Exam Information

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  1. Exam Information:

  1. Closed Book, 3 hour essay

    1. Possibly essay w/ sub-parts

    2. Hypothetically: develop the case/example

    3. MPC provisions will not be on exam itself

    4. Be prepared for other statute to work into CL analysis or MPC analysis

    5. Be prepared to address mental state requirement

  2. Contrast CL with MPC

    1. CL w/ statutory variations

    2. Note major differences between CL and MPC

    3. Ex: statutes that modify CL murder

      1. First: state here is what CL said as to murder (3 types)

        1. express malice

        2. felony murder

        3. depraved hear murder

      2. State statutes often divide murder into 1st and 2nd degree

        1. 1st: premeditated and deliberate

        2. 2nd: ….

      3. If not given a statute just mention the above in passing (don’t dwell on it): good discussion of CL rules will be almost as many points even if fail to mention this statutory stuff

    4. Ex: Attempt

      1. Some CL has been codified

  3. Ability to analogize to relevant case-law

    1. Ex: this is like case where Defendant consumed quart of wine and LSD and court found this was relevant b/c….

  4. Policy

    1. Renunciation, withdrawal, unilateral conspiracy

      1. Why law does or does not recognize these things

    2. Policy considerations in the particular circumstances

  5. Example Exam Question:

    1. I. “…..”

      1. Questions:

        1. 1(a)……

        2. 1(b)……

        3. 1(c)……

    2. Answer the question according to question as numbered

    3. Essay answer: not just (1) Yes or No and (2) why Yes or No

      1. Instead:

        1. plausible approach to question

        2. start w/ definition

        3. mention strengths

        4. then branch off

      2. Thread of Analysis through appropriate crimes

        1. apply facts to these elements of crimes

  6. Supplement: Criminal Law (by LaFave)

    1. Look to clarify understanding (Table of Contents)

    2. See relationship of principles

    3. Elements of a doctrine

  1. Introduction

  1. Contrast between Criminal and Civil Law

    1. Criminal Prosecution: intervene because conduct presents public danger

  2. Burden of Proof: Criminal: beyond a reasonable doubt

  3. Act + Intent + Causation = Liability

  4. Model Penal Code: promulgated by ALI

    1. Will be contrasted w/ Common Law throughout semester

  1. Imputability

  1. The Necessity of an Act

    1. Crime requires either a voluntary physical act or an omission when there is a legal duty to act

    2. Palmer v. City of Euclid

      1. Facts: Palmer dropped female friend off at apt.

      2. Held: statute was void for vagueness as applied to Mr. Palmer

    3. Act: necessary element to form a crime

  2. What Constitutes an Act

    1. Voluntary Act: Defendant must have committed voluntary act (subject to a few exceptions): Voluntary Act = “Actus Reus”

      1. Reflex or Convulsion – an act consisting of a reflex or convulsion does not give rise to criminal liability

      2. State v. Taft

        1. Facts: emergency brake released, charged w/ D.U.I.

        2. Held: the mere movement of a vehicle does not necessarily in every circumstance constitute a “driving” of the vehicle

    2. Voluntary Act: in course of conduct under MPC

    3. Possession: power + intent to control (conscious possession)

    4. MPC Possession: In situation: aware of control and for sufficient period of time to terminate her possession

    5. People v. Decina

      1. Facts: Defendant subject to epileptic attacks and suffered attack, vehicle jumped curb and killed 4 people

      2. Held: once Decina began to operate the vehicle that is when the act occurred.

        1. Conscious risk-taking: Negligence in this case: operating the vehicle…

    6. State v. Kimbrell Possession

      1. Facts: Charged w/ trafficking cocaine (based on possession of the cocaine), cocaine remained on table while husband was to make the drug deal

      2. Possession: power + intent to control (disposition)

        1. Ex: could have thrown it away while husband gone

      3. If possession = element of crime generally construed to be conscious possession

  3. Negative Acts/Ommission

    1. In some cases: omission may be basis for criminal liability

    2. Legal Duty: (essentially when defendant has a duty to act imposed by civil law)

      1. Relationship

      2. Statute

      3. Contract (express or implied)

      4. Voluntary assumption of care: usually if person isolated (?)

      5. Creation of peril

    3. Biddle v. Commonwealth (CB 492)

      1. Facts: severely malnourished infant, failure to feed infant

      2. Criminal omission would be based on duty of status relationship between parent and child (Failure to fulfill duty = culpable omission)

