

Conspiracy: Termination of Conspiracy - Acts of Concealment; SOL

100
B/c most criminals attempt to hide their illegal behavior, courts generally view that evidence of overt acts of concealment IS NOT sufficient to make the act of concealment part of the conspiracy.

SOL for conspiracy begins at the time when the offense ends, that is when the last overt act done in furtherance of the conspiracy is committed.

so unless parties specifically agreed that they would conceal their crime until the statutory period had expired, the SOL begins to run upon completion of the act the conspiracy was created to accomplish.
Inchoate Offenses

Conspiracy: Termination of Conspiracy - Gov't Frustration of Conspiracy's Objective

101
The govt's defeat of the conspiracy's ultimate goals does not automatically terminate the conspiracy.
Inchoate Offenses

Conspiracy - Defenses:
Impossibility

102
Impossibility is NOT A Defense

Factual and legal impossibility are not defenses to conspiracy.

Even if it was factually impossible to achieve the ultimate objective of the conspiracy, or if the result was not actually illegal, the def can still be convicted of criminal conspiracy b/c the agreement itself is a crime.

Ex. A and B agree to shoot C, whom they believe to be asleep; C is in fact dead, but regardless, A and B can be convicted of conspiracy.
Inchoate Offenses

Conspiracy - Defenses:
Abandonment/Renunciation at Common Law

103
The general rule is that withdrawal from a conspiracy IS NOT a defense b/c the conspiracy was considered complete once the agreement was made and an overt act committed in its furtherance.
Inchoate Offenses

Conspiracy - Defenses:
Abandonment/Renunciation under Texas Penal Code

104
TX PC § 15.04(a): criminal entitled to affirmative defense if, under circumstances manifesting a VOLUNTARY and COMPLETE RENUNCIATION of his criminal objective the actor withdrew from the conspiracy before commission of the object offense AND TOOK FURTHER AFFIRMATIVE ACTION that prevented the commission of the object offense.
Inchoate Offenses

Conspiracy - Defenses:
Abandonment/Renunciation under Modal Penal Code

105
MPC recognizes voluntary withdrawal as a defense to conspiracy if the def renounces his criminal purpose and thwarts the success of the conspirators (such as by notifying the police), to demonstrate complete and voluntary renunciation of criminal intent.
Inchoate Offenses

Conspiracy - Defenses:
Abandonment/Renunciation - Defense to Subsequent Crimes of Co-Conspirators

106
Person may limit his liability for subsequent acts of the other members of the conspiracy, including the target crime, if he withdraws; withdrawal accomplished by performing an affirmative act that notifies all members of the conspiracy with sufficient time for them to have the opportunity to abandon their plans.
Inchoate Offenses

Conspiracy - Punishment: Common Law

107
B/c a def may be convicted of both conspiracy and the completed crime, most jurisdiction have enacted express penalty provisions for conspiracies.
Inchoate Offenses

Conspiracy - Punishment: Texas Penal Code

108
TX PC § 15.02(d): a criminal conspiracy is one category lower than the most serious felony that is the object of the conspiracy, and if the most serious felony that is the object is a state jail felony, the offense is a Class A misdemeanor
Inchoate Offenses

Conspiracy - Punishment: Modal Penal Code

108
MPC § 5.05(1): punishment for conspiracy is at the same level as the substantive, target crime, unless the target crime carries a maximum penalty of life imprisonment (“felonies of first degree”).
Inchoate Offenses

Attempt - Common Law Definition

110
A criminal attempts is an act that, although done w/the intention of committing a crime, falls short of commission. Consists of two elements:
1. a specific intent to commit the crime; and
2. an overt act in furtherance of that intent
Inchoate Offenses

Attempt - Texas Penal Code Definition

111
TX PC § 15.01(a): a person commits criminal attempt if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.
Inchoate Offenses

Attempt - Mens Rea

112
Def' must have the intent to perform an act AND obtain a result that, if achieved, would constitute a crime.

Attempt requires SPECIFIC INTENT. Regardless of the intent required for a completed offense, a criminal attempt always requires specific intent.

Ex. attempted battery requires the specific intent to harm or touch another, even though the mens rea required for battery itself does not require specific intent
Inchoate Offenses

Attempt - Mens Rea for Attempt to Committ Strict Liability Crimes

113
Attempt to commit STRICT LIABILITY crimes requires INTENT.

Although a strict liability crime does not require mens rea, to attempt to commit a strict liability crime requires specific intent to commit and complete that offense.
Inchoate Offenses

Attempt - Actus Reus

114
Def' must have committed an act BEYOND MERE PREPARATION for teh offense.
Inchoate Offenses

Attempt - Actus Reus: What are the Tests Used to Determine?

115
1. Proximity Test
2. Last Act Test
3. Indispensable Element Test
4. Probable Distance Test
5. Unequivocality Test
6. Majority Rule/MPC Test
Inchoate Offenses

Attempt - Actus Reus - Proximity Test

116
Evaluate the act based on how close the def came to completing the offense.

Under the typical proximity test, attempt requires an act that is dangerously close to success.
Inchoate Offenses

Attempt - Actus Reus - Last Act Test

117
An attempt is considered to have occurred at least by the time of the last act committed by the def in furtherance of the target crime.
Inchoate Offenses

Attempt - Actus Reus - Indispensable Element Test

118
Attempt occurs when the def has obtained control of an indispensable feature of the criminal plan.
Inchoate Offenses

Attempt - Actus Reus - Probable Distance Test

119
Attempt occurs when def has reached a point in the preparatory stage that it is unlikely he would have voluntarily desisted from his efforts to commit the crime.
Inchoate Offenses

Attempt - Actus Reus - Unequivocality Test

120
RES IPSO LOQUITOR - attempt occurs when def's conduct, standing alone, unambiguously manifests his criminal intent.
Inchoate Offenses

Attempt - Actus Reus - Majority Rule/MPC Test

121
Requires that the act or omission constitute a "substantial step in a course of conduct planned to culminate in the commission of the crime".

