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Exam Information: Closed Book, 3 hour essay Possibly essay w/ sub-parts Hypothetically: develop the case/example MPC provisions will not be on exam itself Be prepared for other statute to work into CL analysis or MPC analysis Be prepared to address mental state requirement Contrast CL with MPC CL w/ statutory variations Note major differences between CL and MPC Ex: statutes that modify CL murder First: state here is what CL said as to murder (3 types) express malice felony murder depraved hear murder State statutes often divide murder into 1st and 2nd degree 1st: premeditated and deliberate 2nd: …. 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 Ex: Attempt Some CL has been codified Ability to analogize to relevant case-law Ex: this is like case where Defendant consumed quart of wine and LSD and court found this was relevant b/c…. Policy Renunciation, withdrawal, unilateral conspiracy Why law does or does not recognize these things Policy considerations in the particular circumstances Example Exam Question: I. “…..” Questions: 1(a)…… 1(b)…… 1(c)…… Answer the question according to question as numbered Essay answer: not just (1) Yes or No and (2) why Yes or No Instead: plausible approach to question start w/ definition mention strengths then branch off Thread of Analysis through appropriate crimes apply facts to these elements of crimes Supplement: Criminal Law (by LaFave) Look to clarify understanding (Table of Contents) See relationship of principles Elements of a doctrine Introduction Contrast between Criminal and Civil Law Criminal Prosecution: intervene because conduct presents public danger Burden of Proof: Criminal: beyond a reasonable doubt Act + Intent + Causation = Liability Model Penal Code: promulgated by ALI Will be contrasted w/ Common Law throughout semester Imputability The Necessity of an Act Crime requires either a voluntary physical act or an omission when there is a legal duty to act Palmer v. City of Euclid Facts: Palmer dropped female friend off at apt. Held: statute was void for vagueness as applied to Mr. Palmer Act: necessary element to form a crime What Constitutes an Act Voluntary Act: Defendant must have committed voluntary act (subject to a few exceptions): Voluntary Act = “Actus Reus” Reflex or Convulsion – an act consisting of a reflex or convulsion does not give rise to criminal liability State v. Taft Facts: emergency brake released, charged w/ D.U.I. Held: the mere movement of a vehicle does not necessarily in every circumstance constitute a “driving” of the vehicle Voluntary Act: in course of conduct under MPC Possession: power + intent to control (conscious possession) MPC Possession: In situation: aware of control and for sufficient period of time to terminate her possession People v. Decina Facts: Defendant subject to epileptic attacks and suffered attack, vehicle jumped curb and killed 4 people Held: once Decina began to operate the vehicle that is when the act occurred. Conscious risk-taking: Negligence in this case: operating the vehicle… State v. Kimbrell Possession Facts: Charged w/ trafficking cocaine (based on possession of the cocaine), cocaine remained on table while husband was to make the drug deal Possession: power + intent to control (disposition) Ex: could have thrown it away while husband gone If possession = element of crime generally construed to be conscious possession Negative Acts/Ommission In some cases: omission may be basis for criminal liability Legal Duty: (essentially when defendant has a duty to act imposed by civil law) Relationship Statute Contract (express or implied) Voluntary assumption of care: usually if person isolated (?) Creation of peril Biddle v. Commonwealth (CB 492) Facts: severely malnourished infant, failure to feed infant Criminal omission would be based on duty of status relationship between parent and child (Failure to fulfill duty = culpable omission) Failure to feed child Commonwealth v. Teixera Facts: nonsupport for illegitimate child Omission: nonsupport Legal Duty: statute gave duty to support children Duty to act Must be legal duty and not just moral duty Absent statute requiring Good Samaritan rescue: may have breached a moral duty but not a legal duty Jones v. U.S. Facts: child neglect, 2 defendants: Green (mother) and Jones (caretaker) Who has duty? Green: parental status Jones: contract or voluntary assumption Held: trial court failed to instruct that jury must find a breach of a legal duty Davis v. Commonwealth Facts: mother froze to death or starvation, room where daughter staying had evidence of person living there