        1. Failure to feed child

    4. Commonwealth v. Teixera

      1. Facts: nonsupport for illegitimate child

      2. Omission: nonsupport

        1. Legal Duty: statute gave duty to support children

    5. Duty to act

      1. Must be legal duty and not just moral duty

      2. Absent statute requiring Good Samaritan rescue: may have breached a moral duty but not a legal duty

    6. Jones v. U.S.

      1. Facts: child neglect, 2 defendants: Green (mother) and Jones (caretaker)

      2. Who has duty?

        1. Green: parental status

        2. Jones: contract or voluntary assumption

      3. Held: trial court failed to instruct that jury must find a breach of a legal duty

    7. Davis v. Commonwealth

      1. Facts: mother froze to death or starvation, room where daughter staying had evidence of person living there

      2. Held: implied contract b/c defendant derived economic benefits (food stamps, welfare, live free in mother’s home)

    8. Van Buskirk v. State

      1. Argument, boyfriend ordered out of car, girlfriend struck him, she left, boyfriend hit later by a different car

      2. If Van Buskirk created the peril: her failure to reasonably alleviate the peril would be a culpable omission

  1. Responsibility/Mental State

  1. Mens Rea

    1. Concurrence: act and intent

      1. Must have an act in addition b/c guilty mind alone cannot constitute a criminal offense

      2. Defendant’s conduct (actus reus) often is primary evidence in proving the defendant’s mental state

    2. requirement that there be a “culpable state of mind”; intent; knowledge (“guilty mind”)

      1. Exceptions: Some crimes are defined in such a way that the “mens rea” is merely negligence or recklessness

  2. Criminal Negligence/Recklessness: substantial deviation from the standard established by law

    1. Criminal Negligence: inadvertent risk-taking

      1. Defendant should be aware of risk

      2. reasonable person would have realized the risk (Ex: Gian-Cursio)

  3. Recklessness: conscious risk taking, a gross deviation (Ex: Petersen)

    1. Recklessness:

      1. Aware of risk

      2. Consciously disregards

      3. Substantial and unjustifiable risk

    2. Elements leading to finding of criminal recklessness:

      1. if degree of risk great enough

      2. risk substantial

      3. defendant aware

    3. MPC requires that there be a conscious disregard of a known risk for an act to be reckless

    4. Objective Standard v. Subjective Standard:

      1. Objective standard – “reasonable person” (i.e what should he have done)

      2. Subjective standard – done in good faith (i.e. intent)

    5. Gian-Cursio v. State: criminal negligence

      1. Facts: Chiropractor treated TB w/ fasting, Mozian died as result

      2. Difference between medical malpractice and manslaughter: gross incompetence then may rise to level of criminal negligence

    6. State v. Petersen: Recklessness

      1. Facts: Drag race, Petersen stopped at intersection, Wille continues, hits truck and dies along w/ passenger, Warren

      2. Held: Petersen took unjustified, huge risk (gross deviation)

      3. Reckless act: setting the race in motion

        1. Risk he created continued up to and including the time of the collision

        2. Petersen helped set in motion this force (the other driver)

    7. State v. Howard: intent, recklessness, negligence

      1. Facts: shot guy getting in the way of him protecting his friend, then shot the guy

      2. Held: No reasonable basis under facts to justify negligent homicide

      3. Howard was acting intentionally: explained by his raising self-defense (intended serious bodily injury/kill)

      4. Explanation of manslaughter conviction (lower charge to manslaughter:

        1. imperfect self-defense:

          1. if defendant had unreasonable belief

          2. or if reasonable belief: did not justify “deadly force”

  4. Specific Intent

    1. General Intent: D desired to commit the act which served as the actus reus

      1. Given intent to do actus reus, the intent to do all things that are natural and probable result of the act may be presumed

    2. Specific Intent: D, in addition to desiring to bring about the actus reus, must have desired to do something further

      1. For these offense: neither negligence nor the intent to do a different crime is sufficient (Ex: burglary)

    3. Thacker v. Commonwealth

      1. 3 drunk men, “shoot lights out” of tent, fired shots that went through Mrs. Ratrie’s bed

      2. Specific Intent: mental state needed for attempted murder = intent to kill (not specific intent to do some other act, i.e. “shoot the lights out”)

  5. Other Particular States of Mind

    1. Malice

      1. Malice: implies intent to do wrong

        1. intent to annoy, vex or injure another

        2. intent to do wrongful act

      2. State v. Nastoff

        1. Facts: modified chain-saw emitted carbon, smoldered and caused fire

        2. Held: Nastoff didn’t intend to do the wrongful act the statute describes: intent to injure property (the malice the statute describes)

    2. Knowledge (Scienter)

      1. Knowledge

        1. Majority view: have actual knowledge (subjectively know)

        2. Minority view: objective: the defendant should have known

        3. MPC: A person acts knowingly under the MPC w/r/t the nature of his conduct or the surrounding circumstances, if he is “aware” that his conduct is of a certain kind or that certain circumstances exist; aware that it is practically certain that his conduct will cause that result

        4. Willful blindness/deliberate ignorance at CL

        5. MPC: if person is aware of a high probability of its existence that can be a substitute for knowledge

      2. State v. Beale Knowledge: Subjective Test

        1. Facts: antique store, customer believes items are stolen, goods put back on display and sold

        2. Held: D himself must have believed that the goods were stolen i.e. subjective test: Subjective → believed → culpability

      3. U.S. v. Jewell Willful Blindness

        1. Tijuana, “Ray” offers marijuana then offers $100 to drive car across the border, defendant looks around car and sees nothing