An act WILL NOT qualify as a substantial step unless it is strong corroboration of the actor's criminal purpose.
Inchoate Offenses

Attempt - Defenses to Liability for Attempt

Impossibility

122
At common law, factual and legal impossibility were distinguished and LEGAL IMPOSSIBILITY was a defense.

Factual impossibility - it is no defense to allege impossibility b/c of attendant circumstances beyond her control

Ex. A attempts to rob B on the street, not aware that B has no money; A can still be convicted of attempted robbery

Legal Impossibility - If those things that the def does or intends to do WOULD NOT actually be a crime, the def cannot be guilty. Occurs when the def sets out to do things which they mistakenly believe are crimes.

A attempts to hunt for deer, believing that hunting season has ended. Actually, hunting season is to last for an additional month, so A cannot be guilty of attempted poaching.

Recognized by ALL COURTS, also a defense under the MPC b/c the result is not proscribed by law.
Inchoate Offenses

Attempt - Defenses to Liability for Attempt

Abandonment: Common Law

123
If the def has, w/the required intent, gone beyond mere preparation in her attempt to commit a crime, the general rule is that abandonment is NEVER A DEFENSE.
Inchoate Offenses

Attempt - Defenses to Liability for Attempt

Abandonment: Texas Penal Code

124
TX PC § 15.04(a): def entitled to affirmative defense if under circumstances manifesting a voluntary and complete renunciation of his criminal objective the actor avoided commission of the offense attempted by abandoning his criminal conduct or, if abandonment was insufficient to avoid commission of the offense, by taking further affirmative action that prevented the commission.
Inchoate Offenses

Attempt - Defenses to Liability for Attempt

Abandonment: Modal Penal Code

125
MPC § 5.01(4): withdrawal will be a defense only if:
1. It is fully voluntary and not made because of the difficulty of completing the crime or because of an increased risk of apprehension; and
2. It is a complete abandonment of the plan made under circumstances manifesting a renunciation of criminal purpose, not a just a decision to postpone committing it or to find another victim
Inchoate Offenses

Attempt - Prosecution for Attempt

126
A def charged with a completed crime may be found guilty of EITHER the completed crime or with attempt to commit the crime so long as the evidence supports such a verdict.

However, a def charged only with attempt may not be convicted of the completed crime.
Inchoate Offenses

Attempt - Punishment for Attempt - Common Law

127
Most states punish attempt less severely than the completed crime.
Inchoate Offenses

Attempt - Punishment for Attempt - Texas Penal Code

128
TX PC § 15.01(d): criminal attempt is one category lower than the offense attempted, and if the offense attempted is a state jail felony, the offense is a Class A misdemeanor
Inchoate Offenses

Attempt - Punishment for Attempt - Modal Penal Code

129
MPC: at attempt may be punished to the same extent as the completed crime, except for capital crimes and the most serious felonies
Defenses

Justification Defenses - General

130
A def may be entitled to a justification defense where his action is socially acceptable, and therefore non-punishable, under the specific circumstances of the case.

Justification focuses on the nature of the conduct under the particular circumstances.
Defenses

Justification Defenses - Self Defense: Non-Deadly Force

Common Law

131
As a general rule, an individual who is without fault (non-aggressor) is justified in using force upon another if he reasonably believes (subjective standard) that such force is necessary to protect himself from imminent use of unlawful force by another

The force must not be excessive in relation to the unlawful harm threatened by the other party

There is NO DUTY TO RETREAT before using nondeadly force, even if such retreat would result in no further harm to either party.
Defenses

Justification Defenses - Self Defense: Non-Deadly Force

Texas Penal Code

132
TX PC § 9.31(a): a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other’s use or attempted use of unlawful force.
Defenses

Justification Defenses - Self Defense: Non-Deadly Force

Modal Penal Code

133
MPC § 3.04(1): a person is justified in using force on another if he believes that such force is immediately necessary to protect himself against the exercise of unlawful force by the other on the present occasion.
Defenses

Justification Defenses - Self Defense: Deadly Force

Common Law

134
A person may use deadly force in self-defense if:

(i) she is without fault (a person who has initiated an assault or provoked the other party will be considered the aggressor and will not be justified in using deadly force),

(ii) she is confronted with unlawful force (the attacker must be using unlawful force, i.e. force that constitutes a crime or a tort), and

(iii) she is threatened with imminent death or great bodily harm (the ∆ must reasonably believe that she is faced with imminent death or great bodily harm if she does not respond with deadly force

The danger of harm or death must be imminent; there is no right to use deadly force if the harm is merely threatened at a future time of the attacker has no present ability to carry out the threatened action.
Defenses

Justification Defenses - Self Defense: Deadly Force

Texas Penal Code

135
TX PC § 9.32: a person is justified in using deadly force against another if he reasonably believes such force is immediately necessary to protect himself from an unlawful force; if a reasonable person in the actor’s situation would not have retreated; and when and to the degree he reasonably believes the deadly force is necessary to:
1. Protect himself from the other’s use or attempted use of unlawful deadly force; or

2. To prevent the other’s imminent commission of [various felonies]
Defenses

Justification Defenses - Self Defense: Deadly Force

Modal Penal Code

136
MPC: deadly force is justifiable when the def believes that such force is immediately necessary to protect himself on the present occasion from:
1. Death;
2. Serious bodily injury;
3. Forcible rape; or
4. Kidnapping
Defenses

Justification Defenses - Self Defense: Deadly Force

Common Law: Retreat

137
Majority rule is that there is no duty to retreat; a person (other than the initial aggressor) may use deadly force in self-defense even if this could be avoided by retreating.

Even in the minority of courts that disagree with this rule, retreat is only sometimes necessary.

