my attack outline

8/17/2019 My Attack Outline

1/13

← Homicide - MPC

← Actus Reus – causing the death of another human being (easy to determine, apply to all homicide crimes)

←

← Murder (!"#)

← Actus Reus $ee (")

• %oluntary act

o &ime frame' as long as a oluntary act causes the harm

• mission' oluntary omission and * must hae a legal duty to act

o $tatue+ $tatus relationship+ Contractual+ ndertaing+ * created the ris+

• mission . Act' life support

← Mens Rea

• Purpose+ Conscious ob/ect that the person 0ill die (sub/ectie)

• 1no0ledge+ 1no0ledge that the person will die – needs to be practically certain (sub/ectie)

• Reclessness 2 (!.#!(!)(c))' under circumstances manifesting e3treme indifference to human life+

o 4as it recless plus+ (substantial and un/ustifiable ris)

Probability 2 magnitude of harm

n/ustifiability of ris - if non e3istent, chance is much higher

Re5uires actual a0areness of ris - dangerous conduct leads to a presumption of a0areness of ris

(e.g. pointing a deadly 0eapon

o 6f recless plus, 0as it manifesting e3treme indifference to human life+ (ob/ectie) 78ross deiation from the

standard of conduct that a la0-abiding citi9en 0ould obsere:

o Consciously disregard of the un/ustifiable ris+ (sub/ectie)


2/13

• Presumption of ;3treme Reclessness+

o nder !"#.!(")(b)' enumerated offenses that allo0 a presumption

o Presumed =elonies' robbery, rape, arson, burglary, idnapping, or felonious escape

← Conclusion- guilty of murder because ? mens rea. 6f not ? mens rea, he is guilty because he has @ mens rea.

←

← Manslaughter (!"#.(b))

← Actus Reus- $ee (")

← Mens Rea'

• Recless+ (substantial and un/ustifiable ris)

o Conscious disregard of an un/ustifiable ris (of anything bad, doesnBt hae to be death)

o 7gross deiation from the standard of conduct that a la0-abiding citi9en 0ould obsere:

• Homicide that 0ould other0ise be murder but committed under ;;*

o Reasonableness determined from ie0 of person in actorBs situation by a preponderance of eidence

o ury decides if a reasonable person under the *Bs situation 0ould hae acted that 0ay+++

←

← Degligent Homicide (!"#.E)

• Actus Reus – $ee (")

• Mens Rea

o Degligent+

$ubstantial and un/ustifiable ris+

4ould a reasonable person hae acted differently in the same situation+


3/13

← Homicide – Common Fa0

← Actus Reus' &he actus reus for all homicide offenses is causing the death of a human being.

← Murder

← Actus reus' $ee (")

← Mens Rea (malice aforethought)

• Purpose to cause death (6ntent)

o Clear purpose+

o Can you infer purpose+

Reasonable people intend the natural and probable conse5uences of their actions

*id the *Bs conduct sho0 a strong motie or intention to ill

*id he go straight to ictim+ Hae a deadly 0eapon+ Planning+

o Conditional purpose+ $till intent

• 1no0ledge that conduct 0ill cause (6ntent)

o Practically certain that result 0ill occur

• Reclessness manifesting indifference to the alue of human life (*epraed Heart)

o Reclessness re5uires a0areness of a substantial and un/ustifiable ris of death

o Common Sense Balancing of Factors:

*egree of ris' Probability 2 magnitude of harm (do 0e no0+)

n/ustifiability of ris – if non e3istent, chance is much higher

Must have a0areness of ris of death – dangerous conduct can lead to a presumption of a0areness

of ris (e.g. pointing a deadly 0eapon)

&his is SUBJECTIVE – 0hat did the defendant actually beliee++


4/13

se facts to sho0 liely a0are

Compare to driing drun ery fast, Russian roulette, gun in cro0ed room

• *eath during the commission of a felony - mens rea to commit a felony (=elony-murder)

o 6s there =M in this /urisdiction+

Michigan-lie /urisdictions says felony murder is not apart of malice aforethought

MA is best understood not to include felony murder gien that the culpability re5uired for

felony murder is not of the e3tremely serious ind that should be re5uired for murder.