        2. Even if found that defendant did not know subjectively then willful blindness can serve as a proxy for knowledge

        3. Willful blindness here:

          1. Aware of high probability that there was marijuana in car (MPC)

          2. Deliberate ignorance: Jewell didn’t want to know the truth b/c of the consequences (CL)

    3. Willfulness

      1. Willful: intentional or purposeful

      2. Fields v. U.S. Willful

        1. Facts: didn’t produce 3 documents for House investigation committee

        2. Willful in this context does not mean evil purpose

        3. Willful: (here) more like deliberate purpose

    4. Strict Liability

      1. malum in se”: evil in itself → mens rea

        1. Act + mental state

        2. Recognized as bad partly b/c of actor’s state of mind

      2. malum prohitbitum”: statute criminalizes, no mental state necessary, can impose strict liability (not inherently bad: legis. authority makes act criminal)

      3. Accused’s good faith or innocent mistake is not a defense: liability depends solely upon commission of the prohibited act

      4. Commonwealth v. Olshefski Strict Liability

        1. Facts: overweight truck, weigh bill

        2. With this type of statute: does not matter that Olshefski did everything in his power to obey the law

    5. Unlawful Conduct

      1. General Intent: volitionally doing a prohibited act

        1. intent to commit the act which constitutes the crime

    6. Transferred Intent

      1. Elements:

        1. If contemplated harm was criminal

        2. And there is great similarity between that harm and the actual result

        3. Then: the actor may be held criminally liable for the actual result

      2. Gladden v. State: Transferred Intent

        1. Facts: Bad heroin deal, Gladden shot wildly at Siegel, hit 12 years old boy who died

        2. Theory of case: not that Gladden was reckless but this is intentional murder

          1. “intention follows the bullet”

      3. Cuellar v. State: Who qualifies as “another”

        1. Facts: fetus, car accident, baby born alive (emergency c-section) then died 43 hrs. later from injuries

        2. analogous to CL rule: baby must be born or in process of being born

  1. Offenses Against the Person (Homicide)

  1. Homicide: What mental states will suffice?

  2. Murder

    1. Common Law: malice aforethought, intent to kill or injure

      1. Malice aforethought (express or implied)

        1. express:

          1. Intent-to-kill

          2. Intent to commit grievous bodily injury

        2. implied:

          1. felony-murder rule: commission of underlying felony: presumption of malice

          2. depraved heart murder: so extremely reckless or indifferent to value of human life generally that malice is implied

      2. Depraved Heart Murder (reckless indifference)

        1. universal malice, not directed at any one person

        2. Depraved Heart Murder Elements:

          1. know risk but disregard

          2. unjustifiable risk to human life

          3. no social utility

        3. King v. State

          1. Facts: followed out of nightclub, then shot at tires of vehicle

          2. Reckless → extreme indifference → life generally

            1. High degree of risk: death

            2. Awareness of risk: consciously disregard it

        4. Awareness of Risk: Actual Risk v. Probability (Subjective standard: awareness of risk)

          1. Ex #1: walking down suburban street, shoots out windows of home, hits occupant: Jury will find: person aware of risk

          2. Ex #2: walking in forest, cabin appears abandoned, shoot out windows, there was occupant who was killed: Harder case

        5. Conduct = gross deviation from the standard of care a reasonable person would exercise

        6. Consider the possible social utility: if justifiable for taking the high degree of risk

          1. substantiality of the risk: likelihood / probability that it will cause harm, but the higher the justification for the conduct you can have a lower degree of risk.

        7. State v. Hokenson Part of continuous transaction: criminally liable

          1. Facts: D calls in prescription, enters w/ bomb and knife, was under arrest, bomb went off in officer’s hands

          2. We are presuming recklessness for what period of time?

            1. Responsible for the forces set in motion by your recklessness → continuous transaction

            2. Until the forces are not in motion anymore: you will be strictly liable

      3. Felony-Murder

        1. Felony-Murder Elements:

          1. unintended killing

          2. underlying felony: no mens rea for murder but need it for underlying felony

          3. Inherently dangerous felony

        2. Presumption of Malice: b/c underlying felony is inherently dangerous

        3. Inherently Dangerous Felony Test:

          1. Must look at the felony in the abstract

          2. Must show: high probability of risk of death (more than 50%)

          3. Natural and probable consequence (Ex: Patterson below: is death natural and probable consequence of furnishing cocaine?)

        4. People v. Phillips: Inherently Dangerous Felony (abstract)

          1. Facts: chiropractor treating 8 year old for cancer

          2. Held: No felony-murder applied here b/c not an inherently dangerous felony

            1. Here: person could commit fraud (medical fraud) w/o ever causing a serious risk that someone would die

        5. People v. Patterson: Inherently Dangerous Felony Issue

          1. Facts: Defendant supplied cocaine, Jennie Licerio died

          2. Held: case remanded to determine if felony of furnishing cocaine = inherently dangerous

        6. Problem: Felony-Murder Rule divorces responsibility element from the culpability element (Presumes malice)

          1. If criminal liability rests on moral culpability: then isolate F-M rule as much as possible

        7. State v. Mayle When does felony end?

          1. Facts: attempted robbery at McDonald’s in Ohio

          2. Held: felony still occurring when the officer was shot

          3. F-M rule includes: things immediate and that immediately follow the commission/attempt of the felony

          4. Complete and continuous transaction until they reach a place of safety

        8. People v. Wilson Merger Principle

          1. Facts: killing of Mrs. Wilson in the bathroom

          2. Court concerned: losing distinctions between different types of murders: Assault w/ deadly weapon merging into homicide

