outline for criminal law

OUTLINE FOR CRIMINAL LAW

I. JUSTIFICATIONS FOR PUNISHMENT

A. Utilitarian View – First promulgated by Jeremy Bentham, it considers humans to be “risk calculators” that try at all times to maximize their happiness. In the context of criminal law, this is reflected in the deterrent justification for punishment: if the benefit to be gained by committing a crime is outweighed by the possible punishment, the actor will be deterred. In addition to the two views of deterrence, the utilitarian view embraces the idea of rehabilitation.

1. General Deterrence: A criminal is punished to convince the community at large to forego criminal activity in the future. It is the idea of an “object lesson,” or an overall fear of punishment.

2. Specific Deterrence: An alternative view, it holds that punishment is designed to deter the individual criminals from future illegal conduct. There are two methods of specific deterrence:

A.Incapacitation: Keeping the criminal off the street keeps him from committing crimes.

B. Intimidation: upon release, the criminal is deterred by the fear of future imprisonment.

3. Criticisms of Deterrence: Critics hold that because of the improbability of apprehension (14:1 odds), the even more unlikely chance of incarceration (3%), the delay in punishment caused by clogged courts, and the ignorance of criminals as to the punishments, deterrence does not actually work.

4. Rehabilitation: A non-classical view of utilitarianism, it reached its peak in the ‘60’s. In this view, incarceration is best used to reform or “fix” the wrongdoer, not scare him. It has fallen out of favor in recent times, but in the area of juvenile crime, a resurgence has come in the form of “boot camp” style prisons. Critics hold that rehab removes the idea that wrongs deserve to be punished, and place the blame of society instead of the person.

B. Retributivism: The idea is that crimes deserve punishment, b/c the wrongdoer has freely decided to violate societal rules. It has its basis in the idea of moral blameworthiness, and holds that conscious wrongs deserve punishment regardless of any deterrent effect, since humans possess free will, punishment is justified when it is deserved.

document.doc - 1 - Jeffrey L. Loop

II. ACTUS REUS – THE REQUREMENT OF AN ACT

1. Generally: There are two requirements of a criminal offense: an actus reus (bad act) and a mens rea (guilty mind). Punishment is not proper if both these elements are not present. The act must be voluntary and the criminal usually must have notice that it is bad (the idea of “legality”). The absence of an act leaves only thoughts and people can not be punished for their thoughts alone, b/c thoughts are a private sanctuary, are poor predictors of actual conduct, it is impossible to find out if someone actually has evil thoughts, and without an act there is no harm.

2. Act requirement: Proctor v. State - was punished for “keeping a place with intent to sell liquor.” Conviction overturned. Rule: to constitute a crime there must be both intent to commit a bad act and some commission or omission of the bad act, intent alone is not sufficient.

3. THE REQUIREMENT OF VOLUNTARINESS: to be blameworthy, the act must be the result of a conscious decision. Acts can be involuntary for several reasons:

A. Unavoidable Acts:

i. People v. Newton - was convicted under NY gun possession laws when he got on flight in the Bahamas to Luxembourg, but the pilot diverted to NYC when it was found that he had a gun. Upon landing, he was arrested for possession of a handgun. The App. Div. overturned the conviction b/c did not voluntarily come to NY, he was going to Luxembourg.

ii. Martin v. State – convicted of public intox when the cops took him from his house outside to the road where he became boisterous. The conviction was overturned the court said that he was not voluntarily on the road (in public) b/c the cops took him there.

b.Unconscious Acts:

i. People v. Grant - convicted of battery and obstructing a P.O. when he attacked a cop. had psychomotor epilepsy and argued that his acts were the result of automatism and thus not voluntary. The court remanded to determine if he had recklessly caused the autonomic seizure. Rule: Ordinarily, an autonomic seizure that results in a criminal act is not considered voluntary for purposes of a crime, however, it the knew of his susceptibility to such seizures and recklessly placed himself in a situation that would make one occur, he will be criminally liable (the act is the conscious behavior that caused the seizure to be likely). (c.f. MPC § 2.01(1) not all acts in the sequence need be voluntary).


ii. People v. Decina – epileptic had seizure while driving a car and was convicted b/c he knew that he was at risk and drove anyway.

iii. The King v. Cogdon – sleepwalking mother kills daughter, court held that the killing done in a somnambulistic state was not voluntary.

4. THE PROHIBITION AGAINST STATUS CRIMES: the 8th Amendment (“cruel and unusual punishment”) has been interpreted to prohibit punishment for merely having a particular status b/c status is not usually voluntary– punishment is Constitutional only were it is done for conduct.

a. Narcotics Addiction – Robinson v. California: U.S. S.Ct. invalidated a law criminalizing addiction to drugs, saying that addiction is an involuntary illness so there was no voluntary act. The conduct punished must be past conduct, not future conduct. Rule: it is unconstitutional to punish someone for their status.

b.Public Intoxication and Alcoholism- Powell v. Texas (U.S. S.Ct.): was found drunk in public and convicted. The Court held that he was not being punished for the involuntary status of being an alcoholic, but for the voluntary act of going into public while drunk. This limits the involuntary argument of Robinson, b/c the court held that the prohibition on status crimes arose only where there was no act at all.

c. Pregnancy – Johnson v. State : convicted under delivery of a controlled substance law when her baby was born addicted to crack. S. Ct. of Fla. quashed conviction saying that it was not the intent of the legislature to punish mothers under this law. This case might be a status case – pregnant addicted mothers can not help but to “deliver drugs” through the umbilical cord.

d.Homelessness – two conflicting cases addressing similar laws:

i. Pottinger v. Miami – Ct. held that a law punishing a homeless person for eating or sleeping in public was actually punishing them for the involuntary status of homeless b/c eating and sleeping were necessary consequences of having such a status. (contra Powell – acts vs. status).


Model Penal Code: § 2.01(2) defines several types of “acts” that are not considered voluntary:

(a) a reflex or convulsion,(b) a bodily movement during unconsciousness or sleep,(c) conduct during hypnosis or resulting from hypnotic suggestion,(d) a bodily movement that otherwise is not a product of the effort or

determination of the actor, either conscious or habitual. Bu t remember, not all acts need voluntary. §2.01(1)

ii. Joyce v. City of San Francisco – essentially same law at issue, but Ct. denied injunction against enforcement following the logic of Powell, it held that while homelessness may or may not be status but the law punished only the acts of eating, sleeping, etc.

5. OMISSIONS AS ACTS : Ordinarily, not doing something is not criminal even if it means that a harm results. This is because in general people do not owe any duty to one another absent special circumstances. Note that there is a distinction between a moral duty and a legal duty, and some would argue that a moral duty should be sufficient to punish. The circumstances that give rise to a duty to act so that failure to do so may result in criminal liability, occur in four contexts:

a. A statute imposes a duty to care for another – drivers must stop at scene of accident, etc.

b.A special relationship exists between the parties ( a C/L duty) – parent child, husband wife, etc.

c. A contractual duty exists – babysitter (implied K), doctors to patients, etc. (see Jones v. U.S.).

d.Omissions flowing from an act:

i. Creation of a Risk – where a person purposefully or even innocently caused injury or creates a risk that results in injury, has a C/L duty to aid the injured party and failure to do so may result in criminal liability.

ii. Voluntary Assistance – One who voluntarily begins to render aid to someone in peril, has a duty to continue the aid. At least if subsequent omission of the aid would put the injured person in a worse position, such as secluding the victim from others who could render aid. This may arise even if the assisting person had nothing to do with the injury.

6. POSSESSION AS AN ACT: Possession of proscribed materials may constitute a crime in itself – usually it must be proven only that the knew of the existence of and had control of the contraband for a long enough period to be able to terminate the possession. (see MPC § 2.01(4)). Possession is in inchoate crime (an incomplete crime), there are two kinds:

a. Actual Possession: actual dominion or control over the item. (State v. Palmer (burglary tools)).

b.Constructive Possession: Control over the premises where the item is located, the ability to exercise control, and the intent to do so. (Earle v. U.S. ( found asleep next to a room full of crack); People v. Valot (rented motel room where drugs were found – guilty even though not present)).


7. THE LEGALITY PRINCIPLE: States that some conduct may be immoral, harmful or both and some conduct may be criminal. However, just because some conduct is “wrong” in the moral sense, doesn’t make it criminal. In the American legal system, there is “no crime without a law, and no punishment without a law.” Punishment is only justified for past, bad, conduct, specified, in advance, in a statute. The criminal conduct must be defined so as to give notice of its illegality – it is a requirement of Due Process and also implicates the Ex Post Facto Clause b/c the crime is essentially defined after the offense. The legality principle is implicated in two contexts – common law crimes, and vague statutes (lack of specificity). But note, the inclusion of a “scienter” requirement can save an otherwise vague law.

a. Common Law Crimes: very few states recognize or allow C/L crimes, b/c of the legality principle (PA is a notable exception). C/L crimes allow prosecution of conduct that the state feels is bad, and for which there is some precedential basis for, but is not proscribed in a statute.

i. Commonwealth v. Keller (PA); convicted of the C/L crime of “indecent disposal of a dead body” and the conviction was upheld. C/L Crimes Rule: the C/L may be used to punish as a misdemeanor any act that directly injures or tends to injure the public to such an extent as to require state interference. The proper disposal of a dead body was held to be fundamental duty in civilized society.

ii. Keeler v. Superior Court – California rejected C/L crimes as violating D/P requirement of notice. Keeler was convicted of murder of his wife’s unborn child when he kicked her in the belly. The prosecution went on the theory that the fetus was a “human being” under the murder statute. The S. Ct. of CA overturned the conviction. Rule: Subject to the 8th Amendment limitations (on status crimes) the power to define crimes rests solely with the legislature, courts can not create new crimes by enlarging a statute by inserting terms or giving terms a false or unusual meaning. A fetus was not defined as a human being by the legislature or the U.S. S. Ct. so killing it was not murder.

b.Void for Vagueness Doctrine

i. Ricks v. D.C.: convicted under vagrancy law that made it illegal for one who led a “immoral and profligate life” to “wander the streets at night.” The D.C Cir. held the law void for vagueness b/c it failed to give notice of what vagrancy was. Rule: Criminal statutes are unconstitutionally vague unless the statutory language conveys sufficiently definite warnings as to the proscribed conduct when measured by common understanding and practices.


ii. People v. Van Alstyne: convicted of pot selling and attacked law on the ground that it specified only one kind of pot. The court upheld the conviction saying that common understanding and the intent of the legislature made it clear that all forms of pot were prohibited.

iii. The Rule of Lenity – States that when a criminal statute is subject to conflicting reasonable interpretations, but is not sufficiently vague so as to be void, it is to be construed narrowly against the government. This can result in a frustration of legislative intent and many states have abandoned it. The MPC does not recognize the principle, saying that statutes should be interpreted according to their fair import” and in a manner that furthers the “general purposes of the code” and the particular provision. (see MPC § 1.02(3)).

III. MENS REA – THE REQUIREMENT OF A GUILTY MIND

A. Generally: a guilty mind is required for the same reason a voluntary act is – it is necessary to justify punishment for moral blameworthiness. Bad thoughts come in two varieties: the desire to harm others or violate some social duty or the disregard for the welfare of others or some social duty. In some instances a crime may be a strict liability crime, however, and is punished whether or not the had any mens rea.

B. Strict Liability: Liability w/o fault. At early C/L many crimes were strict liability, but the modern trend is to require a mens rea element. The MPC says that only “violations” are punishable as strict liability offenses (fines, forfeiture, etc.), but some are still recognized.

1. U.S. v. Balint (1922) - convicted of selling smack and coke w/o registering which was a strict liability crime (no mens rea required). They claimed that they did not know the drugs were on the controlled list, but the court held that there was a public danger posed by drugs so in furtherance of the public betterment, strict liability was appropriate.

2. U.S. v. Dotterweich (1943) - president of drug company was convicted of supplying repackaged drugs in violation of FD&C act. claimed he had no knowledge of the acts. The Court held that strict liability was appropriate b/c of the dangers of adulterated goods and “[i]n the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger.”

3. U.S. v. Park (1975)- president of a food co. was found criminally liable for allowing spoiled food to be shipped interstate commerce. The Court held that the public interest in the purity of food supported strict liability and that the law imposed an affirmative duty to prevent violations. However, they also noted that a could avoid liability if he could


prove that he was “powerless” to avoid the violation (people are not required to do the impossible).

4. Morissette v. U.S. - convicted of knowingly converting govt. property when he sold expended artillery shells found on a military base.. Rule: If the crime is a codification of C/L crime, intent is an inherent element and will be required even if not expressly stated in the statute. But, if it is a new offense (regulatory or public welfare) intent will not be inferred and is only required if expressly stated in the statute.

5. X-citement Video – Court overturned a conviction for trafficking in child porn b/c it held that the knowledge requirement attached to the age of the depicted people and the ’s proved that they believed that they were not minors.

C. CATEGORIES OF CULPABILITY

1. The Common Law Levels of Culpability :

a. “Intentionally” – one intentionally causes harm if it his desire to cause the act or he acts with the knowledge that the harm is virtually certain to occur. (N.B. intent ≠ motive).

i. Specific Intent – a limited class of crimes are “specific intent crimes.” These require not only the doing of an act, but also the doing of it with a specific objective. These are also referred to as “compound crimes.” The existence of the specific intent can not be inferred from the doing of the act like it can in general intent crimes. Examples of specific intent crimes: solicitation (intent to have the person solicited commit the crime); attempt (intent to commit the crime); conspiracy (intent to have the crime completed); first degree murder (premeditation); assault (intent


Alexander’s Framework for Determining When Strict Liability is Appropriate:

Courts will consider:

1. The severity of the punishment (greater penalty less likely to be S/L)

2. Is there an expectation of stringent public regulation? ( is it a malum in prohibitum or malum in se crime)

3. Concerns about public safety (strong health and public safety concerns about the conduct at issue).

to commit a battery); larceny and robbery (intent to permanently deprive....); burglary (intent to commit a felony in the building).

ii. General Intent – Almost all crimes require general intent, which is an awareness of all factors constituting the crime, i.e. the actor is aware that he is acting in the proscribed manner (not necessarily that it is illegal, however). The defendant need not be certain of all circumstances, only that there is a high probability that they exist. General intent may be inferred from the doing of the act.