=M is too much lie generali9ed mens rea

6f the enumeration statue says, “murder in the commission of” it maes it seem lie there

needs to be mens rea of murder

CA- lie /urisdictions interpret felony murder to be apart of malice aforethought

;idence of legislatie intent can be sho0 0hen there is enumeration of felonies that

bump the act to first degree murder

History of felony murder in the /urisdiction is important

6f statue doesnBt prohibit felony murder legislatie intent 0ould seem to be that it meant to

eep =M

o 4as there a felony being committed+

*id * intend to commit the felon+

6nterpret the statueBs mens rea

Datural 0ay' mens rea applies to all listed elements

8rammatical' location could mean different

6f it is a mallum prohibtum, liely strict liability

o But-for and proimatel! cause" the death+

&he result must be fairly attributable to the defendantGs action, rather than to mere coincidence or to

the interening action of another (1ing)

;gg-shell rule' tae your ictim as he comes – the fact that the death 0ould not hae occurred 0ere

it not for the ictimBs being especially ulnerable does not preent felonious conduct from being the

pro3imate cause of death


5/13

o 6nherently *angerous+

7Abstract: /urisdiction+ (ma/ority) hard to fulfill

6gnore the facts of the specific case and, instead, consider the elements of the offense in

the abstract – loo at the offense as it is defined by statue, to determine if inherently

dangerous

#an!# $a! to commit the felon! as "efine" in the statute that "oesn%t create ris& of

"eath

;numerated offense suggests inherently dangerous

Child abuse no inherently dangerous because could be breaing arm only

7As Applied: /urisdiction+ liely fulfilled

4hether the felony 0as dangerous to life in the manner actually committed by *

;.g. does telling a terminally ill person not to use there medicine inherently dangerous+

@;$

o Merge+

CanBt be any form of assault

Are the elements of the felony included in those of murder+ Fiely not

6s there an independent felonious purpose+ Fiely

o 4as the death in furtherance of the felony+

=leeing from scene

Helping mae the felony go more smoothly

o *eath caused by non felon+

Agency /urisdiction+

nly illings committed by co-felon or agent

;3ception' shield cases

Pro3imate cause /urisdiction+


6/13

4as the death a but-for cause of the felony

o ;numerated+ $ee degrees

← *egree of Murder /urisdiction+

• "st degree

o ". Malice aforethought murder+

o !. 70illful, deliberate, and premeditated: +

7 No time is too short for a 0iced man to frame in his mind the scheme for murder:

$ome “appreciable time: needs to a lapse 'n"erson Test:

(") Planning actiity, (!) motie, () manner of illing

strong eidence of (")+ ;idence of ! 2"+ ;idence of any+

o !. Committed in a statutorily defined manner+ (e.g. lying in 0ait, poison, etc.)

o !. *uring the commission of an enumerated felony+

• !nd degree

o All murders that are not first degree

←

← %oluntary Manslaughter (mitigated do0n – benefits the * 0here the actus reus is clear)

← Actus Reus' see (")

← Mens Rea' 6ntent to ill 0ith legally ade5uate proocation

• ;lements

o Fegally ade5uate proocation (ob/ectie)

&raditional categorical /urisdiction+


7/13

(") Aggraated assault or battery, (!) mutual combat, () commission of a serious crime

against a close relatie of the * (E) illegal arrest, or (I) obseration of spousal adultery

Modern common la0 /urisdiction+ (minority)

6s the unla0ful proocation such that it is 7calculated to inflame the passion of a

reasonable and tend to cause to act for the moment from passion

rather than reason:

o Do time to cool off' significant lapse of time renders defense inade5uate

4as it earlier in the day+ Prior suspicion confirmed+

Could time 0aiting aggraate the anger more+

o 6n the heat of passion (sub/ectie)' Actor must be in a state of passion at the moment of the homicide

o * acted in response to the proocation' Casual lin, canBt be some other reason tied into the proocation

← 6noluntary Manslaughter

← Actus Reus' see (")

← Pro3imately caused+

← Mens Rea' Do clear distinction bet0een reclessness and 7criminal negligence:

• %ie0ed through the reasonable person, should the * hae noticed the ris

• =actors' 8ross deiation from standard of care of a reasonable person

o Magnitude of the ris' probability and magnitude of harm (Substantial +)

o n/ustifiability of ris

o '$areness of ris& (doesnBt hae to be a0are, should hae been a0are)

← Misdemeanor-Manslaughter

← Actus Reus' $ee (")

← Mens Rea' A misdemeanor resulting in death can proide a basis for an inoluntary manslaughter coniction 0ithout proof of

reclessness or negligence

• Re5uires pro3imate cause


8/13

←

← 'ttempts

← Attempt' Common Fa0

← A&&;MP& 6D "$&! D* *;8R;;++

←

← I"entif! target crime

← Mens rea'

• Ma/ority' specific intent

• Minority' (C)' parity

← Actus reus

• Complete attempt+ *efenses

o Pure legal impossibility' 0hen the la0 does not proscribe a crime for *Bs goalact

o =actual impossibility' 4hen the attempt is complete but the resultconduct is missing