            1. Ex: Voluntary MS always a felony and if it is allowed as a predicate for F-M then voluntary MS will always get bootstrapped up to murder

        9. People v. Hansen Merger Principle: Assaultive Conduct

          1. Facts: clearly reckless conduct (if he would have known the kids were inside he would not have shot)

          2. Shooting into occupied building: Assaultive conduct (felony)

          3. Held: doesn’t merge into homicide

        10. California stance on F-M rule:

          1. Merger Principle: If all you have in the box is “assault”: not enough for F-M

        11. Human Shield Cases: Clearly a case of murder as it is a reckless act with extreme indifference to human life.

      4. Premeditation/Deliberate Murder

        1. Elements: (measuring cold calculated judgment v. impulse)

          1. Willful → intentional

          2. Deliberate → thought

            1. Cool mind that is capable of reflection

          3. Premeditated → beforehand

            1. Actual reflection beforehand

        2. People v. Perez Planning/Motive/Manner

          1. Facts: victim stabbed 38 times, D went to same H.S.

          2. Typical premeditation categories:

            1. Planning

            2. Motive

            3. Manner

          3. Held: sufficient evidence to support jury’s finding of premeditated/deliberate murder

        3. Length of time to form: does not have to be long

          1. Just: cool reflection showing conscious decision to kill victim (rule out impulse)

        4. Provocation: Something considered provocation can negate the cool deliberation needed for premeditation

          1. 2nd degree murder: can include intentional killing

          2. 1st degree murder: must add cool mind and actual reflection

        5. State v. Schrader No appreciable time required to form intent to kill

          1. Facts: D to purchase war souvenirs, argument over authenticity of German sword

          2. Deliberate/premeditated: held to be knowing and intentional

        6. Midgett v. State Homicide must be premeditated/deliberate

          1. Facts: Father hit malnourished child in stomach and killed him

          2. Held: Father intended abuse but had no intent to kill

          3. Ex: if D thought for a long time planned to kill boy and then got drunk to get up courage

            1. Court likely to find: premeditation and deliberation

        7. State v. Forrest Moral Justification not Adequate to reduce charges

          1. Facts: D kills father, terminally ill in hospital

          2. D admitted intended this (put father out of misery)

          3. Elements: Armed, D’s statement, Multiple shots (cocked pistol), No provocation, Helpless victim

          4. Use Elements to determine: If cool mind and Deliberate act

    2. Statutory Homicide

      1. 1st Degree

        1. premeditated and deliberate

        2. Some jurisdictions: focus on the method/means, may include F-M

      2. 2nd Degree

        1. include all other murders: go back to Common Law: every C.L. murder not in 1st degree category falls in this catch-all category

    3. MPC Murder (CB 216)

      1. Purposely/knowingly: similar to Common Law Express Murder

      2. Felony Murder: similar to Common Law (presumption of malice)

        1. enumerated felonies (MPC 210.2(1)(b))

      3. Recklessly: extreme indifference to value of human life: similar to C.L. depraved heart

  3. Voluntary Manslaughter

    1. Voluntary Manslaughter Policy Issues:

      1. Recognize human frailty: people sometimes act out of heat of passion

      2. Search for rule that mitigates culpability

    2. Common Law

      1. Intentional killing of another human being

      2. Heat of Passion: extreme emotional state

        1. sudden

        2. subjective test: did D lose control?

      3. Adequate Provocation

        1. legal adequacy: defined in rigid CL categories

        2. Defendant acts in response to a provocation that a reasonable person would lose self-control (objective inquiry)

Legal Provocation

Objective Test

Insufficient Provocation

Severe assault

Mutual combat


Illegal arrest

Injury to 3rd parties

Informational words

(if would have equaled adequate provocation)

reasonable man

mere words

      1. State v. Guebara Mere Words (Provocation = purely objective standard)

        1. Facts: D shot common law wife who had served him w/ divorce papers and misdemeanor assault charges

        2. Held: no adequate provocation: Mere words not sufficient provocation

      2. State v. Stafford Adequate Provocation

        1. Facts: husband knocks glasses off her, she then kills husband

        2. Held: murder conviction stands: Minor assault not sufficient provocation

      3. People v. Chevalier Adequate Provocation?

        1. Facts: wives taunting about committing adultery

        2. Held: not adequate provocation

          1. Communication of adultery is not adequate here: History of marital discord so not a sudden shock when husband finds out

    1. State v. Dumlao (CB 190) Subjective/Objective Test

      1. Facts: very jealous husband, shot mother-in-law

      2. Announces 4 Part test: Subjective/Objective Test (incorporates CL elements)

        1. adequate provocation (objective)

        2. provocation in fact (subjective)

        3. cooling off- reasonable person (objective)