Note: Another view of specific and general intent – holds that general intent is the purposeful or knowing doing of some act, that would naturally and probably cause a socially harmful result. Specific intent requires further purpose to achieve the result or knowledge that it would result

iii. Transferred Intent – A defendant can be liable under this doctrine if where he intends to do the harm that is actually caused, but to a different person than is harmed. Defenses and mitigating circumstances usually also transfer. This does not apply to attempt.

iv. Motive vs. Intent – Motive is the reason or explanation for the crime, it is not the intent. In general, motive is immaterial to substantive criminal law.

b. “Knowingly” or “With Knowledge” – a person acts knowingly if he is aware of the fact or correctly believes it exists. Some jurisdictions hold a person knowing if he is aware of a high probability that the fact exists and deliberately fails to investigate to determine if it in fact does or not. (c.f. MPC § 2.02(7)).

c. “Willfully” – has many meanings. It is often used as a synonym for intentionally. Some other definitions include done with a bad purpose, evil motive, intentional violation of a known legal duty or purpose to disobey the law.

d. “Recklessness” – at early C/L it was a synonym for criminal negligence, but today even in C/L jurisdictions it is usually a higher standard. It occurs when the actor consciously disregards a substantial and unjustifiable risk of harm.

e. “Criminal Negligence” – higher standard than ordinary (tort) negligence, it occurs when the actor’s conduct constitutes a gross deviation from the standard of reasonable care. He should have known of a substantial and unjustifiable risk...N.B. some C/L jurisdictions only require ordinary negligence and some do not recognize liability for negligence at all.


N.B. the MPC and many modern jurisdictions no longer recognize specific and general intent.

f. Malice – intentionally or recklessly causes a social harm, note it is not as restrictive as specific intent.

g. Regina v. Faulkner: was stealing rum in his ship and accidentally started a fire and destroyed the ship and cargo. Judge Fitzgerald refused to transfer the intent from the theft to the arson. According To Fitzgerald, the could only be guilty if he intended to do the very act, or the fire was a natural and probable consequence of the theft (it wasn’t), or he knew that the fire was probable.

2. MPC § 2.02(2) Kinds of Culpability Defined: “[Except for violations punishable under § 2.05 and 1.04(5)] a person is not guilty of an offense unless he acted purposely, knowingly, recklessly, or negligently, as the law may require, with respect to every material element of the offense. (Chart adapted from ROBINSON AND GRALL):

A person acts [insert culpability level] with respect to [type of objective element] when:

OBJECTIVE ELEMENTS

C/L ANALOGY CULPABILITY LEVEL

CIRCUMSTANCE RESULT CONDUCT

“specific intent” Purposely

He is aware of such circumstances or hopes they exist

(subjective)

It is his conscious objective ... to cause such a result

In is his conscious object to engage in conduct of that nature

“specific intent” Knowingly

He is aware that such circumstances exist

(subjective)

He is aware that it is practically certain that his conduct will cause such a result

He is aware that his conduct is of that nature

“general intent”; “malice”

Recklessly

(Default mens rea under MPC §2.02(3))

He consciously disregards a substantial and unjustified risk that the material element exists

(subjective)

He consciously disregards a substantial and unjustifiable risk that the material element will result from his conduct

“general intent”; “negligence”

Negligently

He should be aware of a substantial and unjustifiable risk that the material element exists

(subjective)

He should be aware of a substantial and unjustifiable risk that the material element will result from his conduct

3. Higher Degree of Fault : MPC § 2.02(5) and 2.02(8) state that a higher mens rea automatically satisfies a lower requirement. Thus if recklessness is required but the defendant acted purposely or knowingly, he will be liable.


4. Willful Blindness – U.S. v. Jewel (the “Ostrich Syndrome”): U.S. S. Ct. held that ’s willful avoidance of knowing that there was pot in his car was the same as knowledge for purposes of mens rea element. (C.f. MPC § 2.02(7): when knowledge of the existence of a particular fact is an element of an offense, a person has knowledge if he is aware of a high probability that the fact exists, unless he actually believes it does not).

5. MPC § 2.02(4) Prescribed Culpability Requirement Applies to all material Elements: If each element is not distinguished by separate culpability requirements, the culpability defined as sufficient for the commission of the offence will apply to all, unless a contrary intent appears.

In other words, where there is only one mens rea term in a provision, it presumptively applies to all of the elements unless it appears from the grammatical structure that it does not. If it appears that it does not attach, and no mens rea is defined, the MPC default is recklessness. Generally, mens rea terms carry forward only, unless the grammatical construction appears otherwise.

This is called the Grammar Rule for staturory construction.

Example:

It shall be a crime to purposely draw upon, or otherwise mark, state property,

without prior authorization, with any indelible substance, knowing or recklessly

believing it to be so....

D. MISTAKE AS A DEFENSE NEGATING AN ELEMENT OF THE CRIME:

1. Mistake of Fact: Under MPC and in most C/L jurisdictions a mistake of fact will be a valid defense only if it negates a mens rea requirement of any element of the offense. C.f. MPC § 2.04(1). The simplest example is taking someone else’s umbrella, believing it is yours, negates the intent to steal.

a. State v. Guest : convicted of statutory rape, but claimed that he honestly but mistakenly believed she was 18 (yeah, right). Alaska held that statutory rape did not have age as strict liability element as most jurisdictions do, and the court held that the age of the girl had the mens rea of knowledge, so that an honest and reasonable mistake as to the age of the girl negatives the mens rea.


b. People v. Ryan : convicted of “knowingly and unlawfully possessing 625 mg of a hallucinogen. has “shit load” of ‘shrooms, and they proved to have far more of the active hallucinogen than required. claimed that he did not know how much of the actual illegal substance was in the ‘shrooms, so therefore he lacked the knowledge required. The Court agreed holding that as knowledge was the only mens rea element set out in the statute, it applied to every material element and therefore knowledge of the weight was required. The court noted that as every drug offence had the same language it could not infer a strict liability requirement to the weight.

2. Mistake of Law: “Ignorance of the law is no excuse.” At common law and under the MPC this is true b/c a mistake of law does not ordinarily negative the mens rea (as a mistake of fact may). The MPC tracks the common law pretty closely in this area. (See Baker, claimed she did not know selling fake Rolexes was illegal but didn’t matter b/c he knew he was selling them and he knew they were fake) There are three main exceptions to the rule:

a. Reasonable Reliance Doctrine (“Entrapment by estoppel”)– a person is excused for committing a crime if, at the time of the offence, he reasonably relied on an official statement of the law, which was later determined to be erroneous, obtained from a person or public body with the responsibility of the interpretation, administration, or enforcement of the law in question. (E.g., judges, AG’s, police officers; not private attorneys, clergy). C.f. MPC §2.04(3)(b) (requires that the official statement be contained in a statute, judicial decision, administrative order, or other official interpretation). Personal interpretations, even reasonable are not exculpatory, even when a peace officer makes them (see Marrero).

i. Commonweath v. Twichell : The Christian Scientists who let their kid die. The Court remanded for NT b/c the ’s had relied on an AG report that the believed meant that the child neglect law did not apply to their religion (they were wrong but reasonable in their belief).

ii. People v. Marrero : was a federal corrections officer who was convicted for carrying an unlicensed weapon. The statute in question exempted peace officers including “correctional officers of ... any penal correctional facility” but the statute was construed at appeal the App. Div. held that federal officers were not included. The Ct. App. aff’d saying that a misreading of the law was not a defense, b/c it was not a reasonable reliance on an official statement. The dissent argued that the majority ignored the Lenity Rule and that a good faith mistake based on the plain meaning of statue should be a defense.


b. Fair Notice – At early C/L everyone was presumed to know the law, but in Lambert v. California the S. Ct held that if a law is not malum in se and punishes passive conduct (a duty to act based on status), and there is nothing to alert a person that an unusual law might pertain to him, he may assert a valid D/P defense. In Lambert, the was a convicted felon who moved to LA and was late convicted of failing to register himself.

i. MPC § 2.04(3)(a): a who believes that his conduct is not illegal states a defense when he shows that the law governing the offense is not known to him and has not been published or otherwise made reasonably available prior to the conduct charged.

c. Mistake of Law Negatives a Mens Rea Element –this is very rare and generally occurs only when the legality of the conduct is an element of the offence. Watch out for “willfully” language b/c one definition is “a violation of a known legal duty.” (See Cheek).

C.f. MPC § 2.04(1) “Ignorance or mistake as to a matter of fact or law is a defense if: (a) the ignorance or mistake negatives the mens rea of the material elements of the offense; or (b) the law provides that knowledge of the law is a defense”

i. Liparota : the food stamps case. “knowingly .... unauthorized manner” held to be mens rea for legality of conduct – he had to know it was unauthorized to sell them at less than face value.

ii. Cheek v. U.S.: the S.Ct held that knowledge of illegality was implied in the tax laws b/c it required “willful” violation (defined as violation of known legal duty) but it upheld the conviction b/c a good faith belief in the unconstitutionality of a law is not the same as an absence of knowledge of its prohibitions. This appears to be a narrow holding limited to tax laws b/c of their complexity and the language of the statute.

iii. U.S. v. Moncini : convicted of mailing child porn to the US from Italy. He claimed that b/c he did not know it was illegal in US (it wasn’t in Italy) he could not have the mens rea. The court held that knowledge only attached to mailing and depictions and that the illegality was not an element (contra Cheek). Further, the court noted that everyone knew that child porn was heavily regulated so he should have been on notice. Rule: Where the had the requisite mens rea for the commission of the offense and only claims that he was unaware of its illegality, the mistake of law defense is seldom recognized.


E. INTOXICATION AS A DEFENSE NEGATING AN ELEMENT OF THE CRIME:

1. Common Law – Voluntary Intoxication (by far the most common) is a defense only to specific intent crimes, that is if at the time of the offense he was incapable of forming, or did not in fact form the specific intent to commit the offense. Note, to be incapable of forming a specific intent, one has to be extremely drunk. Voluntary intoxication is not a defense at all to general intent crimes at C/L. Also note that a modern trend is to eliminate the defense all together.

a. Involuntary Intoxication – where one becomes intoxicated by coercion or mistake (or maybe a mickey finn). At C/L it is a defense to both specific intent and general intent crimes. However, as one court noted it is virtually non-existent.

b. “Unconsciousness :” Note that a claim that a defendant was so drunk that he was unconscious and therefore his acts were not voluntary will fail b/c he engaged in voluntary conduct in getting drunk.

2. MPC § 2.08 . Intoxication: the Code only recognizes voluntary intoxication as a defense where it would negative an element of the crime, and as to crimes requiring recklessness, if b/c of voluntary intoxication the defendant is unaware of a risk that he would have been had he not been drunk, his unawareness is immaterial (b/c he got drunk and made himself unaware). The Code also allows an affirmative defense for involuntary intoxication and “pathological” intoxication (where the actor is unusually predisposed to intoxication and is unaware that he is, and the intoxication is grossly excessive in degree to the amount ingested)

a. State v. Cameron – Cameron was convicted of agg assault; possession of a weapon; fourth degree resisting arrest. She argued that she should have been allowed to present an intoxication defense. NJ S.Ct. disagreed b/c she wasn’t drunk enough, she was able to speak and answer questions.

i. Rule : Intoxication is a defense only to crimes requiring either purpose or knowledge and not to those requiring only recklessness or negligence. (B/c if the defense is an inability to form an intent, it cannot negate recklessness or negligence b/c no intent is required. C.f. the common law distinction between specific intent and general intent).

ii. Rule: The MPC definition of intoxication contemplates a condition by which the mental or physical capacities of the actor ... are so prostrated as to render him incapable of knowing or purposeful conduct. (This means really, really drunk and it is rare that a court will find a person to be sufficiently intoxicated). The defendant has the burden of producing evidence that he was sufficiently drunk.


iii. Rule: Where a crime has different grades of an offense, including one that imposes liability for recklessness, an intoxication defense to a degree requiring purpose or knowledge will only reduce the degree of the crime to that requiring recklessness.

Note: If the statute specifies both knowledge and a lower mens rea such as negligence or recklessness, for conviction of the same crime, a defendant is not entitled to the defense of intoxication b/c he could be convicted under the lower standard. (From Hypo).

b.Montana v. Egelhoff – The case of the drunken mushroom pickers. One of the group of three drove his truck into a ditch and shot the other two in the head. His BAL was .36 when arrested. He was convicted of deliberate homicide (req. purpose or knowledge). Montana does not have an intoxication defense and the appealed claiming a denial of the defense violated D/P. The US Supremes disagreed.

Rule: There is no fundamental right under the D/P clause to allow the admission of evidence of intoxication in order to refute a mens rea element of a crime. (Thus states are free to abolish the defense altogether). J. O’Connor argued in dissent that the abolition of the defense was an unconstitutional reduction in the prosecution’s burden.

IV. INTENTIONAL HOMICIDE

A. COMMON LAW MURDER : Most common law jurisdiction had degrees of murder (contra MPC where murder is a unitary crime). At C/L there are four categories of murder, which was defined as “the killing of another human being with malice aforethought.”