;.g. if all the circumstances are proper but the result (death) does not occur

o Fegal impossibility' 4hen the attempt is completed but there is a circumstance missing

;.g. she is "J (attendant circumstances of being under "K not there

&he property is not stolen (attendant circumstance of being stolen is not there)

• 6ncomplete attempt+

o Pro3imity test' acts must be pro3imate and near to the consummation of the crime

Deed to be in dangerous pro3imity to success or 0hen an act is so near the result that the danger of

success is great

Ri99o' no attempt – looing around for ictim – no ictim, no pro3imity to completion

o ;5uiocality test' An attempt occurs 0hen a personBs conduct, standing alone, unambiguously manifests the

defendantBs criminal intent

Larer' buying a bo3 of matches – only guilty 0hen * lights one and blo0s it out because someone

is 0atching

←

← (egal ← Factual

← 8oods falsely beliees are stolen

← $olicits false testimony that is irreleant

← Contracts debt that is unauthori9ed and inalid

← $hoots stuffed deer, belieing it is real out of

season

← Fetters out of prison, 0arden no0s

← Lribe a he person beliees is a /uror but is not

←

&ries to ote, belieing not yet !"

← Pics an empty pocet

← $hoots into the ictimBs bed 0hich is

empty

← Points gun and pulls trigger, not loaded

← $e3 0ith dead person, beliees no

consent

← &ries to perform abortion, not pregnant


9/13


10/13

• complete' canBt stop because too risy or shift focus after taing a substantial

step

• Dot oluntary if sa0 a police officer or coninced by rape ictim to stop

6nherently nliely Attempts' I.#I(!)' /udge can decided to dismiss or lo0er sentence if the

actorBs conduct 0as so inherently unliely to result in a crime that neither he nor his conduct

represented a danger to society

o I.#"()' Aid to attempt

←

← Mens Rea' I.#"(")' ! mens reas

• ". acting $ith the &in" of culpa)ilit! other$ise re*uire" for commission of the crime +if common la$,malice

aforethought

• !. Result crime+ (")(b)

o Complete' purpose or belief

o 6ncomplete' purpose (unclear)

• Conduct crime+ "(b)

o Complete' purpose

o 6ncomplete' purpose (unclear)

• Circumstance elements' parity

←

← Complicity' Common Fa0

← 6dentify principalBs conduct

← Mens rea'

• Principals conduct' purpose to aid or encourage A1A specific intent to further the criminal action of the principal

• &hen if you 0ant to help the principal succeed, you need to follo0ing mens rea for his actions

• Results' parity' mens rea of the underlying offense


11/13

o ;.g. shipmates criminally negligent – captain is criminally negligent too

o Minority' purpose for results

o Reclessnegligent

Purpose for conduct, parity for result (negligence, recless, no0ledge)

• Conduct' purpose

o ;.g. purposely told shipmates to do 0hat they did – then negligent result happened

o 6ncludes being a fello0 drag racer because you hae purpose to elect the conduct

• Circumstances

o $trict liability' a0areness no0ledge

o ther0ise' parity or purpose

• ;3ception' Datural and probable conse5uences' * is liable for any reasonably foreseeable offense committed by the

person aided or abetted

o Degligence standard for the underlying offense because * could only be negligent the offense 0as going to

occur

← Actus reus' Actually aid or agree to aid in planning or commission

• Physical conduct+

• 6ncite, solicit, or encourage+

• mission+ (assuming * has a duty to act)

• Amount of assistance

o Assistance must in fact assist in the commission of the offense

o 8uilty of attempt if crime is committed but no liability if not attempted

o $ is not an accomplice of P if he performs an act to assist P, but his conduct is 0holly ineffectual

o nce it is determined that $ assisted P, the degree of aid or influence proided is immaterial


12/13

• Causation' $ is guilty of an offense as an accomplice een if, but for his assistance, P 0ould hae committed the offense

any0ay

o *oesnBt matter if the help is really small or 0ould hae happened any0ays

←

← Complicity MPC

← 6dentify principalBs conduct

← Mens rea'

• Con"uct' !.#()(a)' a person is an accomplice of he assists 70ith the purpose of promoting or facilitating the

commission of the offense:

o 6f $, a merchant, sells dynamite to P, 0ith no0ledge that P intends to use the e3plosies to blo0 open a safe,

$ is not an accomplice in the subse5uent crime, unless it 0as his conscious ob/ect to facilitate the commission

of the offense

• .esult' !.#(E)' 0hen causing a particular result is an element of a crime, a person is an accomplice in the commission

of the offense if

o he 0as an accomplice in the conduct that caused the result and

o /arit!' he acted 0ith the culpability, if any, regarding the result that is sufficient for commission of the offense