Ex. no retreat is necessary unless it can be made in complete safety

Castle Doctrine – exception is that a non-aggressor need not ordinarily retreat if he is attacked in his own dwelling or within its curtilage (the immediate surrounding land associated with a dwelling), even if he could do so in complete safety

TX regards an office as a “castle” as well and no retreat is required

MPC: One may not use deadly force against an aggressor if he knows that he can avoid doing so with complete safety through retreat.
Defenses

Justification Defenses - Self Defense: Deadly Force

Common Law: Right of Aggressor to Use Self Defense

138
Generally, one who initiates aggression has NO RIGHT to use force in her own defense, BUT, an aggressor can “regain” her right to use self-defense if:
1. Withdrawal – an aggressor who, in good faith, effectively removes herself from the fray and communicates to the other person her desire to remove herself, regains the right to use self-defense

2. Sudden Escalation – if the victim of initial aggression suddenly escalates a “minor” fight into one involving deadly force and does so without giving the aggressor the chance to withdraw, the aggressor may be justified in using force in her own defense.
Defenses

Justification Defenses - Defense of Others:

What Relationship Is Required to Justify Defense?

139
Majority rule is that no special relationship need exist between the parties before the defender is justified in using force to defend the third party; one may use force in defense of any other person if the other requirements of the defense are met.
Defenses

Justification Defenses - Defense of Others:

What is the requirement of the person aided for this defense?

140
A def has this defense if she reasonably believed that the person she assisted had the legal right to use force in his own defense; all that is required for the defense is the reasonable appearance of the right to use force.

Generally, a person is justified in using force to defend a 3rd-party only to the extent that the 3rd-party would have been justified in acting in self-defense (proportional response impt.)
Defenses

Justification Defenses - Defense of Others

Texas Penal Code

141
TX PC § 9.33: a person is justified in using force or deadly force against another to protect a third person if
(i) under the circumstances as the actor reasonably believes them to be, the actor would be justified in using force or deadly force to protect himself against the unlawful force or unlawful deadly force he reasonably believes to be threatening the third person; and
(ii) the actor reasonably believes that his intervention is immediately necessary to protect the third person.
Defenses

Justification Defenses - Defense of Others

Modal Penal Code

142
MPC § 3.05(1) a person is justified in using force to protect a third party if:
1. He uses no more force to protect the third party than third party would be entitled to use in self-protection, based on the circumstances as he believes them to be; and
2. He believes that intervention is necessary for the third party’s protection
Defenses

Justification Defenses - Defense of Dwelling: Non Deadly Force

143
a person is justified in use of nondeadly force in defense of her dwelling when, and to the extent that, she reasonably believes that such conduct is necessary to prevent or terminate another’s unlawful entry into or attack upon her dwelling
Defenses

Justification Defenses - Defense of Dwelling: Deadly Force

144
One is generally justified in the use of deadly force in two situations:
1. Tumultuous Entry Plus Personal Danger – use of deadly force is justifiable where the entry was made or attempted in a riotous, violent, or tumultuous manner and the person reasonably believes that the use of force is necessary to prevent personal attack upon herself or another in the dwelling

2. Felony – use of deadly force is also justifiable where the person reasonably believes that such force is necessary to prevent the entry into the dwelling by a person who intends to commit a felony in the dwelling
Defenses

Justification Defenses - Defense of Property: Non Deadly Force

145
May be used to defend property in one’s possession from unlawful interference; need for force must reasonably appear imminent.

Right is limited to property in one’s possession; force cannot be used to regain possession of property wrongfully taken, unless the person is in “IMMEDIATE PURSUIT” of the taker

TX PC § 9.41: a person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other’s trespass on the land or unlawful interference with the property
Defenses

Justification Defenses - Defense of Property: Deadly Force

146
Defense of property ALONE can never justify the use of deadly force.

A person may use deadly force in he defense of property generally only IN CONJUNCTION with another privileged use of force (such as self-defense).

TX PC § 9.42: a person is justified in using deadly force against another to protect land or tangible, movable property if he reasonably believed such force is immediately necessary to PREVENT the other’s IMMINENT commission of a burglary, arson, robbery, etc.; and he reasonably believes that the land or property cannot be protected or recovered by any other means
Defenses

Justification Defenses - Necessity - Common Law Definition

147
Conduct otherwise criminal is justifiable if, as a result of pressure from NATURAL FORCES, the defendant reasonably believed that the conduct was necessary to avoid some harm to society that would exceed the harm caused by the conduct
Defenses

Justification Defenses - Necessity - Is the test objective or subjective?

148
Objective Test – a good faith belief in the necessity of one’s conduct is insufficient

To justify a necessity defense, def must reasonably believe:
1. There is an imminent harm to himself, others, or to property; and
2. That there no alternative solution; and
3. Def must not be at fault in creating the emergency that necessitated the conduct; Def must have committed the lesser of two evils


Affirmative defense of necessity generally not available in cases of murder.
Defenses

Justification Defenses - Necessity - Texas Penal Code

149
TX PC § 9.22 – conduct is justified if:
1. The actor reasonably believes the conduct is immediately necessary to avoid imminent harm;
2. The desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and
3. A legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear
Defenses

Excuses Defenses - General

150
Excuse defenses focus on the def’s moral culpability or his ability to form the mens rea required by the particular crime at issue; excuse defense recognizes that the def has caused some social harm but excuses such harm on the basis that mitigating factors are more to blame
Defenses

Excuses Defenses - What are they?

151
1. Mistake of Fact
2. Mistake of Law
3. Duress (Coercion/Compulsion)
4. Intoxication
5. Insanity
6. Diminished Capacity
Defenses

Excuses Defenses - Mistake of Fact

152
Ignorance or mistake as to a matter of fact will affect criminal guilt ONLY IF it shows that the def did not have the STATE OF MIND required for the crime;

Must negate mens rea element of the offense to be a defense

Ex. A, hunting in the woods, shoots through the trees at a figure he believes is B, his enemy, in order to kill him. The figure is, in fact, C. A will still be liable for C’s murder because A’s mistake does not negate his intent to kill someone.
Defenses

Excuses Defenses - Mistake of Fact: Reasonableness of Mistake for "Malice & General Intent Crimes"

153
Reasonableness Required

If the mistake or ignorance is offered to negate the existence of general intent or malice, it must be a reasonable mistake or ignorance (i.e. the type of mistake or ignorance that a reasonable person would have made under the circumstances)
Defenses

Excuses Defenses - Mistake of Fact: Reasonableness of Mistake for "Specific Intent Crimes"

154
Reasonableness Not Required

Any mistake of fact, reasonable or unreasonable, is a defense to a specific intent crime