        4. Did D cool off? (subjective)

      3. Hawaii adopted different statutory definition of manslaughter from CL

    2. Statutes with Manslaughter:

      1. Incorporate C.L. or M.P.C.

    3. MPC Manslaughter (recognizes mitigation): 210.3(1)(b)

      1. Elements:

        1. Extreme Mental or Emotional Disturbance (subjective)

        2. Reasonable explanation/excuse (from perspective of person in actor’s situation)

      2. MPC also includes “recklessly”: allowing for mitigation

      3. Reason for MPC standard: CL manslaughter doctrine divorced the legal standard from “mens rea”

        1. Recognizes: Manslaughter deals w/ mitigation (Still murder but D is somewhat less culpable)

Common Law


Heat of Passion (sudden)

Extreme Mental/Emotional Disturbance

Provocation (adequate and rigid construction)

Reasonable Explanation or Excuse (actor’s situation)

    1. MPC: criminally negligent homicide

    2. MPC v. CL regarding Manslaughter

      1. CL test = easy to administer

      2. MPC Test: asks jury to determine:

        1. Extreme Mental/Emotional disturbance

        2. Reasonable Explanation (difficult)

          1. Ex: put yourself in Dumlao’s shoes (hypersensitive, jealous man: is this reasonable excuse)

      3. Heat of Passion may not need to be sudden under MPC as at CL

        1. See: Dumlao (wife talked to men for long time) and Forrest

  1. Involuntary Manslaughter/Negligent Homicide

    1. Common Law: Involuntary Manslaughter

      1. Elements:

        1. Criminal negligence

          1. inadvertent risk taking/failure to perceive unjustifiable risk

        2. Death is accidental

      2. State v. Hardie (HO 58): Failure to perceive risk a reasonable person would

        1. Facts: D joked w/ gun (thought didn’t work), shot neighbor Mrs. Suften

        2. Held: Criminal negligence: D fails to see risk that reas. person would have observed (pointing a deadly weapon at another person)

      3. State v. Bier (CB 202) Consequences reasonably foreseeable from an objective standpoint

        1. Facts: D cocked gun, challenged wife, both intoxicated

        2. Held: criminally responsible despite ambiguity (did she pull trigger?)

          1. Foreseeable: sufficient b/c foreseeable someone would be shot

        3. Act of Negligence: pulling gun out of closet, loading it and cocking it

          1. As long as D’s negligent act is direct cause of death (set events in motion)

        4. Victim was foreseeably endangered in a manner and to a degree that matched what happened

    2. Statutory: Involuntary MS/Negligent Homicide

    3. MPC: Negligent Homicide

      1. Negligent: if defendant fails to perceive substantial or unjustifiable risk

  2. Causation: causal link between act and harmful result

    1. Substantial Factor Test, Felony-Murder

      1. People v. Stamp F-M is strict liability doctrine, substantial factor

        1. Facts: chest pains before and after robbery

        2. Held: Robbers liable under F-M rule

          1. heart attack: even if unforeseen, still liable b/c F-M = strict liability (all that occurs during commission of felony)

        3. Causation here: shortening life (substantial factor)

        4. Ex: V hides, not lead out by gunpoint, V still knew robbery was going on, then V dies shortly after

          1. Unseen/unforeseen victim will not undercut finding that robbery was cause of death b/c still substantial factor

    2. Need: Both Cause in Fact and Proximate Cause

      1. State v. Sauter: Poor medical treatment does not break chain of causation

        1. D = stabbing victim, surgeon performed emergency surgery but failed to repair a blood vessel, V bled to death

        2. Held: medical malpractice was not an intervening cause

        3. Only if doctor’s malpractice is sole cause of V’s death does it break the chain of causation for criminal liability

          1. Ex: if D causes minor wound and surgeon commits major blunder

        4. But-For Cause

          1. But-for the knife attack, V would not have been in surgery and subject to surgeon’s malpractice

        5. Proximate Cause: sufficiently close link (sufficiently connected)

          1. The longer the time in between: the more tenuous the connection

        6. Sole Cause: if an act is the only cause of the injury and there is absolutely nothing else which contributed to the injury in any way, the act is the proximate cause of the injury

          1. However an act need not be the sole cause in order to be criminal

    3. Letner v. State (CB 593): Normal Response Does not break Chain of Causation

      1. Shooting from cliff, Walter jumps out of boat, boat capsizes so Alfred and Walter both drown

      2. Held: Normal response by victim does not break causation and liability of D

        1. Not an unanticipated result: a boat occupant would jump out of boat

    4. Campbell v. State: Agency Theory v. Proximate Cause for F-M

      1. Facts: cab driver was victim of robbery, Either policeman or cab driver shot/killed co-felon

      2. Held: felon #2 not liable for death of felon #1

      3. Co-felon liable for crimes committed by other felon under F-M rule

        1. “Agency Theory”: liability for deaths caused when furthering felony commission

      4. Minority View is Proximate Cause: is act of committing robbery the Proximate Cause of felon #1 being shot?

        1. Ex: Victim shooting policeman

          1. But-For the felony: victim would not be acting in self-defense and have occasion for bad aim and shooting the police officer