NOTE: PRESUMPTIONS IN JURY INSTRUCTIONS – FRANCIS V. FRANKLIN

The issue is to what extent may a jury be allowed to infer mens rea from the fact proven. The tension is between the constitutional requirement that the prosecution prove every element of an offence, and the difficulty of proving a mental state. In Francis, (the escapee shot the homeowner through the door when it slammed in his face) the court defined what is permissible and what violates D/P:

1. Mandatory, Irrebutable Presumption – “if you find that Franklin pointed the pistol at the door and it fired, YOU SHALL PRESUME he intended the natural and probable consequences.... This is unconstitutional b/c it eliminates the need to prove mens rea.

2. Mandatory, Rebuttable Presumption – “ If you find that pointed the gun at the door and it fired, IT IS PRESUMED that he intended the natural and probable consequences, UNLESS THE PRESUMPTION IS REBUTTED BY THE . Unconstitutional b/c it shifts the burden to the of disproving mens rea.

3. Permissive Inference – “If you find.... YOU MAY PRESUME that he intended the natural and probable consequences of this act. Any presumption may be disproved by the . This is O.K. b/c it leaves the burden on the prosecution.

TYPE OF MALICE CATEGORY DESCRIPTIONMPC §

ANALOGY

“Express malice”Intent to Kill Murder (1° murder)

When the killer intended to cause death 210.2(1)(a)

“Implied malice”

Intent to Cause Serious Bodily Harm Murder (2° murder)

When the killer intended to cause serious bodily harm and death resulted

N/A

Depraved Heart Murder (2° murder) Unintentional

When the killer acted with extreme recklessness by consciously disregarding a substantial risk where the quality of that risk is immoral or unworthy (“acted with an abandoned an malignant heart”)

210.2(1)(b)

Felony Murder (usually 1° murder) Unintentional

When the killing occurred during the commission of certain enumerated felonies (BARRK).

210.2(1)(b)

B. Model Penal Code Murder : MPC § 210.2- Under the Code, murder is a unitary crime, there are no degrees of murder, and all murders are first degree felonies. The C/L requirement of ‘malice aforethought’ is eliminated, with the result that one form of implied malice, intent to cause serious bodily harm murder is eliminated b/c it will fall under either the “extreme recklessness” category of murder, or a lesser crime such as manslaughter.

§ 210.2

(1) Except as provided in section 210.3(10)(b) [voluntary M/S extreme emotional disturbance], criminal homicide constitutes murder when:

(a) it is committee purposely or knowingly; or

(b) it is committee recklessly under circumstances manifesting extreme indifference to human life. Such recklessness and indifference are presumed if the actor is engaged or is an accomplice in the commission of, attempt ..., or flight [from a commission or attempt of] arson, burglary, robbery, rape, kidnapping, or felonious escape.

B. INTENT TO KILL MURDER- PREMEDITATED MURDER : At C/L in states that grade murder this is usually first degree murder. It is also referred to as “the deliberate killing of another” where “deliberate” is meant “to deliberate” or to calculate and plan, i.e., to premeditate. A defendant premeditates when, before acting, he gives thought to the idea of killing and reaches a definite decision to kill – he turns it over in his mind, “reflects” or “gives it a second thought” and goes ahead any way).

1. Proof of Premeditation: The prosecution must show that the defendant had:

a. An opportunity to premeditate (time to premeditate), and

b.Evidence that he in fact premeditated.


C. The Opportunity to Premeditate – U.S. v. Watson: was convicted of premeditated murder when he ran from police and when confronted in a house by a PO, struggled with him and subdued the officer. then took the officer’s gun and after the officer told him it wasn’t worth it, shot the officer. Rule: For there to be a finding of premeditation, some appreciable time must pass between the formation of the design to kill and the actual execution of that design. However, the time need not be long, thus the prosecution need not show a lapse of days, hours or even minutes ... it may be a brief as a few seconds. (the dispositive factor is whether it was sufficient to ‘turn it over in his mind”).

D. Evidence of Premeditation : The Court in Watson also outlined some evidence that would support the charge of premeditation:

1. Direct evidence of planning (maps, victim’s schedule, etc.).

2. Evidence of prior threats to the victim

a. Verbal or written threats

b.Stalking or other threatening behavior

3. Evidence of a motive suggesting a purposeful or reasoned killing

a. Revenge (Hypo – Jones)

b.Disputes over money;

c. Insurance or other gain resulting, etc...

4. The circumstances of the killing

a. Interruption and continuation of the killing (what got Watson)

b.An intricate method of killing (ritualistic killing)

5. Bringing the murder weapon to the scene of the killing.

6. Lack of provocation by the victim. (Hypo – Richardson).

C. VOLUNTARY MANSLAUGHTER: At C/L also called “heat of passion murder,” or “an intentional killing during a heat of passion.” Under the Code it is included in §210.3(b) “extreme emotional disturbance.” A finding of “heat of passion” will mitigate intentional murder to voluntary manslaughter. Note that the Code also includes reckless murder (not reckless indifference or depraved heart) in the M/S section (it is also a unitary crime, no distinction between voluntary and involuntary). The most common application is “heat of passion.”

1. “Heat of Passion” or “Extreme Emotional Disturbance” has two elements:


Note: Motive is not an element of the crime and in pure terms is irrelevant to the substantive law, but it is critical in terms of proving premeditation.

a. Adequate provocation

i. Objectively adequate – would a reasonable person be provoked. (but contra MPC)

ii. Subjective adequacy – the actor was actually provoked.

b. Insufficient time to cool – there is no interval between the provocation and the killing that would allow the person to cool.

i. Objectively insufficient – a reasonable person would not have cooled,

ii. Subjectively insufficient – the actor did not in fact cool.

People v. Walker - convicted of murder when the victim started a fight after taunting and friends. knocked him out and then slit attackers throat with his own knife. The entire altercation lasted 6 – 15 minutes. The Appellate Ct. remanded for NT on charge of vol. M/S because they found it was a continuous affray, the mutual combat did not stop, so no premeditation despite the fact that the victim was unconscious, defendant was still agitated.

2. Traditional Common Law Categories of Adequate Provocation: the traditional C/L was very rigid in what could constitute provocation sufficient to mitigate an intentional killing to voluntary M/S:

a. Physical assault,

b. Sudden combat (sudden melee),

c. Witnessing the actual adultery of one’s spouse (at early C/L this would completely exculpate in some jurisdictions),

d. Unlawful arrest,

e. Sexual assault on a close relative,

f. Words alone were not sufficient provocation except – if the words described something that if witnessed would be sufficient, then those words would suffice. (E.g. “Eat me, prick!” is not sufficient, but “ I banged your wife last night,” would be).

3. MODERN TREND IN ADEQUATE PROVOCATION AND THE REASONABLE PERSON STANDARD: is to relax the rigid categories of provocation and broaden them. Additionally, the trend is to take into account the attributes of the actor when determining the objective sufficiency of the provocation (c.f. MPC).

a. Rowland v. State (1904): walked in on his wife after she had just committed adultery and when he went to shoot the paramour, shot his wife instead. T/C found him guilty of


murder, the Miss. S. Ct. held the proper charge was voluntary M/S and remanded. Note: this is a departure from the traditional rule, where the adultery had to be actually seen, the modern trend is to allow the provocation to be sufficient if the lovers are found just after coition, or even of the belief of adultery is honest and reasonable but mistaken (see Price v. State)

b. People v. Berry: The case of the amorous Yako. Berry killed his wife Rachel, after she taunted him with pictures and stories of her lover Yako, whom she had met in Israel soon after their marriage. was to meet with Rachel to talk and was in her apartment and slept overnight waiting for her. When she returned she began screaming at him at he killed her. Rule: The word “passion” in “heat of passion” murder need not be only rage or anger, but may be any violent, intense, high-wrought or enthusiastic emotion and it may be brought on over a period of prolonged taunting and provocation.

c. The MPC in 210.3(b) Manslaughter is “a homicide that would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such ... shall be determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be.” A subjective standard? Not quite, the comments say that only physical attributes such as age, race, handicaps, and mental capacity are considered not any idiosyncratic moral values.

4. The “Cooling Off” Period:

a. At common law, a court could examine the amount of time lapsed and determine as a matter of law that the defendant had cooled off if an unreasonable amount of time had passed. Modern trend is to leave it to the jury. As noted, the time must be objectively insufficient (a reasonable person would not have cooled), and subjectively insufficient (the defendant did fact cool off).

Ex parte Fraley: Decedent had been acquitted of murdering ’s son 9 or 10 months prior to being killed by , who sought heat of passion instruction. Ct. refused.

Rule: (Majority View) The question is not alone whether the defendant’s passion did in fact cool, but also whether there was sufficient time in which the passion of a reasonable man would cool. If the passion of the actor did


Cumulative Provocation

Contra State v. Gounagias: “Provocation which does not cause instant resentment but which is only resented after being brooded upon is not adequate...” (the sodomy bragging case). Old C/L.

Sufficient time to cool as a “matter of law.”

in fact cool, which may be shown by the circumstances (planning, conducting business, etc.) the length of time is irrelevant. However, if it did not in fact cool, yet such time intervened so that the passion of the average person would have cooled, then there is no reduction to M/S.

b. Under the MPC the sufficiency of the cooling period is measured from the viewpoint of the actor in the circumstances, as he believes them to be. (See 210.3(b)). In addition, the commentary recognizes that in some cases the passion or emotional disturbance may increase over time.

5. Cultural Relativism – People v. Wu : For cultural reasons, Helen Wu, a Chinese national, feared the stigma of an illegitimate child and believed she could only protect the child in the afterlife (a common Chinese belief). She killed her son and tried to kill herself but lived. At trial, she sought to have cultural evidence admitted to show its bearing on provocation. The Court held that such factors were not “idiosyncratic moral beliefs” and allowed the testimony. The Court also noted that she may have been in a “fugue” state, which would make her actions unconscious and therefore involuntary.

SUMMARY: C/L AND MPC VOLUNTARY MANSLAUGHTER

Common Law MPC

Provocation

“Heat of passion”

1. Objectively adequate (traditionally the categories; modern is looser)

2. Subjectively adequate – actor was in fact provoked

“Extreme mental or emotional disturbance” Judged from the viewpoint of the actor in the circumstances, as he believes them to be. No categories, may be cumulative provocation, and manifested by any ‘high-wrought’ emotion. Cultural differences may be relevant.

Cooling Off Period

1. Objectively insufficient time to cool.

2. Subjectively insufficient – did not in fact cool. (But if did not cool w/in reasonable time, no reduction)

Judged by viewpoint of actor in circumstances, as he believes them to be.

V. UNINTENTIONAL HOMICIDE

A. INVOLUNTARY MANSLAUGHTER and NEGLIGENT HOMICIDE : A C/L distinction, no separate category under MPC. It is usually “reckless murder” although some states include negligence in the definition, either explicitly or by defining recklessness to mean “gross negligence” (see Welansky) or even ordinary negligence (see Williams). The important thing to


remember is that the mens rea for involuntary M/S varies greatly from state to state. The Code has only one section on M/S that includes reckless homicide (210.3). Negligent homicide is treated as a separate offence (210.4).

1. Commonwealth v. Welansky (Mass.): state defined invol. M/S as “willful, wanton, or reckless” conduct resulting in death. The court defined this as a “conscious disregard of a substantial risk that the actor knew or should have known” thus including “gross negligence.” The was convicted of involuntary m/s because of gross negligence in operating his club (the Cocoanut Club in Boston) so that a fire killed hundreds of people.

2. State v. Williams (Wash.): Parent s failed to get kid’s tooth fixed b/c they were afraid that he would be taken away. The kid died of an infection and the parents were convicted of involuntary m/s. The court held that the standard was ordinary negligence, what they called failure to exercise reasonable prudence and ordinary caution.

3. Physicians : at least one state (Fla.) holds that if a doctor is grossly incompetent, or inattentive, or displays criminal indifference to the welfare of his patients he may be guilty of negligent homicide. (Gian-Cursio v.State).

4. Hazing: Texas (along with many others) has a statute that makes hazing that causes an unreasonable risk of harm to be the basis of either negligent homicide or involuntary manslaughter.

5. Vehicular Homicide: Many states have laws that punish for those who accidentally kill while driving drunk. Most create a separate category of liability below involuntary m/s and several below negligent homicide. The MPC includes vehicular homicide under negligent homicide. (210.4).

i. People v. Hansen: convicted of “gross vehicular homicide” under California law which made driving drunk and committing a traffic offense a crime. He was convicted under this statute b/c he wasn’t wearing a seatbelt.

B. RECKLESS MURDER

1. “Depraved Heart” Murder : At common law murder done with “an abandoned and malignant heart”, “a wicked disposition”, “hardness of heart”, “a mindless disregard for social duty”, it requires a mens rea less than knowledge and is unintentional but because of the circumstances surrounding the murder it gets kicked up to murder. Under the Code, it is included in the section on murder 210.2(1)(b).


a. Mayes v. The People (1883): threw a beer glass at his wife while she was carrying an oil lamp which spilled and burned her to death. made no effort to help. Rule: “An act done with an abandoned and malignant heart [read extreme recklessness manifesting indifference to human life] resulting in death, is murder, even if death is unintended.”

b.People v. Protopappas : The case of the dentist from hell. knew that victims were overly sensitive to anesthesia but gave them too much anyway and then failed to give any CPR or call anyone to help. They died. He was convicted of depraved heart murder.

c. Berry v. Superior Court : used a killer pit bull to guard his weed, man. Told neighbors that dog was deadly but that he had a fence. A toddler got through the fence and went to pet the doggie, whereupon it ate him. was convicted of depraved heart murder

d.People v.Watson : had a .23 BAL and was driving 84 mph in a 35 zone. He hit and killed another driver, just after he had narrowly missed another. The Court rejected the idea that the vehicular homicide law precluded a murder charge and convicted him of depraved heart murder.