Ex. A, leaving the office, takes an umbrella she believes to be hers. In fact, it belonged to B. A cannot be held guilty of larceny; since she believed the umbrella was hers, she lacked the state of mind necessary to commit larceny. Because her mistake negates specific intent required, it is immaterial whether her mistake was reasonable or not.
Defenses

Excuses Defenses - Mistake of Fact: Reasonableness of Mistake for "Strict Liability Crimes"

155
Mistake No Defense

B/c strict liability crimes require no mens rea element, mistake or ignorance of fact is no defense to them ever.
Defenses

Excuses Defenses - Mistake of Fact: Texas Penal Code

156
TX PC § 8.02: it is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense

Although an actor’s mistake of fact may constitute a defense to the offense charged, he may nevertheless be convicted of any lesser included offense of which he would be guilty if the fact were as he believed
Defenses

Excuses Defenses - Mistake of Fact: Modal Penal Code

157
MPC § 2.04(1): mistake is a defense if it negates the mental state required to establish any element of the offense

Exception – the defense of mistake of fact is not available if the def would be guilty of another offense, had the circumstances been as he believed them to be
Defenses

Excuses Defenses - Mistake of Law: General

158
No Defense

It is not a defense to a crime that the def was unaware that her acts were prohibited by the criminal law or that she mistakenly believed that her acts were not prohibited; even if her ignorance or mistake of law was reasonable

Ex. A kills a mockingbird in her front yard, not knowing that such is illegal. A will be held criminally liable for her conduct even though she was not aware her actions violated the law.
Defenses

Excuses Defenses - Mistake of Law:
Mistake or Ignorance of Law May Negate Intent

159
If the mental state for a crime requires a certain belief concerning a collateral aspect of the law, ignorance or mistake as to that aspect of the law will negate the requisite state of mind.

This situation involves ignorance of some aspect of the law other than the existence of the statute making the act criminal.
Defenses

Excuses Defenses - Mistake of Law:
Reasonable Reliance on "Official Statement"

160
At both common law and MPC, a person is excused for committing a criminal offense if he reasonably relies on an official statement of the law, though later determined to be erroneous, obtained from a person or public entity charged with responsibility for the interpretation, administration, or enforcement of the law defining the offense.

“Official Statement” - statements of law must be contained in:
1. Statute later declared to be invalid;
2. A judicial decision of highest court in jurisdiction, later overruled; or
3. An official, but erroneous, interpretation of the law, secured from a public officer charged with its interpretation, administration, or enforcement (such as the Atty. Gen.)
Defenses

Excuses Defenses - Mistake of Law:
Reasonable Reliance on Private Counsel


161
Unlike reasonable reliance on an official representation of the law, relying on the advice of one’s own counsel is normally not allowed as a true affirmative defense to a crime.
Defenses

Excuses Defenses - Mistake of Law: Texas Penal Code

162
TX PC § 8.03: it is no defense that the actor was ignorant of the provisions of any law after the law has taken effect.

It is an affirmative defense that the actor reasonably believed the conduct charged did not constitute a crime and that he acted in reasonable reliance upon:
1. An official statement of the law contained in a written order or grant of permission by an administrative agency charged by law with responsibility for interpreting the law in question; or
2. A written interpretation of the law contained in a court of record or made by a public official charged by law with responsibility of interpreting the law in question.
Defenses

Excuses Defenses - Duress (Coercion/Compulsion) - Common Law

163
A person is not guilty of an offense, other than homicide, if he performs an otherwise criminal act under the threat of imminent infliction of death or great bodily harm, provided that he reasonably believes death or great bodily harm will be inflicted on himself or on a member of his immediate family if he does not perform such conduct

Threats to harm any third person may also suffice to establish the defense of duress.


Note that an act committed under duress is termed excusable RATHER THAN justifiable – the distinction stems from the fact that criminal acts performed under duress are condoned by society rather than encouraged.

Def accorded a defense not because it is okay to violate the law, but because the circumstances were so urgent that a reasonable person in the same situation would have done the same.
Defenses

Excuses Defenses - Duress (Coercion/Compulsion) -

When Can Duress be a Defense?

164
1. Person commits crime because has been threatened by another person with imminent death or serious bodily injury, either to themselves or to a third party;

2. Person who has been threatened must reasonably believe that succumbing to the threat will stop the imminent harm; and

3. Person must not have played a role in bringing about the coercive situation
Defenses

Excuses Defenses - Duress (Coercion/Compulsion) - Texas Penal Code

165
TX PC § 8.05: it is an affirmative defense to prosecution that the actor engaged in the proscribed conduct because he was compelled to do so by threat of imminent death or serious bodily injury to himself or another.

Compulsion within the meaning of this section exists only if the force or threat of force would render a person of reasonable firmness incapable of resisting the pressure.

Defense is unavailable if the actor intentionally, knowingly, or recklessly placed himself in a situation in which it was probable that he would be subjected to compulsion.
Defenses

Excuses Defenses - Duress (Coercion/Compulsion) - Modal Penal Code

166
Available only when the peril confronting the def arises from the “do it or else” (that a person of reasonable firmness in his situation would have been unable to resist) command of another person, NOT when it arises from some other source, such as a natural condition.

Standard not wholly external in its reference; account is taken of the actor’s “situation” in terms of tangible factors that differentiate the actor from another, such as his size, strength, age, health, etc.; matters of temperament are not considered when evaluating the def’s actions according to a reasonable person standard

MPC § 2.09 – differs from common law; duress CAN BE used as a defense to MURDER and all other crimes.

Threat does not have to be imminent or deadly under the MPC, need only be a threat of “unlawful” force

Test is whether a person of reasonable firmness in the def’s situation would have done the same.
Defenses

Excuses Defenses - Intoxication - General

167
Intoxication may be caused by any substance, though alcohol, drugs, and medicine are the most common.

Evidence of intoxication may be raised whenever the intoxication negates the existence of an element of a crime. The law generally distinguishes between voluntary and involuntary intoxication.
Defenses

Excuses Defenses - Intoxication - Voluntary Intoxication

168
Intoxication is self-induced if it is the result of the intentional taking without duress of a substance known to be intoxicating.