Held: implied contract b/c defendant derived economic benefits (food stamps, welfare, live free in mother’s home) Van Buskirk v. State Argument, boyfriend ordered out of car, girlfriend struck him, she left, boyfriend hit later by a different car If Van Buskirk created the peril: her failure to reasonably alleviate the peril would be a culpable omission Responsibility/Mental State Mens Rea Concurrence: act and intent Must have an act in addition b/c guilty mind alone cannot constitute a criminal offense Defendant’s conduct (actus reus) often is primary evidence in proving the defendant’s mental state requirement that there be a “culpable state of mind”; intent; knowledge (“guilty mind”) Exceptions: Some crimes are defined in such a way that the “mens rea” is merely negligence or recklessness Criminal Negligence/Recklessness: substantial deviation from the standard established by law Criminal Negligence: inadvertent risk-taking Defendant should be aware of risk reasonable person would have realized the risk (Ex: Gian-Cursio) Recklessness: conscious risk taking, a gross deviation (Ex: Petersen) Recklessness: Aware of risk Consciously disregards Substantial and unjustifiable risk Elements leading to finding of criminal recklessness: if degree of risk great enough risk substantial defendant aware MPC requires that there be a conscious disregard of a known risk for an act to be reckless Objective Standard v. Subjective Standard: Objective standard – “reasonable person” (i.e what should he have done) Subjective standard – done in good faith (i.e. intent) Gian-Cursio v. State: criminal negligence Facts: Chiropractor treated TB w/ fasting, Mozian died as result Difference between medical malpractice and manslaughter: gross incompetence then may rise to level of criminal negligence State v. Petersen: Recklessness Facts: Drag race, Petersen stopped at intersection, Wille continues, hits truck and dies along w/ passenger, Warren Held: Petersen took unjustified, huge risk (gross deviation) Reckless act: setting the race in motion Risk he created continued up to and including the time of the collision Petersen helped set in motion this force (the other driver) State v. Howard: intent, recklessness, negligence Facts: shot guy getting in the way of him protecting his friend, then shot the guy Held: No reasonable basis under facts to justify negligent homicide Howard was acting intentionally: explained by his raising self-defense (intended serious bodily injury/kill) Explanation of manslaughter conviction (lower charge to manslaughter: imperfect self-defense: if defendant had unreasonable belief or if reasonable belief: did not justify “deadly force” Specific Intent General Intent: D desired to commit the act which served as the actus reus Given intent to do actus reus, the intent to do all things that are natural and probable result of the act may be presumed Specific Intent: D, in addition to desiring to bring about the actus reus, must have desired to do something further For these offense: neither negligence nor the intent to do a different crime is sufficient (Ex: burglary) Thacker v. Commonwealth 3 drunk men, “shoot lights out” of tent, fired shots that went through Mrs. Ratrie’s bed 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”) Other Particular States of Mind Malice Malice: implies intent to do wrong intent to annoy, vex or injure another intent to do wrongful act State v. Nastoff Facts: modified chain-saw emitted carbon, smoldered and caused fire Held: Nastoff didn’t intend to do the wrongful act the statute describes: intent to injure property (the malice the statute describes) Knowledge (Scienter) Knowledge Majority view: have actual knowledge (subjectively know) Minority view: objective: the defendant should have known 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 Willful blindness/deliberate ignorance at CL MPC: if person is aware of a high probability of its existence that can be a substitute for knowledge State v. Beale Knowledge: Subjective Test Facts: antique store, customer believes items are stolen, goods put back on display and sold Held: D himself must have believed that the goods were stolen i.e. subjective test: Subjective → believed → culpability U.S. v. Jewell Willful Blindness Tijuana, “Ray” offers marijuana then offers $100 to drive car across the border, defendant looks around car and sees nothing Even if found that defendant did not know subjectively then willful blindness can serve as a proxy for knowledge Willful blindness here: Aware of high probability that there was marijuana in car (MPC) Deliberate ignorance: Jewell didn’t want to know