  1. Attempt and Kindred Problems

  1. Inchoate Crimes: incomplete b/c have some unachieved goal

    1. These theories have a lot of overlap

      1. Attempt: punishing under substantive law (big area)

      2. Solicitation: invite someone else

        1. If person successfully completes attempt or solicitation: merges into completed crime

      3. Conspiracy: conspire w/ others

  2. Attempt In General

    1. Intent to commit

      1. Mental State: would have been enough to satisfy mens rea of substantive crime

      2. Intent to act w/ the purpose of causing the result element of the target offense

    2. Act toward commission

      1. some overt act in furtherance of plan of criminal conduct

      2. beyond preparation

  3. Definitions

    1. Act Towards Commision

      1. Moffet v. State Must be perpetration to be liable for attempt

        1. Facts: Moffett force Linda to write suicide note, victim escaped

        2. Act towards commission: beyond preparation

    2. Substantial Step

      1. Model Penal Code (substantial step)

        1. conduct culminates in crime

        2. strongly corroborative: actor’s purpose

      2. Section 5.01(2): Conduct which may be held to be a substantial step:

        1. lying wait

        2. enticing victim to go to the place contemplated for the crime’s commission

        3. reconnoitering the place contemplated for commission of the crime

        4. unlawful entry of structure/vehicle/enclosure where contemplated crime to be committed

        5. possession of materials to be employed in commission of the crime (designed for unlawful use or serve no lawful purpose under circumstances)

        6. possession/collection of materials at or near place contemplated for commission of the crime

        7. soliciting an innocent agent to engage in conduct constituting an element of the crime

      3. Young v. State: Substantial Step

        1. Facts: Young w/ gun and mask comes up to bank but it’s closed

        2. Attempt under Substantial Step

          1. Trying to open door = point of attempt here

          2. At least an attempt when gets out of car, clips on scanner, puts on mask (substantial step)

    3. Last Proximate Act: D has done everything to fix liability for the crime if the result actually occurs

      1. Ex: wife wants to poison and kill husband, puts poison in his whiskey, on way home husband hit and killed by bus

        1. D has done everything that is needed and everything intended for desired result to occur (Last Proximate Act)

    4. “Dangerous Proximity”: what is left to be done? Closeness in space and time to completing the crime…

      1. Examines if physically close to intended victim or set in motion a chain of events that created a high probability that the crime would be completed

      2. reasonable probability the crime would have been complete but for timely interference

      3. People v. Rizzo: Dangerous Proximity/preparatory phase is not attempt

        1. Facts: Rizzo planned to rob Charles Rao of payroll, looked for him all over NYC

        2. Held: conduct was not an attempt

        3. Opportunity to commit crime comes when Rizzo is in presence (finds) victim (Here no opportunity presented although there was an intent to commit the crime)

  4. Impossibility

    1. Factual Impossibility

        1. intent: to commit crime

        2. inability to commit crime due to unknown fact

      1. Ex: would be pick-pocket reaching into empty pocket

      2. Not a defense: almost never successful

      3. People v. Rojas (CB 472): Factual Impossibility/Police intervention did not destroy criminality of attempt

        1. Facts: stole $4500 of electrical conduit

        2. Held: guilty of attempt to receive stolen goods

        3. Holding here depends on D not knowing the goods had been recovered

    2. Legal Impossibility

        1. intent: to commit crime

        2. D does everything intended to do

        3. What D intended to do and did is not a crime

      1. Everything goes as planned but not a crime: D mistaken about crime’s definition

      2. Constitutes a defense: Courts will likely acquit if true legal impossibility

      3. Booth v. State: Legal Impossibility

        1. stolen coat → legal v. factual impossibility

        2. Held: not guilty, Intended consequences was not a crime

    3. Factual v. Legal Impossibility:

      1. True Factual Impossibility

        1. Only thing precluding actor from what he intends to complete:

          1. failure of means b/c of mistaken assumption regarding a fact

      2. True Legal Impossibility

        1. Ex: Actor thinks it is illegal to shoot squirrels

          1. But it is not prohibited by law

      3. Harder Cases (can make these come out either way):

        1. Ex #1: D shoots at tree stump, thinks it was a person

        2. Ex #2: D shoots at V, but V was already dead

          1. Underlying issue: V dead/not dead

        3. Mistaken assumption about legal status of something (Hybrid Impossibility)

          1. objective is criminal: if underlying assumptions were correct the criminal would have committed the substantive crime

          2. Hybrid Impossibility: criminal objective but failure b/c of legal status

    4. MPC:

      1. Test:

        1. You’re guilty if you thought you were committing a crime

        2. You’re not guilty if the actions don’t amount to a crime

      2. no defense for factual impossibility: Section 5.01(1)(b)