The person need not have intended to become intoxicated

Defense is not available if the def PURPOSELY becomes intoxicated in order to establish the defense.

No Defense to Crimes Requiring Malice or Recklessness – voluntary intoxication is not a defense to crimes requiring malice, recklessness, or negligence, or to crimes of strict liability.

Thus, voluntary intoxication is not a defense to common law murder, which requires a mens rea of “malice aforethought”
Defenses

Excuses Defenses - Intoxication - Voluntary Intoxication: Defense to Specific Intent Crime

169
Defense to Specific Intent – voluntary intoxication evidence may be offered when the def is charged with a crime that requires purpose (intent) or knowledge, to establish that the intoxication prevented the def from formulating the requisite intent.

May be a good affirmative defense to specific intent crimes, but usually will not be a sufficient defense to general intent crimes.
Defenses

Excuses Defenses - Intoxication - Voluntary Intoxication: Texas Penal Code

170
TX PC § 8.04: voluntary intoxication does not constitute a defense to the commission of a crime
Defenses

Excuse Defenses - Intoxication - Involuntary Intoxication - General

171
Intoxication is involuntary only if it results from the taking of an intoxicating substance
(i) without knowledge of its nature,
(ii) under direct duress imposed by another, or
(iii) pursuant to medical advice while unaware of the substance’s intoxicating effect
Defenses

Excuse Defenses - Intoxication - Involuntary Intoxication - Majority of Jurisdictions


172
Most Jurisdictions: 3 forms of Involuntary Intoxication
1. Unwitting intoxication - def must be totally unaware that he has ingested the intoxicating substance

If def knows that he has ingested something, but is unsure of its nature or effect, he will likely NOT be able to raise involuntary intoxication as a defense.

2. Coerced intoxication - Occurs when def is forced to ingest drug; or

3. Pathological intoxication -
Occurs when medication or alcohol produces a grossly exaggerated or extreme effect
Defenses

Excuse Defenses - Intoxication - Involuntary Intoxication - As a Defense: Common Law

173
Involuntary intoxication may be treated as a mental illness, in which case a def is entitled to acquittal if, because of the intoxication, she meets whatever test the jurisdiction has adopted for insanity.

Intoxication and insanity are ordinarily two separate defenses; however, continuous, excessive drinking or drug use may bring on actual insanity, in which case a def would be entitled to intoxication and insanity defenses.
Defenses

Excuse Defenses - Intoxication - Involuntary Intoxication - As a Defense: Texas Penal Code

174
TX PC § 8.04(b): evidence of temporary insanity caused by intoxication my be introduced by the actor in mitigation of the penalty attached to the offense charged

“Intoxication” means disturbance of mental or physical capacity resulting from the introduction of any substance into the body
Defenses

Excuse Defenses - Insanity: General

175
The insanity defense exempts certain ∆s because of the existence of an abnormal mental condition at the time of the crime; insanity is a legal term, rather than a psychiatric one.

State of mind must be one of temporary or longstanding disease, disorder, or disturbance; mere excitability of the normal person, passion, stupidity, lack of self-control, or impulsiveness are sufficient.
Defenses

Excuse Defenses - Insanity: Formulations of Insanity Defense -

M'Naghten Rule

176
M’Naghten Rule - def is entitled to acquittal if the proof establishes that:
1. A disease of the mind
2. Caused a defect of reason
3. Such that the ∆ lacked the ability at the time of his actions to either:
a. Know the wrongfulness of his actions; or
b. Understand the nature and quality of his actions (it must clearly proved that at the time of committing the act, the party accused was under a defect of the mind as to cause him not to know the nature & quality of the act OR he did not know it was wrong)
Defenses

Excuse Defenses - Insanity: Formulations of Insanity Defense -

M'Naghten Rule: Applications

177
1. Def with Delusions – if def suffered from delusions (false beliefs), it is necessary to determine whether his actions would have been criminal if the facts had been as he believed them to be.

2. Belief that Acts are Morally Right – a def is not entitled to an acquittal merely because he believes his acts are morally right, unless he has lost the capacity to recognize that they are regarded by society as wrong

3. Inability to Control Oneself – under the traditional interpretation of the M’Naghten rule, it is irrelevant that the def may have been unable to control himself and avoid committing the crime; loss of control because of mental illness is no defense

4. Admissible Evidence – most jurisdictions admit any evidence that reasonably tends to show the mental condition of the def at the time of the crime
Defenses

Excuse Defenses - Insanity: Formulations of Insanity Defense -

Irresistible Impulse Test

178
Def entitled to acquittal if the proof establishes that because of the mental illness he was unable to control his actions or to conform his conduct to the law

Inability NEED NOT come upon the def suddenly, despite the term “impulse”.
Defenses

Excuse Defenses - Insanity: Formulations of Insanity Defense -

Durham (New Hampshire) Test

179
Def entitled to an acquittal if the proof establishes that his crime was the “product of mental disease or defect”

A crime is a “product of” the disease if it would not have been committed but for the disease.

Durham test is broader than the M’Naghten rule or irresistible impulse test; intended primarily to give psychiatrists greater liberty to testify concerning the def’s mental condition
Defenses

Excuse Defenses - Insanity: Formulations of Insanity Defense -

Texas Penal Code

180
TX PC § 8.01(a): it is an affirmative defense to prosecution that, at the time of the conduct charged, that actor, as a result of severe mental disease or defect, did not know that his conduct was wrong
• “mental disease or defect” does not include an abnormality manifested only be repeated criminal or otherwise antisocial conduct
Defenses

Excuse Defenses - Insanity: Formulations of Insanity Defense -

Modal Penal Code

181
MPC Test - def is entitled to acquittal if the proof shows that he suffered from a mental disease or defect and as a result lacked substantial capacity to either:
1. Appreciate the criminality of his conduct; or
2. Conform his conduct to the requirements of law
Defenses

Excuse Defenses - Insanity: Procedural Issues Related to Insanity Defense:

Burden of Proof - Presumption of Sanity & Burden of Production

182
All defs are presumed sane; the insanity issue is not raised until the def comes forward with evidence tending to show that he was insane under the applicable test.
Defenses

Excuse Defenses - Insanity: Procedural Issues Related to Insanity Defense:

Burden of Proof - Burden of Persuasion

183
Under the MPC and in some jurisdictions, once the issue has been raised, the prosecution must prove that the def was sane beyond a reasonable doubt.