the truth b/c of the consequences (CL) Willfulness Willful: intentional or purposeful Fields v. U.S. Willful Facts: didn’t produce 3 documents for House investigation committee Willful in this context does not mean evil purpose Willful: (here) more like deliberate purpose Strict Liability “malum in se”: evil in itself → mens rea Act + mental state Recognized as bad partly b/c of actor’s state of mind “malum prohitbitum”: statute criminalizes, no mental state necessary, can impose strict liability (not inherently bad: legis. authority makes act criminal) Accused’s good faith or innocent mistake is not a defense: liability depends solely upon commission of the prohibited act Commonwealth v. Olshefski Strict Liability Facts: overweight truck, weigh bill With this type of statute: does not matter that Olshefski did everything in his power to obey the law Unlawful Conduct General Intent: volitionally doing a prohibited act intent to commit the act which constitutes the crime Transferred Intent Elements: If contemplated harm was criminal And there is great similarity between that harm and the actual result Then: the actor may be held criminally liable for the actual result Gladden v. State: Transferred Intent Facts: Bad heroin deal, Gladden shot wildly at Siegel, hit 12 years old boy who died Theory of case: not that Gladden was reckless but this is intentional murder “intention follows the bullet” Cuellar v. State: Who qualifies as “another” Facts: fetus, car accident, baby born alive (emergency c-section) then died 43 hrs. later from injuries analogous to CL rule: baby must be born or in process of being born Offenses Against the Person (Homicide) Homicide: What mental states will suffice? Murder Common Law: malice aforethought, intent to kill or injure Malice aforethought (express or implied) express: Intent-to-kill Intent to commit grievous bodily injury implied: felony-murder rule: commission of underlying felony: presumption of malice depraved heart murder: so extremely reckless or indifferent to value of human life generally that malice is implied Depraved Heart Murder (reckless indifference) universal malice, not directed at any one person Depraved Heart Murder Elements: know risk but disregard unjustifiable risk to human life no social utility King v. State Facts: followed out of nightclub, then shot at tires of vehicle Reckless → extreme indifference → life generally High degree of risk: death Awareness of risk: consciously disregard it Awareness of Risk: Actual Risk v. Probability (Subjective standard: awareness of risk) Ex #1: walking down suburban street, shoots out windows of home, hits occupant: Jury will find: person aware of risk Ex #2: walking in forest, cabin appears abandoned, shoot out windows, there was occupant who was killed: Harder case Conduct = gross deviation from the standard of care a reasonable person would exercise Consider the possible social utility: if justifiable for taking the high degree of risk 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. State v. Hokenson Part of continuous transaction: criminally liable Facts: D calls in prescription, enters w/ bomb and knife, was under arrest, bomb went off in officer’s hands We are presuming recklessness for what period of time? Responsible for the forces set in motion by your recklessness → continuous transaction Until the forces are not in motion anymore: you will be strictly liable Felony-Murder Felony-Murder Elements: unintended killing underlying felony: no mens rea for murder but need it for underlying felony Inherently dangerous felony Presumption of Malice: b/c underlying felony is inherently dangerous Inherently Dangerous Felony Test: Must look at the felony in the abstract Must show: high probability of risk of death (more than 50%) Natural and probable consequence (Ex: Patterson below: is death natural and probable consequence of furnishing cocaine?) People v. Phillips: Inherently Dangerous Felony (abstract) Facts: chiropractor treating 8 year old for cancer Held: No felony-murder applied here b/c not an inherently dangerous felony Here: person could commit fraud (medical fraud) w/o ever causing a serious risk that someone would die People v. Patterson: Inherently Dangerous Felony Issue Facts: Defendant supplied cocaine, Jennie Licerio died Held: case remanded to determine if felony of furnishing cocaine = inherently dangerous Problem: Felony-Murder Rule divorces responsibility element from the culpability element (Presumes malice) If criminal liability rests on moral culpability: then isolate F-M rule as much as possible State v. Mayle When does felony end? Facts: attempted