C. FELONY MURDER : A murder occurring during the commission or attempt to commit or flight from a felony (usually). This doctrine presumes malice on the basis of the commission of a felony dangerous to human life, and automatically upgrades any killing to first degree murder. At C/L this was an expansive doctrine, but b/c it tended to sweep in many people who did not have the requisite mens rea, modern courts have sought to limit its application by causation principles, limiting it to certain dangerous felonies, and the principle of res gestae. Prosecutors love this rule because no additional proof is required for the murder conviction, and it is usually first degree murder. At least one Supreme Court has abolished the FM rule outright, Michigan.

1. Dangerous Felonies : Most jurisdictions limit first degree felony murder to killings occurring during the commission of certain enumerated felonies. Generally, burglary, assault, arson, rapes, kidnapping


Cornwell’s Framework for Looking at Depraved Heart Murder:

1. How substantial was the risk disregarded? (need “gross recklessness”)2. Is there any social utility in the conduct or is the conduct immoral?3. What is the actor’s subsequent conduct? (did he try to help the victim, did he

ignore him. Some states hold that this is irrelevant.)

(BAARK). Some include deviant sexual intercourse by threat of force. However some analyze each case to determine if the felony is inherently dangerous to human life.

2. Causation : In most jurisdictions, the killing must be foreseeable at the time of the commission of the offense. In a few such as California, the felons are strictly liable for all deaths proximately resulting from the commission of the crime.

a. Proximate Cause Approach - People v. Stamp (California): s robbed victim’s place of business. 20 min after the robbery, victim had a heart attack experts said was caused by stress of the robbery. ’s convicted of first degree felony murder. Rule: (Minority) If a felon, in the commission of a dangerous felony, sets in motion a series of events resulting in death, unless there is an efficient intervening cause, the felony is the proximate cause of the death and felons are guilty of felony murder. The death need not be intentional or foreseeable. (The Court emphasized that the felon must take his victim as he finds him).

3. Res Gestae and the reach of the FM Rule : Literally “things done,” this doctrine limits liability to deaths caused in furtherance of the felony, either attempting, committing, or fleeing. The homicide must occur in close proximity to the time, place, and in causal relation to the underlying felony. The actual limits are defined on when you hold the crime to be over i.e., when has flight ended.

a. People v. Gladman : 15 min after robbing a deli, was hiding under a car when he was approached by a PO. shot and killed him. He was convicted of FM. Rule: Whether a murder is committed during the immediate flight from a felony and is thus within the res gestae of the felony so as to support a FM conviction, all relevant circumstances must be considered:

i. Did the felony and the homicide occur in the same location?

ii. If not, how far apart?iii. How long was the interval between the felony and the

homicide?iv. Did the felons have possession of their “criminal fruits?”v. Had the felons reached a place of temporary safety?

b. People v. Hickman : During the pursuit of , who was unarmed, following a burglary, PO accidentally shot and killed another PO thinking it was . was convicted of FM.

i. Rule : The FM rule applies whether the killing during the commission of the felony or in the immediate flight from is intentional or accidental, or is committed by co-felon w/o the


connivance of the defendant, or even by a third person trying to prevent the commission of or escape from the felony.

ii. Rule : Generally, the FM rule is not applicable against a surviving co-felon when a co-felon is justiably killed during the commssion of the felony. (But if one felon kills the other, he may be charged with murder).

Note: Some states like NY have solved the Hickman problem by statute, making it an affirmative defense that the felon was unarmed, did not commit or solicit the homicidal act, had no reasonable ground to believe that co-felons were armed, and had no reasonable ground to believe that co-felons would engage in deadly conduct. (See NYPC § 125.25)

c. People v. Washington : was robbing a gas station when the victim of the robbery shot and killed a co-felon. The state charged w. FM. Rule: For a defendant felon to be convicted of FM, the killing must have been committed by the or a co-felon acting in furtherance of their criminal design. It is not enough that the killing was reasonably foreseen risk of the commission of the felony. Justice Traynor held that the purpose of the rule was not to deter robbery, but to deter killings in furtherance of robbery.

4. Misdemeanor Manslaughter Rule: Also called the “unlawful act doctrine,” it creates a form of M/S liability parallel to FM. Although the MPC and the majority of states have abolished the rule, a number of states have kept it on the books, or retained in C/L form. It was defined in U.S. v. Walker as

(1) The unlawful killing of a human being(2) With either,

(a) The intent to commit a misdemeanor dangerous in itself, or

(b) An unreasonable failure to perceive the risk of harm to others.

Walker was convicted of M/S when he dropped his unlicensed (the dangerous misdemeanor) gun and it went off, killing a bystander.

a. In the jurisdictions that have MMR, if the underlying misdemeanor is malum is se, (carrying a loaded unregistered gun), the defendant is strictly liable for all deaths resulting. If the misdemeanor is malum in prohibitum, the death must be proximately caused by the misdemeanor. Example: speeding is malum in prohibitum so if a death occurs it must be proximately caused by the excess speed (if it would have occurred anyway no conviction). This is called the Unlawful Excess Theory for MMR.


5. Second-Degree Felony Murder : Many states authorize courts, by statute or C/L to impose liability for killings resulting from the commission or felonies other than the enumerated felonies of the FM rule, but are considered dangerous enough to justify invocation of the FM rule. Generally before a court may apply the 2° FM rule, it must determine whether the felony itself is dangerous to human life (a high probability of death).

a. The majority of states examine the felony in the abstract, that is the least dangerous way the felony can be committed, without reference to the facts of the case, to determine its dangerousness.

i. In California, the following have been found to be inherently dangerous in the abstract: furnishing of heroin, meth amphetamine, methyl alcohol, burning a car, kidnapping by fraud, and furnishing cocaine (People v. Patterson).

b. A minority of states looks to the felony as it applies to the facts of the case.

6. Felony Murder and the MPC: the Code takes an unusual approach to FM. While purporting to abolish it, in the section on murder, 210.2(b), it makes the commission of an enumerated dangerous felony the basis of a rebuttable presumption of murder liability. Only one state (NH) has adopted the MPC provision and it remains to be seen if this is Constitutional in light of Francis v. Franklin.

7. Merger of the Homicide and the Other Crime (The “Merger Limitation”): In many states the FM rule does not apply if the underlying felony is an offense that is an “integral part” or is “included in fact” in the homicide itself. The underlying felony must have an independent felonious purpose. Otherwise, the felony itself is not sufficiently independent of the death and therefore merges with the homicide, it disappears or is subsumed. The easiest example is M/S, since M/S is an inherently dangerous felony, if there were no merge limitation, every M/S would be murder. Another common limitation is felonious assault (assault w. a deadly weapon), it merges with the homicide b/c the elements are not independent. However, armed robbery does not merge b/c the felonious purpose is distinct from the murder (intent to rob). The best way to remember is if the felony is a lesser-included offence of murder (M/S, assault, etc.), it merges, otherwise it is independent.

Summary of Homicide Tables:


C O M M O N LA W H O M I C I D E D I S T I N C T I O N S

MURDER MANSLAUGHTER

Inte

nti

onal

H

omic

ide

Intent to Kill (second-degree unless premeditated, then first-degree) Voluntary: Intentional killing done in the heat of

passionIntent to do serious bodily harm (second degree)

Un

inte

tion

al

Hom

icid

e

Depraved Heart (second degree)

Invloluntary: unintentional killing done recklessly or negligently, mens rea varies with jurisdiction

Felony Murder (usually second degree)

MENS REA AND HOMICIDE UNDER THE MPC

Murder Manslaughter Negligent Homicide

Purpose

Yes Yes, But only if under the

influence of extreme mental or emotional

disturbance

N/A

Knowledge

Yes N/A

Recklessness Yes, But only under circumstances manifesting

extreme indifference to human life

Yes N/A

Negligence

N/A N/A Yes

VI. DEFENSES: JUSTIFICATION AND EXCUSE

A. Justification and Excuse Defined: While often used interchangeably, they are theoretically distinct At early English C/L justified acts were not punished


at all, but excused acts were punished but the actor was allowed to petition the Crown for a pardon. Today both justification and excuse defenses usually completely exonerate the defendant.

1. Justification : this defense focuses on the conduct and says that what the actor did is not wrong b/c of the circumstances under which he did it, and therefore he should not be punished or even censured. This can be due to a social benefit accruing from what would be otherwise bad conduct, or a moral interest or right is protected, or the bad conduct was the lesser harm than the one prevented. Self-defense is a justification defense – a person is justified in protecting himself. In justification defenses, the burden of persuasion is on the prosecution to disprove justification.

2. Excuse : This defense focuses on the actor and says in essence, the conduct is wrong and it harmed society, but b/c of the circumstances he should not be blamed for it. This theory has been explained by the lack deterrence value in punishing conduct that is beyond the actor’s control (insanity or coercion), and under the idea that it recognizes human frailty and the limits of character. Duress is an excuse defense. The burden of persuasion is on the defendant to prove an excuse.

“A defense of justification is the product of society’s determination that the actual existence of certain circumstances will operate to make legal and proper what would otherwise be criminal. A defense of excuse on the other and does not make legal what would ordinarily be criminal, instead it recognizes the criminality of the conduct but excuses it because the actor believed the circumstances actually existed which would justify his conduct but in fact they did not exist.” State v. Leidholm, 334 N.W.2d 811 (N.D. 1983)

B. DEFENSIVE FORCE (SELF-DEFENSE) :

1. A justification defense. At C/L, an actor is justified in using force upon another to prevent injury to himself if he is not the aggressor and he honestly and reasonably believes such force is necessary to protect himself from imminent unlawful harm. Thus he must actually believe in the necessity and the belief must be reasonable to b fully justified. The reasonableness of the need to use the defensive force determines if it is a “perfect” or “imperfect” defense:

a. Perfect Self-Defense : Where the actor’s belief in the necessity of using force to protect himself is both honest and reasonable. It is a full exoneration.

i. People v. LaVoie : Four drunks rammed LaVoie as he drove home from work at his pharmacy late at night. When he stopped they threatened him and he shot and killed one of them. Rule: When a person has reasonable grounds of believing and does in fact have actually believe he is in imminent danger of being killed or suffering great bodily harm, he may act on such appearances and defend himself, even to the extent of taking


human life if necessary, although it may turn out the appearances were false and that he was mistaken as to the extent of the actual danger.

b. Imperfect Self-Defense : where the actor’s belief in the necessity of using force is honest but unreasonable. Most jurisdictions allow imperfect self-defense to reduce murder to M/S or negligent homicide (b/c although not justified, his mens rea is only reckless or negligent), but a few do not recognize imperfect self-defense (NY for example, see Goetz).

2. “Unlawful Force” : note that the actor can not defend against the imposition of lawful force, i.e., justified force (a PO arresting you).

3. The Necessity Rule : Implicit in the self-defense rule, is the requirement that the use of force be used only to the extent necessary. Thus, a person may not use force to repel and attack if a non-forceful response will suffice. Note this implicates the reasonableness of the actor’s belief. Example: Smacking with an aluminum baseball bat an octogenarian attacking you with a flyswatter and a can of cheez-wiz is not justified (or reasonable), if you know or should know you could disarm him with little effort.

4. The Proportionality Rule : Provides that a person can not use force that is excessive in relation to the harm threatened. Example: if V threatens to strike with a small, soft twig, on a public road, and the only way can avoid being hit is to push V into a speeding Mac truck, must abstain and seek compensation for the battery after the fact. The use of Deadly force in self protection is thus authorized only when the unlawful force is deadly or capable of grievous bodily harm.


Perfect vs. Imperfect Self-Defense from Leidholm:

If a person has an actual and reasonable belief that force is necessary to protect himself from danger of imminent unlawful harm, his conduct is excused or justified. However, if a person’s actual belief in the necessity of using force is unreasonable his conduct will not be justified or excused, and he will be guilty of an offense for which recklessness or negligence suffices to establish culpability. (I.e. manslaughter if belief is reckless or negligent homicide if belief is negligent). Note: some states do not subdivide the unreasonableness of the belief and thus the actor is guilty of murder.

5. The Reasonable Belief Rule : This is the big one in self-defense. At C/L, the reasonableness of the actor’s belief in the necessity of using force was measured by the objective standard. The MPC and a few states have modified this to either a completely subjective standard (see Leidholm) or a reasonable person in the actor’s situation standard (see MPC and Goetz).

a. The Subjective Standard - State v. Leidholm : Janice Leidholm was involved in a stormy marriage with her husband Chester. After an argument where he pushed her repeatedly to the ground she stabbed him while he slept. claimed self defense and provided expert testimony on “battered wife syndrome.” claimed that T/C instruction on objective reasonableness standard was error. Ct. agreed and remanded for NT and evidence of BWS.

i. Rule: The standard to measure the reasonableness of the defendant’s belief in the necessity of use of force is subjective: the finder of fact must view the circumstances attending the an accused’s use of force from the standpoint of the accused (taking into account the mental and physical characteristics of the accused and what the accused saw and knew) to determine if they are sufficient to create in the accused’s mind an honest and reasonable belief that the use of force is necessary to protect himself from imminent harm. It is not a “reasonable person” standard.

ii. “Battered woman syndrome” is a phenomenon in which a regular pattern of spouse abuse creates in the battered spouse low self-esteem and a “learned helplessness” i.e. a sense that she can not escape from the abusive relationship. This syndrome is not of itself a defense, but testimony regarding the existence of such in a defendant may be relevant to determining the reasonableness of the defendant’s belief in the necessity of force. However, proper jury instructions about the subjective standard of reasonableness do not require separate instruction on the syndrome.