In other jurisdictions (TX), the def must prove his insanity, generally by a preponderance of the evidence

Federal courts require def to prove insanity by clear and convincing evidence.
Defenses

Excuse Defenses - Diminished Capacity

184
Some states recognize the defense of “diminished capacity,” under which the defendant may assert that as a result of mental defect (such as neurosis, obsessive compulsiveness, etc.) SHORT OF INSANITY, he did not have the particular mental state required for the crime charged.

Most states recognizing this defense LIMIT its applicability to specific intent crimes.
Offenses Against the Person

Rape - Common Law

185
Rape is sexual intercourse by a man with a woman not his wife, committed:
1. Forcibly or under threat of force;
2. Through deception;
3. While the woman is asleep or unconscious; or
4. Under circumstances in which the woman is not competent to give consent (e.g., she is drugged, mentally incompetent, or underage)
Offenses Against the Person

Rape - Is it a general intent offense?

186
Yes - a def is guilty of rape if he had a morally blameworthy state of mind regarding the female’s lack of consent.
Offenses Against the Person

Rape - Statutory Law

187
Many states now extend the law to specified forms of non-forcible, but non-consensual intercourse.

Additionally, rape is now defined in gender-neutral terms regarding both the perpetrator and the victim.
Offenses Against the Person

Rape - Statutory Law: Texas Penal Code

188
TX PC § 22.011 – sexual assault includes all forms of sexual penetration; requires intentional or knowing classifications of mens rea.
Offenses Against the Person

Rape - Statutory Law: Modal Penal Code

189
MPC § 213.1(1) – a man is guilty of rape if, acting purposely, knowingly, or recklessly regarding each of the material elements of the offense, he has sexual intercourse with a woman under any of the following circumstances:
1. The woman is less than 10 years of age;
2. She is unconscious;
3. He compels her to submit by force (or by threat) her or another person with imminent death, grievous bodily harm, extreme pain or kidnapping; or
4. He administers or employs drugs or intoxicants in a manner that substantially impairs the woman’s ability to appraise or control her conduct.
Offenses Against the Person

Rape - Forcible Element: Common Law

190
Prosecution is required to prove that:
1. the woman did not consent to the intercourse; AND that
2. the sexual act was "by force" or "against her will"

Generally, nonconsensual intercourse is "forcible" if:
1. The male uses, or threatens to use force likely to cause serious bodily harm to teh female; or
2. threatens to harm a third person (non physical threats DO NOT constitute forcible rape at common law)
Offenses Against the Person

Rape - Forcible Element: Resistance

191
Majority: requires reasonableness; mandate that the alleged victim assert a REASONABLE degree of resistance under teh circumstances, or sufficient resistance to demonstrate that the sexual intercourse was w/out consent

Minority (MPC): no resistance needed
Offenses Against the Person

Rape - Marital Immunity Rule - Common Law

192
Husband could not be guilty of raping his wife.
Offenses Against the Person

Rape - Marital Immunity Rule - Modern Law

193
Minority - No defense for marital rape (12 states (TX) have abolished marital immunity rule)

MPC (another minority) - MPC § 213.6(2) no prosecution for rape if occurred against a spouse or between people living as man and wife; only exception is for spouses living apart under a FORMAL separation decree
Offenses Against the Person

Rape - Statutory Rape - Common Law

194
Statutory rape is a strict liability crime of sexual intercourse between a man and a female under the age of consent.

Even if the female is a willing participant, the offense is nevertheless committed b/c consent is irrelevant.
Offenses Against the Person

Rape - Statutory Rape - Mistake as to Age

195
Usually a def's reasonable mistake as to the victim's age WILL NOT prevent his criminal liability for statutory rape.
Offenses Against the Person

Rape - Statutory Rape - Texas Penal Code

196
TX PC § 22.011 – statutory rape listed under general sexual assault category; same elements

“child” in TX must be under the age of 17, who is not the spouse of the actor
Offenses Against the Person

Rape - Statutory Rape - Modal Penal Code

197
MPC – does not recognize strict liability crimes, so no “statutory rape;”

However, MPC does consider sexual intercourse with a female under the age of 10 to be punishable rape.
Offenses Against the Person

Homicide: Classifications of Homicide (at common law)

198
At common law, homicides were divided into three classifications:
1. Justifiable homicides – those commanded or authorized by law;
2. Excusable homicides – those for which there was a defense to criminal liability; and
3. Criminal homicides
Offenses Against the Person

Homicide: Common Law Criminal Homicide - Murder

199
The unlawful killing of a human being with MALICE AFORETHOUGHT.

Malice aforethought may be express or implied.
Offenses Against the Person

Homicide: Common Law: Criminal Homicide

What are criminal homicide offenses?


200
3 levels of criminal homicide: 1. murder,
2. voluntary manslaughter, and
3. involuntary manslaughter
Offenses Against the Person

Homicide: Common Law Criminal Homicide - Murder

Malice Aforethought

201
In the absence of facts excusing the homicide or reducing it to voluntary manslaughter, malice aforethought exists if the def has any of the following states of mind:
1. Intent to kill (express malice);
2. Intent to inflict great bodily harm;
3. Reckless indifference to an unjustifiably high risk to human life (“abandoned and malignant heart”); or
4. Intent to commit a felony, during which a death results (felony murder)
Offenses Against the Person

Homicide: Common Law Criminal Homicide - Murder

Deadly Weapon Rule

202
Intentional use of a deadly weapon authorizes permissive inference of intent to kill

A deadly weapon is any instrument (or in some circumstances, any part of the body) used in a manner calculated or likely to produce death or serious bodily injury.
Offenses Against the Person

Homicide: Texas Penal Code: Criminal Homicide

203
TX PC § 19.01: a person commits criminal homicide if he intentionally, knowingly, recklessly, or with criminal negligence causes the death of an individual
Offenses Against the Person

Homicide: Texas Penal Code: Criminal Homicide

What are criminal homicide offenses?