robbery at McDonald’s in Ohio Held: felony still occurring when the officer was shot F-M rule includes: things immediate and that immediately follow the commission/attempt of the felony Complete and continuous transaction until they reach a place of safety People v. Wilson Merger Principle Facts: killing of Mrs. Wilson in the bathroom Court concerned: losing distinctions between different types of murders: Assault w/ deadly weapon merging into homicide 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 People v. Hansen Merger Principle: Assaultive Conduct Facts: clearly reckless conduct (if he would have known the kids were inside he would not have shot) Shooting into occupied building: Assaultive conduct (felony) Held: doesn’t merge into homicide California stance on F-M rule: Merger Principle: If all you have in the box is “assault”: not enough for F-M Human Shield Cases: Clearly a case of murder as it is a reckless act with extreme indifference to human life. Premeditation/Deliberate Murder Elements: (measuring cold calculated judgment v. impulse) Willful → intentional Deliberate → thought Cool mind that is capable of reflection Premeditated → beforehand Actual reflection beforehand People v. Perez Planning/Motive/Manner Facts: victim stabbed 38 times, D went to same H.S. Typical premeditation categories: Planning Motive Manner Held: sufficient evidence to support jury’s finding of premeditated/deliberate murder Length of time to form: does not have to be long Just: cool reflection showing conscious decision to kill victim (rule out impulse) Provocation: Something considered provocation can negate the cool deliberation needed for premeditation 2nd degree murder: can include intentional killing 1st degree murder: must add cool mind and actual reflection State v. Schrader No appreciable time required to form intent to kill Facts: D to purchase war souvenirs, argument over authenticity of German sword Deliberate/premeditated: held to be knowing and intentional Midgett v. State Homicide must be premeditated/deliberate Facts: Father hit malnourished child in stomach and killed him Held: Father intended abuse but had no intent to kill Ex: if D thought for a long time planned to kill boy and then got drunk to get up courage Court likely to find: premeditation and deliberation State v. Forrest Moral Justification not Adequate to reduce charges Facts: D kills father, terminally ill in hospital D admitted intended this (put father out of misery) Elements: Armed, D’s statement, Multiple shots (cocked pistol), No provocation, Helpless victim Use Elements to determine: If cool mind and Deliberate act Statutory Homicide 1st Degree premeditated and deliberate Some jurisdictions: focus on the method/means, may include F-M 2nd Degree include all other murders: go back to Common Law: every C.L. murder not in 1st degree category falls in this catch-all category MPC Murder (CB 216) Purposely/knowingly: similar to Common Law Express Murder Felony Murder: similar to Common Law (presumption of malice) enumerated felonies (MPC 210.2(1)(b)) Recklessly: extreme indifference to value of human life: similar to C.L. depraved heart Voluntary Manslaughter Voluntary Manslaughter Policy Issues: Recognize human frailty: people sometimes act out of heat of passion Search for rule that mitigates culpability Common Law Intentional killing of another human being Heat of Passion: extreme emotional state sudden subjective test: did D lose control? Adequate Provocation legal adequacy: defined in rigid CL categories Defendant acts in response to a provocation that a reasonable person would lose self-control (objective inquiry)
State v. Guebara Mere Words (Provocation = purely objective standard) Facts: D shot common law wife who had served him w/ divorce papers and misdemeanor assault charges Held: no adequate provocation: Mere words not sufficient provocation State v. Stafford Adequate Provocation Facts: husband knocks glasses off her, she then kills husband Held: murder conviction stands: Minor assault not sufficient provocation People v. Chevalier Adequate Provocation? Facts: wives taunting about committing adultery Held: not adequate provocation Communication of adultery is not adequate here: History of marital discord so not a sudden shock when husband finds out State v. Dumlao (CB 190) Subjective/Objective Test Facts: very jealous husband, shot mother-in-law Announces 4 Part test: Subjective/Objective Test (incorporates CL elements) adequate provocation (objective) provocation in fact (subjective) cooling off- reasonable person (objective) Did D cool off? (subjective) Hawaii adopted different statutory definition of manslaughter from CL Statutes with Manslaughter: Incorporate C.L. or M.P.C. MPC Manslaughter (recognizes mitigation): 210.3(1)(b) Elements: Extreme Mental or Emotional Disturbance (subjective) Reasonable explanation/excuse (from perspective of person in actor’s situation) MPC also includes “recklessly”: allowing for mitigation Reason for MPC standard: CL manslaughter doctrine divorced the legal standard from “mens rea” Recognizes: Manslaughter deals w/ mitigation (Still murder but D is somewhat less culpable)