      3. Ex: put time bomb in building, bomb would explode in 1,000 hours but timing device failed

        1. Would cause result if circumstances were as he believed them to be (Falls under (1)(b))

    5. Ex: D shoots at V (Present Capacity Example ??)

      1. Include:

        1. V out of range

        2. Unloaded gun/or shooting blanks

      2. No way D could kill V in same way that Oviedo could never distribute heroin (b/c substance was not heroin)

      3. Physical Impossibility: (failure of means) is not a defense to attempt

        1. could be defense to the completed crime

  5. Intent: not very problematic

    1. Differentiate: preparation v. perpetration

    2. Can still have intent but it is physically impossible:

      1. Ex: old man is impotent, wants to commit rape

        1. guilty of attempt

        2. cannot be guilty of completed crime of rape

    3. State v. Mitchell: Intent and Present Capacity

      1. D fired gun where he thought Warren was lying but Warren not there

      2. took all steps to kill, even shot into room, but man wasn’t there

      3. Held: guilty of attempt

        1. Intent and present capacity

        2. Here: clear specific intent to shoot Warren

  6. Abandonment/Renunciation of Criminal Purpose

    1. MPC: recognizes renunciation as an affirmative defense but it must be voluntary and complete (limited circumstances)

      1. Abandonment must be

        1. voluntary

        2. complete

    2. Voluntary

      1. Not voluntary if motivated by something unknown at the beginning of the commission (Frustration of criminal purpose)

      2. Ex: D (Stewart) demands all the $ in gas station, attendant says $ kept in lock box behind pumps and attendant does not have key

        1. not voluntary: Stewart was frustrated in his criminal purpose

    3. Complete

      1. Not complete if decide to do it at a better time (postponement)

      2. Ex: can’t be approaching gas station, ready to rob, see police officer and decide to come back later

    4. Not all CL jurisdictions recognize abandonment: once someone has gone so far as to meet elements of attempt, don’t let them off

  7. Solicitation

    1. Solicitation Defined (at Common Law):

      1. Commands, encourages, entices

      2. Another to commit a crime

    2. Solicitation comes farther back in time than attempt

      1. Conspiracy: between solicitation and attempt

    3. Solicitation is often (but not always) an independent offense

    4. State v. Blechman (CB 486) Target Offense need not be carried into effect

      1. If solicitee commits crime: then solicitor liable for substantive crime (could be: aider/abettor)

    5. Ex: abandoned house is eyesore, “I wish someone would burn this house down”

      1. Act not specific enough

      2. Intent: if I say it as a joke and don’t intend for you to do it then there is no intent and no crime

    6. Ex: leave message, $500 to burn house down, message left on answering machine but person has moved and never gets message

      1. Solicitation still punishable even if not communicated

  1. Conspiracy (Chapter 6)

  1. Elements: Dual Intent:

    1. Intent to agree

    2. Intent to commit specific crime

  2. Proof of intent/knowledge not always required for conspiracy

    1. Ex: Food & Drug Act, can violate by transporting adulterated food w/o knowledge that the food is adulterated

  3. Solicitation can merge into Conspiracy: when solicitor attains agreement of solicitee

  4. Wharton’s Rule Defenses: crimes that require concerted action of 2 people

    1. Agreeing to such action does not allow for conspiracy charge

    2. Ex: dueling, adultery: can’t have conspiracy between 2 people in dueling or in adultery

    3. Ex: Harris v. Miles in duel, Bennet as Harris’ second and Frech as Miles’ second

      1. 3rd party exception to Wharton’s Rule: Wharton’s Rule would not apply and could have conspiracy between the 4 parties contemplating this duel

    4. Applying Wharton’s Rule: look at elements of crime in the abstract

  5. People v. Swain (CB 519): Dual Intent

    1. Drive-by shooting, van w/ people shooting semi-auto weapons

    2. Mens Rea requirements to prove conspiracy: here Court talks about dual intent:

      1. Intent to agree (conspiracy = specific intent crime)

      2. Collateral intent: intent to kill

    3. Held: jury may have convicted on unpermissible theory:

      1. Implied malice not permissible in conspiracy context b/c need a specific intent to kill (Ex: F-M = accidental killing)

    4. Possible: this was not an intended killing

      1. Jury must examine evidence:

        1. one person bragged about shooting the kid

        2. group started out w/ revenge: retribution for the stolen automobile

  6. People v. Lauria (HO #2, 1) Knowledge to prove Intent

    1. Facts: Lauria provides legitimate service, telephone answering service

    2. Evidence that Lauria has positive knowledge that prostitutes using the service

    3. Conspiracy:

      1. Knowledge

      2. Intent to promote

    4. Knowledge

      1. Illicit purpose: State requires: intent to promote the illicit purpose

    5. Held: Lauria cannot be charged w/ prostitution or conspiracy to commit prostitution

      1. No evidence that Lauria agreed to assist subscribers in their prostitution business

    6. How state can prove intent from knowledge: Inference of intent beyond mere knowledge

      1. Stake in venture: tends to show if person had knowledge then intending to promote

        1. Here: Lauria has separate records, charges $1/call for prostitute customers and $.50/call for others

        2. inference: intends to assist prostitutes in promoting business

      2. No legal purpose

        1. Here: telephone answering service could be legitimate

        2. Falcone: sugar, yeast, cans supplied to distillers

          1. Not enough to infer intent to promote unlawful distilling business

        3. Direct Sales: morphine, country doctor, 300 times the need for the community, stronger than normal tablets

      3. Disproportionate Volume or Percentage:

        1. Here: if Lauria only provides services to prostitutes

        2. Falcone: if all sugar was being sold to illegal distillers

        3. Direct Sales: volume discounts, 50% of volume to country doctor

      4. Aggravated Crime

        1. Here: if Lauria knew a high percentage of his customers were kidnappers and using his services to collect ransom

        2. Even if goods have potential for legitimate use, if the supplier of the goods knows of the purchaser’s intended use of the good for aggravated crime