204
Criminal homicide is:
1. murder,
2. capital murder,
3. manslaughter, or
4. criminally negligent homicide.
Offenses Against the Person

Homicide: Modal Penal Code: Criminal Homicide

205
MPC § 210.1(1): a person is guilty of criminal homicide if he unjustifiably and inexcusably takes the life of another human being and the act was done purposely, knowingly, recklessly, or negligently
Offenses Against the Person

Homicide: Modal Penal Code: Criminal Homicide

What are criminal homicide offenses?

206
3 levels of criminal homicide: 1. murder,
2. manslaughter, and
3. negligent homicide
Offenses Against the Person

Homicide: Common Law Criminal Homicide - Voluntary Manslaughter

207
Intentional killing of a human being distinguishable from murder by the existence of ADEQUATE, LEGAL provocation (ie - killing in the heat of passion)
Offenses Against the Person

Homicide: Common Law Criminal Homicide - Voluntary Manslaughter:

Elements of Adequate Provocation

208
4 Tests:
1. Provocation must have been one that would arouse sudden and intense passion in the mind of an ordinary person such as to cause him to lose his self-control;
2. The def must have IN FACT been provoked;
3. There must not have been sufficient time between the provocation and the killing for the passions of a reasonable person to cool; and
a. This factual question depends upon the nature of the provocation and the attendant circumstances, including any earlier altercations between the def and the victim
4. The def in fact did not cool off between the provocation and the killing
Offenses Against the Person

Homicide: Common Law Criminal Homicide - Voluntary Manslaughter:

When is provocation adequate?

209
Most frequently recognized in cases of:
1. Being subjected to a serious battery or threat of deadly force; and
2. Discovering one’s spouse in bed with another person
Offenses Against the Person

Homicide: Common Law Criminal Homicide - Voluntary Manslaughter:

When is provocation inadequate as a matter of law?

210
At common law, some provocations were defined as inadequate as a matter of law

As a general rule, “mere words” can never be adequate provocation

What of past provocation? -- Common law view is that too long a lapse of time between the provocation and the act of killing will render the provocation inadequate “as a matter of law” and therefore deprive the def of the right to an instruction on voluntary manslaughter.

The cooling-time limitation can sometimes be surmounted by the argument that an event immediately preceding the homicide had “rekindled” the earlier provocation and aroused sudden passion. But, many courts refuse to accept “rekindling” argument.
Offenses Against the Person

Homicide: Texas Penal Code: Criminal Homicide - Manslaughter (aka: common law voluntary manslaughter)

211
TX PC § 19.02: “adequate cause” means cause that would commonly provoke a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection.
“sudden passion” means passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed WHICH PASSION ARISES OUT OF THE TIME OF THE OFFENSE and is note solely the result of former provocation.

§ 19.04: a person commits an offense if he recklessly causes the death of an individual
Offenses Against the Person

Homicide: Texas Penal Code: Criminal Homicide - Manslaughter (aka: common law voluntary manslaughter)

How does it affect punishment phase?

212
During the punishment phase, def may raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause.

If the def proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree (equivalent to manslaughter).
Offenses Against the Person

Homicide: Modal Penal Code: Criminal Homicide - Manslaughter (aka: common law voluntary manslaughter)

213
MPC § 210.3 (1)(a)-(b):
a person is guilty of manslaughter if he:
1. Recklessly kills another; or
2. Kills another person under circumstances that would ordinarily constitute murder, but which homicide is committed as the result of “extreme mental or emotional disturbance” for which there is a “reasonable explanation or excuse”
Offenses Against the Person

Homicide: Modal Penal Code: Criminal Homicide - Manslaughter (aka: common law voluntary manslaughter)

What is Extreme Mental or Emotional Disturbance (EMED)

214
A person who would be guilty of murder because he purposely or knowingly took a human life, or because he killed a person recklessly under circumstances manifesting an extreme indifference to the value of human life, is guilty of the lesser offense of manslaughter if he killed the victim while suffering from an EMED for which there is a “reasonable explanation or excuse”.

The reasonableness of the explanation/excuse is a subjective standard judged from the def’s unique perspective.

EMED blends two common law doctrines:
(i) sudden heat of passion (expanded); and
(ii) partial responsibility (diminished capacity).
Offenses Against the Person

Homicide: Modal Penal Code: Criminal Homicide - Manslaughter (aka: common law voluntary manslaughter)

How EMED different than the common law provocation defense?

215
EMED manslaughter provision is broader than the common law provocation defense in that:
1. A specific provocative act is not required to trigger the EMED defense;
2. Even if there is a provocation, it need not involve “an injury, affront, or other provocative act perpetrated upon the ∆ by the decedent;”
3. Even if the decedent provoked the incident, it need not fall within any fixed category of provocations;
4. Words alone can warrant a manslaughter instruction to the jury; and
5. There is no rigid cooling-off rule
a. The suddenness requirement of the common law heat-of-passion defense is not required for EMED under the MPC
Offenses Against the Person

Homicide: Common Law: Criminal Homicide - Involuntary Manslaughter

216
Criminal Negligence – if death is caused by criminal negligence, the killing is involuntary manslaughter

Criminal negligence requires a greater deviation from the “reasonable person” standard than is required for civil liability
Offenses Against the Person

Homicide: Texas Penal Code: Criminal Homicide - Criminally Negligent Homicide (aka - common law involuntary manslaughter)

217
TX PC § 19.05, Criminally Negligent Homicide – a person commits an offense if he causes the death of an individual by criminal negligence (ought to be aware of a substantial and unjustifiable risk; failure to perceive risk constitutes a gross deviation from RPP standard of care)
Offenses Against the Person

Homicide: Modal Penal Code: Criminal Homicide - Criminally Negligent Homicide (aka - common law involuntary manslaughter)

218
MPC § 210.4: a person who kills another recklessly is guilty of manslaughter; no liability based on criminal negligence under the MPC (differs from common law)