Note: some states that have followed Leidholm only allow this subjective standard in battered spouse and BWS cases. Further, several courts allow evidence of BWS but do not allow experts to testify to the ultimate fact of whether or not the has it. And some do not allow self defense at all for sleeping batterers. ND applies it in all self-defense cases.

Note: even if applying a subjective standard, if the jury finds the belief unreasonable, the next question is how unreasonable- whether the belief was reckless or negligent. This determines M/S or negligent homicide (where available).


Note also: if the belief is determined to be dishonest, it they think the actor is lying, he is guilty of murder.

b. The Modified Reasonable Person Standard – People v. Goetz: Goetz shot four unarmed black teenagers on the IRT because he believed they were attempting to rob him. Indicted for assault, attempted murder, and weapons possession. At T/C charges dismissed b/c T/C said standard was subjective. Ct. App. reversed.

i. In New York, which did not adopt the MPC subjective standard for the reasonable belief in the necessity of using force in self-defense, the defendant’s belief must be honest and objectively reasonable under the circumstances or in the defendant’s situation.

ii. The term “objective under the circumstances” means more than the physical movements of the assailant, they also include any relevant knowledge the defendant had, the physical attributes of the defendant and other persons involved, and the prior experiences of the defendant which could provide a reasonable basis for a belief that use of deadly force was necessary.

c. The MPC standard: § 3.04 “ [T]he use of force is justified when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion”

This represents two departures from the CL:

i. Tends to support a subjective standard, 3.04 doesn’t mention reasonableness, suggesting a pure subjective standard, but § 3.09(2) (which modifies all justification defenses) provides for liability if the actor was reckless or negligent in his belief and since recklessness and negligence are measured from the viewpoint of the actor’s situation this appears to be also subjective. The commentary on the code says that “situation” is intentionally vague and courts have ranged from a completely subjective standard to the somewhat modified objective standard like in NY. Note that § 3.09 recognizes an imperfect self defense under the code.

ii. Expands the idea of imminent: “immediately necessary ... on the present occasion” tends to suggest that force may be authorized sooner than under the common law immediacy standard.

d. MPC and the Use of Deadly Force: §3.04(2)(b) – The use of deadly force is not justified unless the actor believes that such force is necessary to protect himself on the present occasion against: (1) death, (2) serious bodily injury, (3) forcible rape, (4) kidnapping.


MAJORITY RULE

MPC and Self-Defense Scenarios:

BELIEF SCENARIO # 1 # 2 # 3 # 4

Does the actor actually need to use force to protect himself from unlawful force?

YES NO NO YES

Does the actor honestly believe he needs to use force...

YES YES YES NO

Does the actor reasonably believe he needs to use force...

YES YES NO

YES, had he honestly believed, it

would have been reasonable

RESULT CONDUCT IS JUSTIFIED

CONDUCT IS EXCUSED

Imperfect Defense: CONDUCT IS MITIGATED –

reckless = m/s; negl. = neg. homicide.

NO DEFENSE (see 3.04(1))

6. The Duty to Retreat: The general rule is that self-defense is measured against necessity (i.e. that deadly force is not justified to repel non-deadly aggression). However, a majority of states have adopted a rule that a non-aggressor has no duty to retreat in the face of unlawful deadly force even if he is aware of a safe avenue of retreat and can in fact retreat in complete safety. A minority of states and the MPC (§ 3.04(2)(B)(ii)) impose a duty to retreat from deadly aggression only if it can be done in complete safety and the actor reasonably believes that he can safely retreat (same standard of reasonableness as for use of force). In states that recognize such a duty there is generally an exception for one’s residence:

a. The Castle Rule Exception to the Duty to Retreat : Today, even in jurisdictions imposing a duty to retreat, there is no duty to retreat from one’s home even if there is a certain safe route (the so called “castle rule”). The MPC extends this exception to one’s place of work unless the actor was the aggressor or the aggressor works in the same place and the actor is aware of it. (see § 3.04(2)(B)(ii)), but only if it can be done in complete safety.


7. The Aggressor Exception to the Use of Deadly Force : At C/L and under the code, one who starts an altercation or provokes an attack can not then plead self-defense, if he kills a person. However, if the original aggressor communicates his intent to withdraw and makes a good faith effort to do so, he is restored to the right of self-defense.

i. United States v. Peterson : Peterson claimed that he killed in self defense when he brought out a gun and confronted and then shot Keitt as Keitt was preparing to leave Peterson’s property after he was caught trying to steal Peterson’s windshield wipers from his wrecked car. was convicted of M/S b/c court held that Keitt had withdrawn.

(a) Rule : While there appears to be no fixed rule ... an affirmative unlawful act reasonably calculated to produce affray foreboding injurious or a fatal consequence is an aggression that, unless renounced, nullifies the right of homicidal self-defense.

(b) Rule : Only in the event that the original aggressor communicates to his adversary his intent to withdraw and in good faith attempts to do so is he restored to his right of self-defense.

8. Law Enforcement and the Use of Deadly Force : Included in the discussion of self-defense b/c it is justified force. At common law, police and other law enforcement officials were allowed to use any force to stop a fleeing criminal. But in Tennessee v. Garner, the Court held that there are Constitutional limits on the use of deadly force to apprehend a fleeing felon:

a. Tennessee v. Garner A Memphis PO shot and killed Garner ( decedent) while chasing him from the scene of a suspected burglary. The decedent was unarmed and the PO knew it but when he ordered the decedent to stop and he did not the PO fired and killed him. Garner’s father sued TN, the officer et. al. for violation of his son’s civil rights under 24 USC § 1983 and alleged violations of 4,6,8, 14 Amendments.

i. “There can be no question that apprehension [by a law enforcement officer] by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment...”

ii. If the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a serious crime involving infliction of serious bodily harm [or continues to pose a danger], deadly force may be used if necessary to prevent his escape, and if, where feasible, some warning has been given.

b. Other Situations in which Defensive Force may be used by Law Enforcement:


i. Stop and Arrest: officers may use force to overcome resistance to arrest.

ii. Escape from custody: an officer having custody of a person is empowered to exercise (the same amount sufficient in the original arrest) to prevent that person’s escape/

iii. Crime Prevention: the law allows a person to use force (at times deadly force) to prevent the commission of an offense.

iv. Suppression of riots and disorders: deadly force may be justifiable if the actor believes it is necessary after the rioter have been ordered to disperse and are warned that such force will be used.

9. Spring Guns - People v. Ceballos : Ceballos was convicted of assault with a deadly weapon when a trap gun he set in his garage fired into the face of a teenage boy who broke open the garage door intending to burgle Caballos. Rule: A person may be criminally liable or civilly liable if he sets up on his premises a deadly mechanical device that kills or injures another, even if were he present he would have been justified under the circumstances of using deadly force.

C. NECESSITY – “CHOICE OF EVILS”: Necessity is a justification defense. It is also called “balancing the harms.” At C/L it was applicable only where the choice of evils was caused by natural forces (i.e., floods, fires, plague, etc.). Modern C/L and the MPC allow necessity defenses for a broader range of situations (speeding to get a sick person to the hospital when no ambulance is available).

1. General Principles : To claim necessity the following criteria msut be met:

a. Imminence : The threat must be clear and imminent, and not speculative but reasonably certain to occur. (See Warshaw).

b.Fault : The circumstances giving rise to the necessity of choosing between evils must be do to no fault of the actor seeking the defense. At C/L, even a reckless or negligent creation of the situation negates the defense. Under the MPC if the actor was negligent or reckless, he can be convicted only of an offense that requires recklessness or negligence as its mens rea. (see § 3.02(2)).

c. No Legal Alternative : There must be no legal alternative way to avoid the evil, or less drastic illegal way of avoiding the harm. (see State v. Nelson, defense not available when drove his 4X4 into the mud and stole a public vehicle to get it out, damaging the vehicle).

d.Balancing the Harms: The evil avoided must be greater than the evil caused by the actor’s conduct. This balancing is not left to the actor, it is a question for the judge or jury at trail, or the legislature determining in a statute what evils outweigh the offense charged.


Most jurisdictions favor the judge and consider it a question of law. The MPC comment to § 3.02 is neutral, only saying it is a question for trial or the legislature.

e. Mens Rea: The actor must honestly believe that the greater harm necessitates his proscribed conduct. At C/L a mistaken belief negated the defense, but some states and the MPC allow an imperfect necessity defense to mitigate the offense. Under the MPC a reckless or negligent mistaken belief will suffice to support a conviction for which recklessness or negligence is the required mens rea. (See § 3.09(2)).

2. Homicide And Necessity - The Queen v. Dudley & Stephens (1884): Dudley and Stephens, while shipwrecked in the middle of the ocean without food or water, not having anything but a turtle and some turnips to eat for 20 days, killed and ate a ship’s boy, Parker.

a. Rule: It is not legal justification to kill another to save oneself in the absence of self-defense. (Because the evils are equal).

“[There is] the moral necessity, not of preservation, but of the sacrifice of ... [one’s life] for the others, from which no country, least of all, it is to be hoped, in England, will men ever shrink, as indeed they have not shrunk. It is not correct, therefore, to say that there is an unqualified necessity to preserve one’s life....” Lord Coleridge

3. Escape from Intolerable Prison Conditions - People v. Unger : Unger was serving a 1 to 3 year term in a minimum security prison when he escaped allegedly to avoid homosexual assaults and death threats. He claimed necessity and compulsion.

a. The defenses of necessity and compulsion are available in escape cases and the jury should be instructed where the evidence adduced at trial is sufficient to raise the defense. Note not all states recognize this defense, primarily over policy considerations.

b.Factors and evidence that may be relevant, but not necessary, to the allowing of the defenses of necessity or compulsion are (contra Lovercamp, another earlier prison escape case, which made them preconditions):

i. Specific threats of death, forcible sexual attack, or substantial bodily injury in the immediate future

ii. No time to complain to the authorities or a history of futile complaints

iii. No time or opportunity to resort to the courts

iv. No evidence of force or violence used against a prison official or other innocent persons during the escape

v. The prisoner immediately reports to the authorities once in a place of safety.


4. Political Necessity - State v. Warshaw : Warshaw and other anti-nuke protesters were arrested and convicted for criminal trespass when they refused to leave the grounds of the Vermont Yankee nuke plant and were trying to prevent workers form restarting the plant. They sought to plead necessity claiming the dangerousness of nuke power and of that plant in particular. The Court did not allow the defense b/c the threat of harm was not imminent.

a. “To be imminent a danger must be, or reasonably appear to be, threatening to occur immediately, near at hand, and impending. The necessity defense cannot lightly be allowed to justify acts taken to foreclose speculative and uncertain dangers. Its application must be limited to acts directed to the prevention of harm that is reasonably certain to occur....”

b.Judicial Handling of “Political Necessity” Cases : In most cases like Warshaw, where “political necessity” is invoked the usual method of handling it is that the Judge will allow the political testimony to be heard by the jury (and the press and the public) and then instruct the jury that it is irrelevant. Thus the jury if it so desires can use the trial to send a message” to the public officials. However, the courts in D.C. do not follow this pattern. Further, in anti-abortion protest cases, judges rarely allow the defense of necessity (to save babies) to be heard.

5. Necessity and the MPC:

§ 3.02 Justification Generally: Choice of Evils

(1) Conduct that the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that:

(a) the harm or evil sought to be avoided by such conduct is greater than sought to be prevented by the law defining the offense charged; and

(b) neither the code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and

(c) a legislative purpose to exclude the justification claimed does not otherwise appear.

(2) When the actor was reckless or negligent in bringing about the situation requiring the choice of harms or evils or in appraising the necessity for his conduct, the justification afforded by this Section is unavailable in a prosecution for any offense for which recklessness or negligence ... suffices to establish culpability.

6. Differences Between MPC and C/L Necessity:

a. MPC rejects the imminence requirement – a lack of alternatives is sufficient.


b.Under MPC, an actor does not automatically lose his defense if he was negligent or reckless in bringing the situation about. See supra.

c. Under MPC all forms of necessity qualify, not just natural forces but also man made situations not amounting to duress (intolerable prison conditions).

d.The defense may be raised in murder prosecutions – an “accounting” is permitted (sacrificing one to save many).

D. DURESS ( Coercion ) : Duress is a defense of excuse. It is always due to human actions threatening the actor. The differences between C/L and MPC duress parallel those in necessity:

1. Elements of common law duress : to claim the defense of duress,the crime must be committed under the following circumstances:

a. Another person threatened to kill or grievously injure the actor or a third party (usually only a close relative), and

b. The actor reasonably believed the threat was genuine, and

c. The threat was “present, imminent, and impending” at the time of the criminal act (State v. Toscano (NJ 1977), and

d. There was no reasonable escape form the threat except through the compliance with the demands of the coercer, and

e. The actor was not at fault in exposing himself to the threat.

2. Duress and Homicide - Lynch v. Director of Public Prosecutions for Northern Ireland : Lynch () was convicted as a principal in the second degree (aidor and abettor) to murder of a constable when he drove the IRA gunmen to the decedent’s house under the implied threat of death.

a. Rule: Duress may be considered as a defense to aiding and abetting a murder, even though it may not be used if the accused actually committed the murder.

b. N.B. - The House of Lords overruled Lynch in 1987 in Regina v. Howe, eliminating the defense of duress in all murder prosecutions.

c. Most jurisdictions at C/L follow Howe and do not allow duress as a defense of any murder prosecution.