MPC: criminally negligent homicide MPC v. CL regarding Manslaughter CL test = easy to administer MPC Test: asks jury to determine: Extreme Mental/Emotional disturbance Reasonable Explanation (difficult) Ex: put yourself in Dumlao’s shoes (hypersensitive, jealous man: is this reasonable excuse) Heat of Passion may not need to be sudden under MPC as at CL See: Dumlao (wife talked to men for long time) and Forrest Involuntary Manslaughter/Negligent Homicide Common Law: Involuntary Manslaughter Elements: Criminal negligence inadvertent risk taking/failure to perceive unjustifiable risk Death is accidental State v. Hardie (HO 58): Failure to perceive risk a reasonable person would Facts: D joked w/ gun (thought didn’t work), shot neighbor Mrs. Suften Held: Criminal negligence: D fails to see risk that reas. person would have observed (pointing a deadly weapon at another person) State v. Bier (CB 202) Consequences reasonably foreseeable from an objective standpoint Facts: D cocked gun, challenged wife, both intoxicated Held: criminally responsible despite ambiguity (did she pull trigger?) Foreseeable: sufficient b/c foreseeable someone would be shot Act of Negligence: pulling gun out of closet, loading it and cocking it As long as D’s negligent act is direct cause of death (set events in motion) Victim was foreseeably endangered in a manner and to a degree that matched what happened Statutory: Involuntary MS/Negligent Homicide MPC: Negligent Homicide Negligent: if defendant fails to perceive substantial or unjustifiable risk Causation: causal link between act and harmful result Substantial Factor Test, Felony-Murder People v. Stamp F-M is strict liability doctrine, substantial factor Facts: chest pains before and after robbery Held: Robbers liable under F-M rule heart attack: even if unforeseen, still liable b/c F-M = strict liability (all that occurs during commission of felony) Causation here: shortening life (substantial factor) Ex: V hides, not lead out by gunpoint, V still knew robbery was going on, then V dies shortly after Unseen/unforeseen victim will not undercut finding that robbery was cause of death b/c still substantial factor Need: Both Cause in Fact and Proximate Cause State v. Sauter: Poor medical treatment does not break chain of causation D = stabbing victim, surgeon performed emergency surgery but failed to repair a blood vessel, V bled to death Held: medical malpractice was not an intervening cause Only if doctor’s malpractice is sole cause of V’s death does it break the chain of causation for criminal liability Ex: if D causes minor wound and surgeon commits major blunder But-For Cause But-for the knife attack, V would not have been in surgery and subject to surgeon’s malpractice Proximate Cause: sufficiently close link (sufficiently connected) The longer the time in between: the more tenuous the connection 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 However an act need not be the sole cause in order to be criminal Letner v. State (CB 593): Normal Response Does not break Chain of Causation Shooting from cliff, Walter jumps out of boat, boat capsizes so Alfred and Walter both drown Held: Normal response by victim does not break causation and liability of D Not an unanticipated result: a boat occupant would jump out of boat Campbell v. State: Agency Theory v. Proximate Cause for F-M Facts: cab driver was victim of robbery, Either policeman or cab driver shot/killed co-felon Held: felon #2 not liable for death of felon #1 Co-felon liable for crimes committed by other felon under F-M rule “Agency Theory”: liability for deaths caused when furthering felony commission Minority View is Proximate Cause: is act of committing robbery the Proximate Cause of felon #1 being shot? Ex: Victim shooting policeman But-For the felony: victim would not be acting in self-defense and have occasion for bad aim and shooting the police officer Attempt and Kindred Problems Inchoate Crimes: incomplete b/c have some unachieved goal These theories have a lot of overlap Attempt: punishing under substantive law (big area) Solicitation: invite someone