  7. Pinkerton v. U.S. (CB 527) Imputing liability to Conspirators who didn’t participate in acts

    1. Facts: violation of IRS laws (violating substantive laws), Walter engaged in the conduct, no evidence that Daniel participated yet both convicted of substantive offense

    2. Held: each of conspirators act as agent for the other (hold both brothers liable for substantive crime)

      1. Commission of overt act by one = commission of overt act by all

    3. Imputing liability to a person who didn’t participate in acts

      1. Ex: agree to only use blackjack to rob, don’t want to hurt victim, victim resists, Walter hits victim and victim dies

        1. Daniel still liable: furtherance of conspiracy and reasonably foreseeable

      2. Ex: conspiracy to shoot animals out of season, Walter holds up a store

        1. Here: not foreseeable, out of realm of what parties intended

        2. Court will likely find: not in furtherance of conspiracy

Two Theories of Vicarious Liability

Pinkerton: Conspiracy


- Agency

- Furtherance

- Crime

- Agency

- Furtherance

- Dangerous Felony

Any criminal objective achieved in furtherance of conspiracy

Crime committed in furtherance: homicide

Foreseeable: natural and probable consequence of agreement


*** Note: There will be overlap w/ these 2 theories of vicarious liability when the crime committed in furtherance is homicide

  1. People v. Sconce (HO #2, 7): Withdrawal from Conspiracy

    1. Facts: plan to blow up Estephan’s car

      1. Sconce → Garcia ($10,000)

      2. Garcia → Dutton ($5,000)

      3. Sconce then calls it off

    2. Held: Withdrawal = defense to conspiracy if before overt act

    3. Overt act has to be in furtherance of the conspiracy

      1. overt act of one fixes liability for all in conspiracy

      2. any crimes then in furtherance of the conspiracy → liability attributable to all in the conspiracy

    4. To be effective the withdrawal must be communicated to all parties to conspiracy

    5. 2 types of withdrawal defenses talked about by Court:

      1. Defense to Crime of Conspiring to commit murder

      2. Defense to terminate Pinkerton liability

    6. Pinkerton withdrawal can occur after the conspiracy is complete

      1. Will be a defense for other crimes (defense going forward)

Two Types of Withdrawal



No conspiracy liability

Conspiracy Liability

Complete Defense

- No liability for crimes by co-conspirators

- Negates Pinkerton liability after withdrawal

    1. Overt Act Jurisdiction:

      1. conspiracy not complete until:

        1. Agreement

        2. Overt act

    2. Non-Overt Act Jurisdiction

      1. Conspiracy complete with just agreement → withdrawal will not be a defense to conspiracy

  1. MPC comparison to Withdrawal to Conspiracy Concepts

    1. Renunciation (MPC) (CB 539): similar to withdrawal theory

      1. D renounce

      2. Voluntary and complete renunciation

      3. Thwart success

    2. What constitutes thwart success?

      1. conspiracy set in motion this group danger so high requirement “to thwart” because w/ just a withdrawal still a good chance the criminal actions will go forward

    3. MPC requires overt act for conspiracy unless 1st degree felony

      1. talking about murdering someone: that is sufficient manifestation

    4. Successful renunciation under MPC has same effect as Withdrawal at CL (before overt act)

    5. MPC does not incorporate Pinkerton liability

      1. Liability for substantive crime for being part of conspiracy is dealt with as separate issue (aiding/abetting)

  2. Abandonment/Termination

    1. Conspiracy ends:

      1. Conspirators have achieved the objectives they intended to achieve in furtherance of the conspiracy

      2. If all members of conspiracy decide to abandon their plan for whatever reason

  3. U.S. v. Feola (HO #2, 10) Conspiracy can’t require more than substantive crime

    1. Facts:

      1. Assaulting federal official

      2. Conspiracy

    2. Held: Conspiracy statute does not require knowledge that was federal official

      1. Feola: D had intent to assault regardless of whether it was a federal official

    3. Element of crime proving that V = federal official held to be jurisdictional element (Thus not element of the crime)

  4. Marquiz v. People (CB 530): Rule of Consistency

    1. Facts: 3 men took Debra Terhorst to Lookout Mtn. and stabbed her

    2. “Rule of Consistency”: When all Defendants are tried together:

      1. As long as there is one conspirator who has not been brought to trial on the merits: can find only D guilty of conspiracy

    3. MPC: allows conspiracy as one person’s agreement (unilateral theory)

      1. Under MPC: appears no need for “Rule of Consistency”

  5. People v. Foster (HO #2, 17) Unilateral Conspiracy

    1. Facts: Foster talked w/ Ragsdale, Ragsdale feigned agreement (never overtly agreed to conspiracy)

    2. Held: the amendment did not adopt the unilateral conspiracy theory

    3. Solicitation (a person): Unilateral conspiracy appears to collapse into solicitation

    4. Solicitation: As solicitor I am enticing another to commit the crime for me

      1. Inviting someone to join crime may not equal solicitation

    5. Motivation for unilateral theory under MPC illustrated here:

      1. Foster had criminal intent/purpose

      2. Foster no less guilty b/c Ragsdale feigned agreement

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