3. Model Penal Code § 2.09 Duress:

(1) It is an affirmative defense that the actor engaged in the conduct charged to constitute an offense because he was coerced by the use, of or threat to use, unlawful force against his person or the person of another, that a person of reasonable firmness in his situation would have been unable to resist.


(2) The defense provided by this Section is unavailable if the actor recklessly placed himself in a situation in which it was probable that he would be subjected to duress. [It] is also unavailable if he was negligent in placing himself in such a situation, whenever negligence is sufficient to establish culpability for the offense charged [but it would be available if the mens rea is recklessness or higher and he was only negligent].

(3) It is not a defense that a woman acted in the on the command of her husband unless she acted under such coercion as would establish a defense under this Section.

(4) When the conduct of the actor would otherwise be justifiable under Section 3.02 [Necessity], this Section does not preclude such defense.

[Emphasis added]

Comment to § 2.09:

“[R]easonable firmness... is not wholly external ... account is taken of the actor’s “situation” .... Stark tangible factors that differentiate the actor from another, like his size, strength, age or health, would be considered ... [but] matters of temperament would not.”

“[T]hreats to property or even reputation can not exercise sufficient power over persons of “reasonable firmness” to warrant consideration [of this defense].”

4. Differences Between C/L and MPC Duress : Overall the code is much broader than the common law in allowing the use of duress:

a. The MPC does away with the C/L requirement of use or threat of “deadly force” or grave bodily harm, instead only requiring that the force be unlawful.

b. The MPC also eliminates the requirement at C/L in some jurisdictions that the threats be to the actor or a close relative, allowing threats to any person to suffice.

c. The MPC eliminates the C/L “imminence” requirement from duress. Further, the comment notes that “long and wasting pressure may break down resistance more effectively than a threat of immediate destruction.”

d. In eliminating the requirements of deadly force, threat to self, and imminence, the Code says that these are evidentiary and go to whether a “person of reasonable firmness” could resist.

e. The Comment also expressly says that the defense of duress may be available in homicide cases if the coercion is sufficiently strong.


f. Also note that the Code modifies the “no fault” requirement by allowing an actor who was negligent in exposing himself to threats to use the defense so long as the mens rea for the offense charged is higher than negligence. If he is reckless, knowing or purposeful the defense remains unavailable.

E. DEFENSES: MENTAL ILLNESS : Insanity (or mental illness) is a defense of excuse. It does not seek to justify behavior but is concerned with moral blameworthiness. Insanity does not mean that the actor did not have the mens rea for the crime, it means that because of the mental illness, the actor should not be blamed because he is not responsible for his actions, and therefore there is no deterrent value to punishment. Recently there has been a backlash against the defense and many jurisdictions now do not allow acquittal (NGRI) but instead have a conviction (GMBI) but place the defendant in a mental institution until he is no longer insane then he goes to prison. There are four test for determining legal insanity:

1. M’Naghten Test : (the majority rule after Hinkley) – This test focuses on two issues. A person is insane, if at the time of her actions, she was laboring under a such a defect of reason, arising from a disease of the mind, that she: (1) did not know the nature and quality of the acts that she was doing; OR (2) if she did know it, she did not know what she was doing was wrong.

a. “To know” (in both prongs): two approaches:

i. Cognitive Knowledge – some courts apply this narrow view. A person can be found sane if she can describe what she is doing and can acknowledge the nature of her conduct.

ii. Affective Knowledge - Other courts require a deeper meaning for knowledge, which is absent unless the actor can evaluate her conduct in terms of its impact on others and appreciate the total setting in which she acts.

b.“Nature and quality” – if a defendant squeezes a persons neck, believing it is a lemon, she does not know the nature and quality of her act. However, if she squeezes a victim’s neck believing the victim to be Zog the Avenger and she must kill him, she does know the nature and quality. This is very high standard, the actor must not know that her actions will cause death.

c. “Wrong” – It is unclear whether “wrong” refers to moral or legal wrong and courts are split.

i. Legal wrong (more restrictive) – the actor knows its against the law.

ii. Moral wrong– the actor knew the act was something he ought not do. Thus if the actor, due to mental illness, believes that he must


kill Zog, he may know it is illegal, but in his mind morally he is justified

2. The Durham Test : The broadest of the four tests, it is hardly used today. It provides that a person is excused if her unlawful act was the “product of a mental disease or defect.” If the defendant was suffering from a mental illness that is recognized at the time of the offense, and the criminal conduct would have not occurred but for the mental defect, the defendant is acquitted. The problem is what constitutes a mental disease or defect - the DSM is constantly changing. As such, it leaves almost all to expert testimony.

3. Irresistible Impulse Rule : (Often combined with the M’Naghten Test). A person is insane if, at the time of the offense: (1) she “acted from an irresistible and uncontrollable impulse”; (2) she “lost the power to choose between right and wrong, and to avoid doing the act in question her free agency at the time was destroyed:; (3) the defendant’s will has been so completely destroyed that her actions are not subject to it but are beyond her control. Known as lack of voluntary control.

4. The ALI (Model Penal Code) Test : Combines the two prong M’Naghten Test and part of the Impulse Rule. Thus, a person is not responsible for her criminal conduct, if at the time of the conduct, as a result of mental disease or defect, she lacked substantial capacity to: (1) [cognitive prong] appreciate the criminality or wrongfulness of the conduct; or (2) [volitional prong] conform her actions to the requirements of the law.

Note: the ALI Test uses “appreciate” to avoid a narrow definition of knowledge in the cognitive prong.

5. Smith v. State : Although two out of three mental health experts testified that was legally insane, and evidence of prior history of mental illness, was convicted of shooting a cop with intent to kill when he stole a truck from the Army base where he was stationed and attempted to leave Alaska by driving in the wrong direction. He was to be discharged in 7 days. Ct Smith/ ALI.

a. A trier of fact may hold a defendant to have been legally sane even when the preponderance of expert medical testimony is to the contrary. A trier of fact is not bound by expert testimony.

b. NGRI is an affirmative defense, and the prosecution is not required to disprove the defense beyond a reasonable doubt until the defendant produces “some evidence” (more than a scintilla, but less than that which would compel a reasonable doubt as to his guilt as a matter of law). Once a defendant produces some evidence of insanity, the burden is on the prosecution to prove sanity beyond a reasonable doubt. The requirement of supporting evidence is not


satisfied solely by evidence of an abnormality that is manifested only by repeated criminal or anti-social behavior (C.f. MPC § 4.01(2)).

c. Ganzer Syndrome : or “prison psychosis” is a condition in which one attempts to appear insane or less sane than one is for the advantage of being thought insane. There may actually be an underlying, no debilitating mental disorder.

6. The God Exception – State v. Cameron : stabbed his mother in law 70 times b/c he said God told him to because she was Satan’s angel. Rule: If the defendant claims God told him to commit the bad act, even though he knew it was wrong, some courts will hold that he didn’t “know” it was wrong.

7. GBMI vs. NGRI : if a person is found Not Guilty by Reason of Insanity, he is not guilty. However, he does not go free, he is usually civilly committed based on the proof of insanity at the criminal trial (Jones v. US). Some states have abolished NGRI altogether or have added Guilty But Mentally Ill. NGRI means that once a is no longer mentally ill he is released from custody. (See Foucha). A GBMI verdict means guilty and the is held in a mental institution until not insane then he goes to prison, and is usually a less restrictive standard in states that have both (see Alaska Statute).

a. Disposition of Persons Adjudicated NGRI – Foucha v. Louisiana : charged with burglary and discharging a firearm. He was adjudicated NGRI and sent to a mental institution. After 4 years the shrinks found that he was no longer insane, but La. refused to release him b/c the doctors would not certify that he was not dangerous.

i. Plurality Rule: After a verdict of NGRI, if the is pronounced sane, the state may not continue to hold him solely because he might be dangerous. To continue to hold a NGRI , the state must prove by clear and convincing evidence (Addington v. Texas) that he is both mentally ill and dangerous. The burden may not be on the defendant to prove he is not either.

ii. O’Connor’s Concurrence: Agrees with the plurality but says they are not saying what they are saying. She holds that a state may continue to hold a NGRI if it has a medical justification, which is less than insanity. Many states have latched on to this concurrence. Example: Randall – Wis. Continued to hold for years after he was sane b/c he had a medical justification: “behavioral disorders” (but he was a pedophile). See also Kansas v. Hendricks (1997) S. Ct. held that mental abnormality is sufficient to keep a sexually violent prisoner confined.


INCHOATE OFFENSES

VII. ATTEMPT

A. Generally: Attempt is an inchoate or “incomplete” offense. At early C/L it was not punished under the logic of “no harm, no foul.” Today it is punished because an attempt would be a crime if not for an intervening force and thus the actor has the mens rea to justify punishment. The rationale was first expressed in Rex v. Scofield (1784) by Lord Mansfield: “ Completion of an act, criminal in itself, [is not] necessary to constitute criminality.”:

It is a specific intent crime, that is, the actor must have the purpose or knowledge to commit the underlying crime. Most jurisdictions hold that it is impossible to attempt a “reckless crime” such as depraved heart murder, felony murder or involuntary manslaughter. But it is possible to attempt “heat of passion” voluntary M/S. Others hold that an attempt to do a reckless or stupid act can lead to attempt liability if recklessness is the mens rea for the most serious offense., they hold that the only intent is fthe intent to do a voluntary act. (see Dissent in Lyerla).

B. Attempt Elements:

1. Mens Rea: purpose or knowledge (intent or knowingly); not recklessness or negligence.

2. Actus Reus: To be liable for attempt, the actor must have taken some step in furtherance of the attempted crime. Note MERE PREPARATION IS NEVER ENOUGH for attempt liability. There are four tests among the jurisdictions for determining the sufficiency of the act: (SPUD)


NOTE - BURDEN SHIFTING AND DEFENSES:

Generally, the burden of persuasion can be shifted the defendant UNLESS proof of the defense would negative the mens rea required to convict.

Example: If an element is to “knowingly write on state property with an indelible substance”, and the claims he didn’t know the substance was indelible as a defense, the burden can not be shifted b/c it would proof of it would negative knowledge. Once the produces some evidence of his lack of knowledge, the prosecution must prove beyond a reasonable doubt that he did in fact know.

Example: if the same element applied, but the claimed duress, b/c a large pink bunny was threatening him, the burden can shift b/c it does not negative the knowledge of any element.

a. S ubstantial Step: (the MPC test in § 5.01)- the has taken some substantial step in furtherance of the crime that corroborates his criminal purpose. This is a looser standard and is easier to satisfy. Below is conduct the MPC considers corroborative that will not be held insufficient as a matter of law (must go to the jury)(see § 5.01(2)).

i. Lying in wait

ii. Enticing the victim’s presence to the scene of the crime

iii.Reconnoitering the place...

iv. Unlawful entry into a structure, vehicle, or enclosure ...

v. Possession of materials to be employed in the commission of the crime ... specially designed for unlawful use.

vi. Possession, collection, or fabrication of materials to used .... near the scene .... where such possession has no lawful purpose.

b. P roximity: Asks the question, how far from completion is the actor. The defendant’s conduct must be physically proximate to the scene of the contemplated crime. Two versions: Last Act Doctrine – to be liable the actor must commit the last act necessary to commit the offense (pulling the trigger, if he misses its attempt). Dangerous Proximity Test – Pretty damn close to finishing.

c. U nequivocality Test: a.k.a. Res Ipsa Loquitur – The is liable if his conduct clearly manifests his criminal intent, what he has done is open to no other explanation other than he is going to commit the crime.

d. Probable Desistance Test: The defendant must have gone so far that in the ordinary course of events, absent outside interference, the crime would have been completed.

C. MPC § 5.01 Criminal attempt : (Mens Rea for Attempt)

(1) Definition of attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for the commission of the crime, he:

(a) purposely engages in conduct that would constitute the crime if the attendant circumstances were as he believes them to be; or

(b) when causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or with the belief that it will cause such result, without further conduct on his part; or


For attempts where the actor has completed everything but the result did not happen

Note: Non-act evidence can often tip the balance, especially a co-felon turning state’s evidence. (See Jackson (aborted bank robbery)).

(c) purposely does or omits to do anything that, under the circumstances as he believes them to be, is an act or omission constituting as substantial step in a course of conduct planned to culminate in the commission of the crime.

Thus, under the Code, attempt liability requires the defendant to exhibit purpose with respect to any conduct element of the crime; purpose or knowledge as to any result element of the crime; but as to the circumstance elements of the crime, if the crime requires only recklessness or negligence, these would suffice for attempt (the mens rea pertaining to attendant circumstances transfer to the crime of attempt).

D. Grading of Criminal Intent :

1. Common Law – most jurisdictions grade attempt one level below the underlying crime. Others use a fractional method, whereby a defendant gets a proportion of the sentence he would have gotten had he completed the crime.

2. MPC § 5.05(1) Grading of Criminal Attempt: “Except as otherwise provided in this section, attempt [is a crime] of the same grade and degree as the most serious offense that is attempted ... An attempt ... to commit a [a capital crime or a] felony of the first degree is a felony of the second degree.”

Note that this approach reflects the desire to punish culpable mental states.

E. Cases:

1. Reckless Murder - State v. Lyerla , Lyerla was convicted of 2d degree murder and two counts of attempted 2d degree murder, when he fired three times into a pickup truck containing three girls who were harassing him on the interstate. One of the girls died, one was wounded, the other unhurt. Conviction was overturned.

a. In order to commit a crime there must exist in the mind of the perpetrator the specific intent to commit the acts constituting the offense, therefore to commit attempted 2nd degree murder, one must attempt to have a criminally reckless state of mind, which is a logical impossibility.

b. “To commit murder, one need not intend to take life; but to be guilty of an attempt to murder, he must so intend. It is not sufficient that his act, had it proved fatal, would have been murder.” People v. Hernandez (Colo. App. 1980).