MA murder only re5uires no0ledge to the result of death

o Reclessnessnegligence result crimes

". *etermine PBs potential responsibility

!. As 0hether $ 0as an accomplice in the conduct that cause the result (rather than asing the

ordinary 5uestion of 0hether $ 0as an accomplice in the commission of the charged offense)

. As 0hether $ acted 0ith the culpability in regard to the result that is sufficient for sommission of

the offense

• Circumstances ' left to interpretation (actor must hae purpose 0ith respect to the proscribed conduct, with his attitude

towards the circumstances to be left to resolution by the courts)

• Datural-probable-conse5uences' no common la0 doctrine

o e.g. suppose that $ aids P 6n the commission of a ban robbery by furnishing P 0ith the details of the ban

securityBs system. Fater, P steals an automobile, 0hich he uses as his geta0ay car in the robbery. Although $ is

an accomplice of P in the commission of the robbery (he aided P 0ith the purpose of promoting that offense)

he is not an accomplice in the commission of the theft' although the theft may hae been a foreseeable

conse5uence of the offense in 0hich he 0as an accomplice, he did not purposely aid in the car theft

← Actus Reus'• !.#(")' nder the MPC, a person is guilty of an offense if he commits it 7by his o0n conduct or by the conduct of

another person for 0hich he is legally accountable, or both


13/13

o a person can be conicted of an offense if he personally commits the crime, or if his relationship to the person

0ho commits it is one for 0hich he is legally accountable

o !.# only coers 0hen the principal actor actually commits an offense (completed offense or attempted

offense)

o I.#"() deals 0ith 0hen there is attempt (no substantial step)

• Dature of Accomplice' $ is an accomplice of P in the commission of an offense if, 0ith the re5uisite mens rea, he (")

$olicits P to commit the offenseN (!) aids, agrees to aid, or attempts to aid P in the planning or commission of the

offenseN or () has a legal duty to preent the commission of the offense, but maes no effort to do so

o $olicitation' !.#()' I.#!(!) proides that solicitation is established een if the actor fails to communicate

0ith the person he solicits to commit the crime

o Aiding'

o Agreeing to aid' $ is an accomplice of P if he agrees to aid P in the planning or commission of an offense. &his

re5uirement is met' e.g. if $ tells P that he 0ill help to plan the commission of the offense, or if he agrees to

proide P 0ith an instrumentality for the commission of the crime, even if S does not fulfill his promise.

o OAttempting to aid' $ may be liable as an accomplice of P in the commission of an offense if he attempts to

aid in the planning or commission of the crime, een if his aid proes ineffectual.

o Relationship bet0een !.# (complicity) and I.#" (criminal attempt)

&his applies 0hen the principal does not mae an attempt

;.g. $ proides P a gun in order to assist p in the commission of a robbery . 6f P performs the

robbery, $ is guilty as an accomplice of P in its commission

$imilarly is P, in the amidst of the robbery, is arrested before he can complete it, P is guilty of

attempted robbery under the CodeBs attempt proision. 6n turn, $ 0ould be guilty of attempt under

the CodeBs complicity statute

Ho0eer, if P is arrested before he taes a substantial step in a course of conduct intended to result

in the robbery. nder these circumstances, P is not guilty of attempted robbery. 6n this case $ is not

accountable under the complicity statue, because the person from 0hom he 0ould derie his liability

committed no crime.

Donetheless, $ is guilty of criminal attempt by his o0n conduct (e.g. not through the doctrine of

complicity), by application of MPC I.#"(), 0hich proides that a person 0ho engages in conduct

designed the aid in the commission of an offense 7that 0ould establish complicit under section !.#

if the crime 0ere committed by such other persons, is guilty of an attempt.although the crime is

not committed or attempted by such other person

6ronic' $ is guilty of attempted robberyN P, the primary participant, is not guilty of attempt←

← Hypos

• Hicks deliberately encourages but Ro0e is deaf (&F' no actus reusN MPC' guilty)

• Hicks part of group of "## cheering (no need to be but-for cause, &FMPC' guilty)

• Ha9el0ood perator ignored but unable to delier (&F' no actus reusN MPC' guilty)

• perator complied, pursuers didnBt succeed (&F' no crimeN MPC' attempt+ guilty)

• Pursuers caught up but resisted by Ross (&F' guiltyN MPC' guilty)

• Lrother ne0 telegraph 0as sent, operator ignored (&F' actus reus satisfied)

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my attack outline

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