Criminally negligent homicide (termed involuntary manslaughter at common law) is “negligent homicide” under the MPC
Offenses Against the Person

Homicide: Common Law: Criminal Homicide - Involuntary Manslaughter

"Unlawful Act" Manslaughter

219
A killing caused by an unlawful act is involuntary manslaughter; two subcategories:

1. Misdemeanor-Manslaughter Rule
2. Felonies Not Included in Felony Murder
Offenses Against the Person

Homicide: Common Law: Criminal Homicide - Involuntary Manslaughter

"Unlawful Act" Manslaughter - Misdemeanor-Manslaughter Rule

220
A killing in the course of the commission of a misdemeanor is manslaughter although most courts would require either that the misdemeanor be malum in se (inherently wrongful act) or if malum prohibitum, that the death be the foreseeable and natural consequence of the unlawful conduct

MPC § 6.02(2): misdemeanor-manslaughter IS NOT recognized under the MPC
Offenses Against the Person

Homicide: Common Law: Criminal Homicide - Involuntary Manslaughter

"Unlawful Act" Manslaughter - Felonies Not Included in Felony Murder
221
If a killing was caused during the commission of a felony but does not qualify as a felony murder case, the killing will be considered involuntary manslaughter.
Offenses Against the Person

Homicide: Felony Murder

222
The definition of “malice aforethought” makes clear that a killing, even if not intended, committed in the course of COMMITTING A FELONY is murder; malice is implied from the intent to commit the underlying felony

Felonies Included – under the common law, only a handful of felonies were included.

Most jurisdictions today limit felony murder to felonies that are inherently dangerous:
BARKRM:
Burglary, Arson, Rape, Kidnapping, Robbery, and Murder
Offenses Against the Person

Homicide: Felony Murder

Scope of Doctrine

223
When the felony murder doctrine is combined with conspiracy law, the scope of liability becomes very broad.

If, in the course of
conspiracy to commit a felony, a death is caused, all members of the conspiracy are liable for murder if the death was caused in furtherance of the conspiracy and was a foreseeable consequence of the conspiracy.
Offenses Against the Person

Homicide: Felony Murder

Limitations on Liability

224
1. Guilt of Underlying Felony – the def must be guilty of the underlying felony to be guilty of felony murder; if he has a valid defense to the felony, he also has a defense to felony murder

2. Felony Must Be Independent of Killing – the felony murder rule can be applied only where the underlying felony is independent of the killing

A felony such as manslaughter or aggravated battery will not qualify as an underlying felony for purposes of felony murder liability because such crimes result in death by themselves.
Offenses Against the Person

Homicide: Felony Murder

Foreseeability of Death

225
The majority rule is that death must have been a foreseeable result of the commission of the felony

Most courts have been willing to find most deaths foreseeable

A minority of courts do not apply a foreseeability requirement, requiring only that the felony be malum in se.

Ex. A intentionally sets fire to B’s home. C, a firefighter, dies in effort to extinguish the flames. B dies of a heart attack while watching her home be destroyed in the blaze. A is guilty of felony murder for C’s death because it was a foreseeable consequence that C, as a firefighter, might be killed as a result of A’s arson. A will not be held liable for the felony murder of B because B’s fatal heart attack was not foreseeable.
Offenses Against the Person

Homicide: Felony Murder

During the Commission of a Felony - Termination of Felony

226
The death must have been “caused during” the commission or attempted commission of the felony, but the fact that the felony was technically completed before the death does not prevent the killing from being felony murder.

Deaths caused while fleeing the scene of the crime are still felony murder

But, once the felon has a reached a place of “temporary safety,” the impact of the felony murder rule ceases and death subsequently caused are not felony murder.
Offenses Against the Person

Homicide: Felony Murder

Killing of Co-Felon by Victims of Felonies or Pursuing Police Officers

227
Majority view: def is not liable for a co-felon’s death caused by resistance of the victim or police

The Redline view (majority position) is that liability for murder cannot be based upon the death of a co-felon from resistance by the victim or police
Offenses Against the Person

Homicide: Felony Murder

Killing of Innocent 3rd Party by Victims of Felonies or Pursuing Police Officers

228
Courts are split when resistance by the victim or police pursuit causes the death of an innocent 3rd party rather than a co-felon.
Two theories:
1. Agency theory
2. Proximate cause (TX)
Offenses Against the Person

Homicide: Felony Murder

Killing of Innocent 3rd Party by Victims of Felonies or Pursuing Police Officers -

Agency Theory

229
In states following the “agency theory” of felony murder, the killing must have been caused by the def or someone acting as the def’s “agent;” hence the def is not liable for felony murder when someone is killed by the victim or police

Identity of the actual killer becomes a central issue; only if the act of killing is done by a co-felon or someone acting in concert with a co-felon will the felony-murder rule be applicable.
Offenses Against the Person

Homicide: Felony Murder

Killing of Innocent 3rd Party by Victims of Felonies or Pursuing Police Officers -

Proximate Cause

230
(TX) In states following the “proximate cause” theory, the def can be liable when an innocent party is killed by resistance form the victim or police because the death is a direct consequence of the felony

Under this theory, it would seem logical to hold a surviving felon liable no matter whose death, the co-felon’s or an innocent person’s, was proximately caused in furtherance of the felony.
Offenses Against the Person

Homicide: Felony Murder

Related Limits on Misdemeanor Manslaughter (Involuntary Manslaughter)

231
Limits similar to those placed on felony murder are placed on involuntary misdemeanor manslaughter – if the misdemeanor involved is not malum in se (inherently wrongful), a death caused during the commission of a misdemeanor is manslaughter only if death was a foreseeable result of the commission of the misdemeanor

A minority of courts limit the doctrine to malum in se misdemeanors

Ex. A is driving on a good road, in good conditions, but is slightly speeding. B suddenly jumps onto the road from behind a tree and is struck and killed by A’s car. Generally, A will not be guilty of involuntary misdemeanor manslaughter, assuming that speeding is a misdemeanor, because the misdemeanor was not malum in se and the death was not a foreseeable result of its commission.