For attempts when the actor has not completed all of the acts in commission b/c of intervention or change of heart.

c. Dissent: (minority view) Intent is not an element of the crime of attempt in S.D. If one attempts a dangerous or stupid act, it is sufficient for attempt where recklessness is the men rea for the chief offense. The only intent or attempt necessary is a voluntary as opposed to a non-volitional or forced act.

2. Preparation - People v. Murray , Murray was convicted of attempting to contract an incestuous marriage with his niece. He had requested witnesses, called for a magistrate, and they had eloped. Ct. reversed using the “last step” test.

a. Mere preparation is not attempt. There is a difference in making preparations to attempt an offense and actually attempting the offense. An actual attempt is manifested by acts that would end in the consummation of the particular offense but for the intervention of circumstances independent of the will of the defendant.

b. “[P]reparation consists of devising or arranging the means or measures necessary for the commission of the offense; the attempt is the direct movement toward the commission after preparations are made.”

3. Assault - McQuirter v. State , McQuirter, a black man was convicted of attempted assault with intent to rape when he “followed” a white woman up and down the street.

a. Since assault is by definition the attempt (i.e. intent plus some act in furtherance) to commit battery, attempted assault must be attempted battery by an act in furtherance of assault which does not qualify as being in furtherance of battery.

Note: Although the court here aff’d the conviction, after all it was Alabama in 1953, some courts hold that attempted assault (an attempted attempt) is a “metaphysical absurdity.”

4. The Proximity Test - People v. Rizzo , Rizzo and three others set out with guns to rob a payroll from one of two people, but before they found either of them they were arrested and charged with attempted first degree robbery. Reversed.

a. An attempt to commit a crime requires an act “tending,” but failing, to effect the commission of the crime. To result in liability for attempt, the acts “tending” to effect the crime must be so near the accomplishment of the crime that in all reasonable probability, the crime itself would have been committed but for timely interference.

F. Renunciation of Attempt (Abandonment):

1. People v. Staples , Staples rented a room over a bank and proceeded to drill holes in the floor to get to the bank, but stopped before the


holes went thru. The landlord discovered his tools and turned them over to the police. After he was arrested, Staples admitted he had started to rob the bank but stopped because he had second thoughts. Aff’d.

a. Once an actor has crossed the line from preparation to attempt, his abandonment, whether voluntary or involuntary, is immaterial and is not a defense to the crime of attempt. “Once that attempt has been found, there can be no exculpatory abandonment.”

2. MPC § 5.01(4) Renunciation of Criminal Purpose , which provides that a voluntary abandonment of an attempt can be an affirmative defense, so long as the abandonment was not caused by circumstances not present at the time the attempt started which would “increase the probability of detection or apprehension” or make accomplishment more difficult. Nor is voluntary abandonment in order to “transfer the criminal intent” to some other person or place sufficient to allow the defense

a. Note: In practice the MPC defense has been used very little, courts usually avoid the abandonment issue if the actor really renounced his criminal purpose by holding that he never crossed the line from preparation to attempt.

d. The Gap Filler - Reckless Endangerment : The MPC recognizes the gap between purpose bound attempt law and the greater number of crimes that permit a lesser mens rea to convict, so they included the crime of reckless endangerment to fill that gap. MPC § 211.2

“A person commits a misdemeanor if he recklessly engages in conduct which places or may place another person in danger death or serious bodily injury.”

G. CRIMINAL SOLICITATION: The requesting, importuning, or commanding of another to commit an offense. In a few C/L states soliciting a person who has no intention of carrying out the crime is not punishable because there is no real possibility that the crime wold occur. (See State v. Davis (soliciting a cop to commit murder, not solicitation even when did not know he was a cop)). However, most states follow the MPC and punish all solicitation as attempt.

1. MPC § 5.02. Criminal Solicitation.

(1) Definition of Solicitation. A person is guilty of solicitation to commit a crime if with the purpose of promoting or facilitating its commission he commands, encourages or requests another person to engage in specific conduct which would constitute such crime or an attempt to commit such


C/L: No “abandonment” defense to attempt.

MPC: Allows voluntary abandonment defense.

crime or which would establish his complicity in its commission or attempted commission.

(2) Uncommunicated Solicitation. It is immaterial under Subsection (1) of this Section that the actor fails to communicate with the person he solicits to commit a crime if his conduct was designed to effect such communication.

(3) Renunciation of Criminal Purpose . It is an affirmative defense that the actor, after soliciting another person to commit a crime, persuaded him not to do so or otherwise prevented the commission of the crime, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.

2. People v. Lubow , Lubow solicited Silverman, whom he owed money to participate in a “bust-out” credit scam to buy a large quantity of diamond then declare bankruptcy and hide the sale proceeds. Silverman told the police who wired him. MPC standard.

a. For a person to be guilty of solicitation, nothing need to be done in furtherance of the crime (no act but the communication) and no corroboration is necessary.

b. An attempt to communicate that fails, made in order to importune another person to commit a crime, is sufficient to convict a person for solicitation (“attempted solicitation”).

3. Grading of Solicitation: The MPC grades solicitation like it does attempt, the punishment is the same as completing the solicited crime, except that solicitation of first degree felony is punished as a second degree felony.

4. Solicitation and Attempt Liability - If the jurisdiction has both a solicitation provision and a broad attempt law, the MPC holds that a person can be punished for either but not both. See § 5.05(3).

H. IMPOSSIBILITY: Conduct that otherwise would constitute attempt may, in some cases, not constitute attempt because the crime attempted is “impossible” to complete. In such circumstances, the actor has the mens rea to commit the offense, but because of a mistaken factual or legal circumstance, the actual criminality of their conduct in cast into doubt. Impossibility is distinguished from mistake of fact or law defenses in that in the latter the defendant is arguing he did not have the requisite mens rea.

1. Common Law Impossibility:

a. Pure Factual Impossibility – Is not traditionally a defense. In factual impossibility, if the facts were as the defendant


believed them to be the crime would have been completed. The crime, though is impossible because of some factual condition unknown to the actor. Had he known he would not have attempted. Neither the common law nor the MPC recognize this as a defense.

Examples of Pure Factual Impossibility:

i. Picking an empty pocket.

ii. Pointing an unloaded gun at a person and pulling the trigger.

iii. Shooting an empty bed, believing the victim is there.

iv.Attempting to poison a person with a bottle labeled arsenic, but is actually orange juice.

b. Pure Legal Impossibility – Is a traditional defense. In this case, even if all the facts were as the actor believes them to be, his conduct would still not amount to a crime. Only the defendant thinks it is unlawful, but in fact there is no law punishing what he is actually doing. He is essentially committing a legal act with a guilty mind.

Examples of Pure Legal Impossibility:

i. Killing an animal on federal land thinking it is illegal when it is not.

ii. Offering a bribe to a person he believes is a juror but is in fact not

iii. Receiving goods he believes to be stolen but which are in fact not.

iv.Shooting a stuffed deer out of season, believing it to be alive.

c. Inherent Factual Impossibility – May be a defense, but is extremely rare. It occurs where the method used to attempt the crime is one that a reasonable person should know is impossible and would not result in a crime.

Examples of Inherent Factual Impossibility:

i. Attempting to murder with voodoo.

ii. Attempting to sink a ship with a b.b. gun.

iii. Attempting to kill with AIDS by spitting on someone.

2. MPC Impossibility § 5.05 : eliminates the defense of “legal” impossibility (factual is not one anyway) in favor of a subjective test: If the actor believes what he is doing is a crime or a substantial step in the crime and it would be if the circumstances were as he believed them to be, he is guilty of attempt to commit the crime. Comment to § 5.05 (Mitigation) directs courts to reduce or even


dismiss charges where the belief of the actor is so impossible (inherently impossible) as to result in an absurd conviction (attempting to kill someone by voodoo).

Booth v. State, Booth bought a coat from a convicted criminal believing it to be stolen when in fact it had been recovered by the police and the owner. Since the coat was recovered, it was no longer “stolen property” so it was legally impossible for the crime to occur. The court was reluctant to so hold but that is what the law held; however the court recommended that the legislature adopt the MPC

VIII. COMPLICITY

A. Early Common Law View : distinguished between principals and accessories:

1. Principal in the 1 st degree : the actual perpetrator at the scene of the crime.

2. Principal in the 2 nd degree : one who was present at the scene of the felony that assisted or encouraged the principal in 1st degree. “Presence” could be constructive, i.e. serving as lookout or guard.

3. Accessory before the fact : accessories were not present at the scene. An accessory before the fact aided and abetted the commission of the crime but was not at the scene either actually or constructively. (Gave a weapon).

4. Accessory after the fact: played no role in the preparation or commission of the crime but rather assisted the felon in escaping or eluding capture. Usually such assistance had to be affirmative (hiding) and not merely passive (failure to notify cops), although some jurisdictions punished passive concealment a misdemeanor and made those who actively concealed punishable as true accomplices and guilty of the principal offense.

5. Misprision of Felony: one who did not disclose to authorities knowledge of the commission of a crime or passively concealed a felon, could be punished by prison or fine.

6. At C/L an accessory could not be tried or convicted until after the principals were convicted.

B. Modern Statutes: have eliminated almost all C/L distinctions and provide all parties to the crime are charged with the substantive crime and allow for equal punishment for the principal and all “aiders and abettors” (C.f. MPC §2.06; 18 USC §22).

1. The one exception is that most states punish accessories after the fact less severely. (Contra MPC §2.06).


a. However, note that even in states that have eliminated accessory after the fact or misprision, one who takes active steps to prevent the arrest or prosecution of a criminal may be liable under other statutes. E.g. harboring a criminal, destroying evidence, tampering with witnesses, volunteering false information (MPC §242.3); aiding by safeguarding proceeds of a crime or converting them (§242.4); or compounding of a crime by accepting money on exchange for refraining from reporting the crime (§242.5).

2. They also allow an accessory to be tried and convicted even if the principal has not been apprehended (although NC, MD, RI, and TN retain the C/L rule).

C. The Accessorial Act:

1. Community of Purpose - State v. Ochoa , A riot erupted as a sheriff attempted to transport a prisoner from the JOP to the jail. The sheriff was shot and killed although the shooter was never ID’d three people in the crowd were convicted of “aiding and abetting” in his murder. Two were assaulting a deputy before and after the shots were fired. Guilty.

a. Before an accused may become liable as an aider and abettor, he must share the criminal intent of the principal. There must be community of purpose, partnership in the unlawful undertaking.

b. The intent to kill, or to aid and abet in the commission therof, may be formed at the scene of the crime, even though the accused may have gone there without such intention. If, with knowledge that one of their party was using or was about to use deadly force the accused rendered aid or assistance, or engaged in the deadly assault, he is as equally guilty as the principal.

c. When one in a group altercation becomes aware that one of his numbers is using deadly force, he becomes an accessory to the use of that deadly force unless he stops his participation except to defend himself.

2. “Mere Presence” vs. Aiding and Abetting - Gains v. State , Williams was convicted of aiding and abetting in a bank robbery committed by Gains because he drove the car in which they left. Williams did not go into the bank, and there was no evidence that he knew that Gains and the others were robbing the bank. He drove slowly away and did not attempt to elude until one of the robbers apparently spoke to him when a police car approached. Rev. not guilty.

a. A mere suspicion or circumstantial evidence of complicity will not exclude a reasonable inference of innocence and may not support a conviction for aiding and abetting. Mere


presence at the scene of a crime is not enough to make one guilty of aiding and abetting a friend’s crime. (Even the mere fact of flight from the scene will not exclude such an inference).

b. In the commission of a crime both the actor and the one who aids and abets him are principals in the first degree and may be charged and convicted of the crime. It is not necessary that the aider or abettor be physically present, but he must be sufficiently near or so situated as to aid or encourage or to render assistance to the actual perpetrator.

3. Omissions or failure to act as aiding and abetting : in certain instances the failure to take reasonable steps to prevent a crime, where there is a reasonable opportunity and (legal) duty to do so, may result in liability for the crime. For example a parent not trying to stop an assault on his minor child. State v. Walden (NC).

4. Proximity to the Crime - State v. Tally , Judge Tally () prevented a warning cable from being delivered to Ross, whom Tally knew was being followed by the Skeltons, his in-laws, who wanted to kill him for sleeping with their sister and Mrs. Talley (another sister).

a. One who interferes with the relaying of potentially life saving information or warning to a potential victim, is an abettor if a homicide results.

b. To aid and abet the commission of a crime (as a C/L principal in the 2nd degree) a person need not be physically present, it is enough that is in a position to aid in the commission of the crime. It is enough if he stands guard to give warning to the perpetrators or prevent interference with their criminal design, and it is immaterial how far away he is from the scene of the crime, provided it gives some “promise of protection” to the perpetrators.

3. MPC § 2.06(3) Liability for the Conduct of Another; Complicity: A person is an accomplice of another person in the commission of an offense if:

(a) with the purpose of promoting or facilitating the commission of the offense he

(i) solicits such other person to commit it; or(ii) aids or agrees or attempts to aid such other person in

planning or committing it....

5. Attempted Complicity: MPC § 5.01(3) Conduct Designed to Aid Another in Commission of a Crime.

A person who engages in conduct designed to aid another to commit a crime which would establish his complicity under § 2.06 if the


Under the code attempt to aid is sufficient §§ 2.06(3) & 5.01(3)

If actor aids but no crime is committed, he is guilty of attempting the crime.

crime were committed ... is guilty of an attempt to commit the crime, although the crime is not committed or attempted....

6. Renunciation of Complicity: MPC §2.06(c)(i)&(ii) : Unless otherwise provided [by MPC or statute] a person is not an accomplice in an offense committed by another person if...

(c) he terminates his complicity prior to the commission of the offense and

(i) wholly deprives it of effectiveness in the commission of the offense; or

(ii) gives timely warning to the law enforcement authorities or otherwise makes proper effort to prevent the commission of the crime.

C.f. NY PENAL CODE § 40.10(1), which has a similar defense, conditioned on a “substantial effort to prevent” and puts the burden on the defendant.

D. The M ens Rea for Complicity:

1. Minority Rule- Knowledge of Principal’s Intent - Mowery v. State: Mowery was convicted of “murder without malice” as a principal (aider and abettor) when he hit Kimmel after his friend had hit him with a fatal blow. But he didn’t know he was already dead or that his friend intended to kill him. NG. Rule: A person who aids and abets the commission of a crime with knowledge of the unlawful intent of the person committing the crime is guilty as a principal (complicity).

2. The Majority Rule –Purpose - People v. Beeman , Beeman was convicted as an aider and abettor in the commission of a robbery of his sister in law after he gave information to the perpetrators which facilitated the crime and was caught with some of the stolen goods. He claimed he did not want the robbery to occur and was pretending to sell the goods so he could return them. Rev. NG.

a. A person aids and abets the commission of a crime when he, acting with

i. knowledge of the unlawful purpose of the perpetrator, and

ii. the intent or purpose of committing, encouraging, or facilitating the commission of the offense,

iii. by act or advice, aids, promotes, encourages, or instigates, the commission of the crime.

Note: Both the MPC and modern C/L adopt the knowledge + purpose requirement outlined above. Limiting liability to purposeful aiders and abettors assures that only the actors with the


The “purpose” requirement for mens rea of complicity. This is also the MPC standard.

most culpable mens rea are punished, but knowledge alone can sometimes help someone even if it is not the actors purpose to help. Further, purpose can be inferred from knowledge and is very close especially if the assistance is by omission.

3. Decoys – Wilson v. People : Wilson was convicted of aiding and abetting Pierce in the commission of a burglary when he set him up by helping Pierce to break in and then called the cops. NG.

a. To be guilty as an aider and abettor, it is essential that the defendant share in the criminal intent of the perpetrator; the intent that the crime will actually proceed successfully must exist in the minds of both.

b. One, who participates in a felony as a feigned accomplice, in order to snare the other, is not criminally liable, and he need not take an officer into his confidence to avoid the imputation of criminal intent. See 16 CORPUS JURIS 129.

E. Criminal Facilitation: NY has a lesser included offense to aiding and abetting which imposes liability even if the defendant does not have purpose to further the crime, but only believes it is probable that he is rendering aid to some one who intends to commit a Class A felony. NYPC § 115.05.

F. Negligent Aiding and Abetting: Some jurisdictions predicate liability for mere negligence as to the possibility that one’s actions will encourage or facilitate a particular offense (if the commission of the offense is a reasonably foreseeable consequence of aiding a person). See MAINE REV. STAT. TITLE 17-A § 57(3)(A).

IX. CONSPIRACY

A. Generally : Conspiracy is an inchoate crime but is distinct from attempt and complicity. The essence of conspiracy is the agreement between conspirators. It is a broader net and does not require as much overt action on the part of the conspirators. This reflects the view that two people agreeing to commit a crime is more dangerous that one person acting alone.

B. Elements of Common Law Conspiracy: (from Verive)

1. Intent (purpose) to commit the crime, and

2. An agreement between two or more persons, and

3. An overt act evidencing that agreement. The act need not rise to the level sufficient to constitute attempt liability – with conspiracy, mere preparation is sufficient.


C. MPC Conspiracy § 5.03 :

(1) Definition of Conspiracy. A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he:

(a) agrees with such other person or persons that they or one of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime.

D. Conspiracy and Attempt- State v. Verive -: charged with attempt to dissuade a witness and conspiracy to dissuade a witness. He was found guilty on both counts.

1. Because of the Identical Elements Test, conspiracy is usually a separate and distinct crime and can be punished in addition to attempt. Since “mere preparation” is sufficient for conspiracy, and the conduct punished is the agreement, it is separate form attempt

2. Identical Elements Test (from Verive): If a defendant is charged with 2 crimes arising out of the same conduct, in order to punish him for both – after eliminating the evidence necessary to support one of the charges, the remaining evidence must be sufficient to support the remaining crime. There must be separate facts to support each crime.

3. Note : Not all states follow this doctrine (13 don’t), and allow only punishment for one inchoate crime. The MPC also does not permit punishment for conspiracy and another inchoate crime. (see MPC § 1.07)

E. Conspiracy and the Underlying Crime – Callanan v. U.S.: was convicted of conspiracy to commit armed robbery and armed robbery. He was sentenced to consecutive terms on each count. He appealed claiming he can not be punished for both crimes. Aff’d.

1. Rule : The danger which conspiracy generates is not the same as the substantive crime, it is the agreement to commit the crime that is punished. They are separate and distinct crimes and can be punished by consecutive sentences. In some jurisdictions, conspiracy is punished greater than the underlying crime (e.g. conspiracy to commit a misdemeanor).

Note: the MPC limits the punishment for both the conspiracy and the underlying crime: § 5.05 limits the sentence for conspiracy to equal to the maximum sentence for the criminal objective. § 1.07(1)(b) provides that a defendant may be prosecuted for both the conspiracy and the object crime, but he may not be convicted of “more than one offense if ... one offense consists only of conspiracy or other form of preparation....”


F. Conspiracy to Commit Unlawful Conduct Not Amounting to a Crime : at C/L a defendant could be punished for conspiring to commit “unlawful” acts that did not amount to a criminal violation. Most states and the MPC reject this idea, but the US in its prosecution of Oliver North, successfully got a charge of “conspiring to defraud the US” past the courts.

G. THE AGREEMENT :

1. G riffin v. State - was approached by two POs after he was involved in a traffic accident. He attacked the officers and as he did several members of the gathered crowd did too. There was no direct evidence of a prior agreement between the defendant and the other attackers. was convicted of conspiracy.

a. The agreement may be inferred from circumstantial evidence. “It may be inferred, even though no actual meeting of the parties is proved, if it is shown that two or more persons pursued by their acts the same unlawful object, each doing a part, so that the acts, though apparently independent, are in fact connected.” (A “concert of action”).

2. Note - Limits on Inference from Circumstantial Evidence :

a. The 2d Circuit had held that circumstantial evidence in a indictment for “conspiracy with persons unknown” is sufficient to support a charge. (Cerpeda (drug conspiracy)).

b. However, the 10th Circuit has held that affiliation alone is not sufficient to support a conspiracy charge. (Robinson (gang membership)).

3. W ithdrawal from a Conspiracy :

a. C ommon Law: an actor may withdraw from a conspiracy by:

i. Notifying his co-conspirators that he will no longer participate in the conspiracy,

ii. By engaging in acts inconsistent with the objects of the conspiracy.

(a) The acts or statements need not be known or actually communicated to the co-conspirators, so long as they are reasonably calculated to reach some of them.

(b) A defendant need not go the authorities or try to talk the others out of the conspiracy.

(c) However, the withdrawal must be complete and in good faith.

b. MPC Withdrawal from a Conspiracy § 5.03(6) &(7) : Is a much more stringent standard for withdrawal –


§ 5.03(6) – Withdrawal must “thwart the object of the conspiracy”

§ 5.03(7)(c) – the defendant must advise his co-conspirators of his abandonment, or notify law enforcement.

Note: An effective withdrawal marks the end of conspiratorial liability for that actor from that point on (for acts done in furtherance after his withdrawal). The defendant is still liable for acts committed before his withdrawal, thus a withdrawal is not a complete defense unless coupled with the statute of limitations.

4. The Mens Rea for Conspiracy:

a. Inferring Intent from Knowledge of the Conspiracy – People v. Lauria : and three of his customers on his telephone answerenng service were arrested for conspiracy to commit prostitution. knew at least one was a prostitute. NG.

i. In order for there to be sufficient mens rea for conspiracy, there must be knowledge and an intent to further the crime. Mere knowledge is not sufficient.

ii. Intent can be Inferred from Knowledge: In some cases, knowledge and a further fact related to the conspiracy can support an inference of intent to further the conspiracy (direct evidence always suffices):

(A) A Special Interest in the Criminal Activity (“a stake in the conspiracy”): inflated charges for services or goods; knowledge that no legitimate purpose exists for goods or services; disproportionate volume to any legitimate demand or a high percentage to the total demand goes to conspiracy.

(B) Knowledge of the Aggravated Nature of the Crime (serious felonies). Knowledge of a conspiracy to commit a dangerous felony can by itself suffice to infer intent to further it.

b. MPC Mens Rea: § 5.03 requires purpose to commit the crime.

5. Special Mens Rea Problems:

a. Mistake of Law: Some states have articulated the “corrupt motive doctrine” in conspiracy law. This means that a mistake of the governing law (didn’t know it was illegal) would exculpate one of a conspiracy charge, even if it would not exculpate one of the substantive crime.


People v. Powell - s were city officials charged with conspiring to buy supplies w/o advertising for bids. They claimed they didn’t know it was illegal. The NY Ct. App. reversed the convictions, saying: “ implicit in the meaning of the word conspiracy [is] that the agreement must be entered into with and ‘evil purpose’, as distinguished from a purpose to do the act prohibited, in ignorance of the prohibition.”

b. The Modern Trend : Rejects the “corrupt motive” doctrine and equates the mens rea for conspiracy with that of the substantive crime. The MPC follows this approach and allows for mistake of law to exculpate only where it negatives the mens rea.

c. Conspiracy in the “Heat of Passion” : Some courts hold that if two people join to kill in the heat of passion (committing voluntary M/S) they can be convicted of conspiracy to murder. The logic is that so long as they had the mens rea for the act of the agreement, they should be guilty – provocation diminishes culpability for the murder, but not for the conspiracy. Most states reject this view and allow provocation to reduce the conspiracy charge as well. (see People v. Horn (CA)).

d. Impossibilty: There are similar problems in conspiracy as there are in attempt when the issue of a legal impossibiliy arises. Some courts punish the conspiracy even if they would not punish the attempt. (See State v. Moretti, (undercover officer who was not pregnant conspired with others to get an abortion)). Others do the opposite.

e. Unilateral Conspiracy: this theory allows a conspirator to be punished for conspiracy even if the others never intended to go through with the crime. (E.g. undercover cops).

6. The Incidents of Conspiracy:

a. THE PINKERTON DOCTRINE: All co-conspirators all liable for all crimes committed by all other co-conspirators in furtherance of the object of the conspiracy, that are reasonably foreseeable as a necessary and probable consequence of the conspiracy (are within its “scope”).

i. Pinkerton v. U.S. : the Pinkerton brothers were convicted of conspiracy to defraud the IRS. Both were convicted of all the crime committed by one brother, even though one was in jail for most of the time.


ii. U.S. v. Diaz : became involved in a drug deal set up by DEA. had no knowledge that one co-conspirator had a gun. was arrested with others and b/c a gun was used the charge was raised to conspiracy to traffic in coke with a gun. The court upheld the convictin b/c it held that it was foreseeable that a gun would be involved in a drug deal.

iii. State v.Stein : told a client, a known cat burglar, that a neighbor kept large amounts of cash on hand. A year later the client committed an armed robbery at that neighbors house, getting in to a shoot out with police, assaulted the victims wife and daughter, kidnapped the daughter and led cops on a high-speed chase. NJ S. Ct. held that was liable as a conspirator for the robbery, and the assault on the family but not for the kidnapping or the assault on the cops. The Court said that these were too remote from the object – the robbery- and thus not foreseeable as a necessary and probable consequence of the object. .

iv.Note: this doctrine greatly expands liability under conspiracy, the co-conspirators need not even be aware of the crimes committed in furtherance of the object to be held liable. Absent an affirmative act of withdrawal, a conspirators liability can extend past his actual involvement in the agreement, and be imposed even if he was a minor actor. This serves not only as a deterrent but also as leverage for a prosecutor trying to turn a conspirator.

v. The MPC rejects Pinkerton’s broad liability, instead it requires proof of an actor’s intent to further the particular crime committed. “Liability for a substantive crime as an accomplice cannot be predicated on the sole fact of having been a party to a conspiracy; further inquiry must examine a person’s real culpability....”

b. The “Hearsay Exception” to Conspiracy : The hearsay rule against admission of evidence by one witness about what another person said, when the probative value of the evidence depends on the credibility of the witness, is lifted in cases of co-conspirators. Out-of-court statements by one conspirator in furtherance of the object may be admissible against another co-conspirator. In essence the law has erected the fiction that the statements of one co-conspirator are “authorized” by all the others; thus such statements are admissible against all of them as admissions, so long as the trial judge is satisfied by a preponderance of the evidence that a conspiracy exists. Note, however, this exception only applies to statements made prior to the achievement of the central object of the conspiracy.


c. Venue and Conspiracy: Generally, a co-conspirator may be tried where the agreement took place or where any overt act of any co-conspirator took place. “the leverage of conspiracy lifts [the limits of the 6th A.] from the prosecution and reduces its protection to a phantom.” J. Jackson.

d. Conspiracy and the Statute of Limitations: Most states hold that the S/L begins to run not from the time of the agreement, but from the last overt act (by any conspirator) in furtherance of the agreement.


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