else If person successfully completes attempt or solicitation: merges into completed crime Conspiracy: conspire w/ others Attempt In General Intent to commit Mental State: would have been enough to satisfy mens rea of substantive crime Intent to act w/ the purpose of causing the result element of the target offense Act toward commission some overt act in furtherance of plan of criminal conduct beyond preparation Definitions Act Towards Commision Moffet v. State Must be perpetration to be liable for attempt Facts: Moffett force Linda to write suicide note, victim escaped Act towards commission: beyond preparation Substantial Step Model Penal Code (substantial step) conduct culminates in crime strongly corroborative: actor’s purpose Section 5.01(2): Conduct which may be held to be a substantial step: lying wait enticing victim to go to the place contemplated for the crime’s commission reconnoitering the place contemplated for commission of the crime unlawful entry of structure/vehicle/enclosure where contemplated crime to be committed possession of materials to be employed in commission of the crime (designed for unlawful use or serve no lawful purpose under circumstances) possession/collection of materials at or near place contemplated for commission of the crime soliciting an innocent agent to engage in conduct constituting an element of the crime Young v. State: Substantial Step Facts: Young w/ gun and mask comes up to bank but it’s closed Attempt under Substantial Step Trying to open door = point of attempt here At least an attempt when gets out of car, clips on scanner, puts on mask (substantial step) Last Proximate Act: D has done everything to fix liability for the crime if the result actually occurs Ex: wife wants to poison and kill husband, puts poison in his whiskey, on way home husband hit and killed by bus D has done everything that is needed and everything intended for desired result to occur (Last Proximate Act) “Dangerous Proximity”: what is left to be done? Closeness in space and time to completing the crime… 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 reasonable probability the crime would have been complete but for timely interference People v. Rizzo: Dangerous Proximity/preparatory phase is not attempt Facts: Rizzo planned to rob Charles Rao of payroll, looked for him all over NYC Held: conduct was not an attempt 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) Impossibility Factual Impossibility intent: to commit crime inability to commit crime due to unknown fact Ex: would be pick-pocket reaching into empty pocket Not a defense: almost never successful People v. Rojas (CB 472): Factual Impossibility/Police intervention did not destroy criminality of attempt Facts: stole $4500 of electrical conduit Held: guilty of attempt to receive stolen goods Holding here depends on D not knowing the goods had been recovered Legal Impossibility intent: to commit crime D does everything intended to do What D intended to do and did is not a crime Everything goes as planned but not a crime: D mistaken about crime’s definition Constitutes a defense: Courts will likely acquit if true legal impossibility Booth v. State: Legal Impossibility stolen coat → legal v. factual impossibility Held: not guilty, Intended consequences was not a crime Factual v. Legal Impossibility: True Factual Impossibility Only thing precluding actor from what he intends to complete: failure of means b/c of mistaken assumption regarding a fact True Legal Impossibility Ex: Actor thinks it is illegal to shoot squirrels But it is not prohibited by law Harder Cases (can make these come out either way): Ex #1: D shoots at tree stump, thinks it was a person Ex #2: D shoots at V, but V was already dead Underlying issue: V dead/not dead Mistaken assumption about legal status of something (Hybrid Impossibility) objective is criminal: if underlying assumptions were correct the criminal would have committed the substantive crime Hybrid Impossibility: criminal objective but failure b/c of legal status MPC: Test: You’re guilty if you thought you were committing a crime You’re not guilty if the actions don’t amount to a crime no defense for factual impossibility: Section 5.01(1)(b) Ex: put time bomb in building, bomb would explode in 1,000 hours but timing device failed Would cause result if circumstances were as he believed them to be (Falls under (1)(b)) Ex: D shoots at V (Present Capacity Example ??) Include: V out of range Unloaded gun/or shooting blanks No way D could kill V in same way that Oviedo could never distribute heroin (b/c substance was not heroin) Physical Impossibility: (failure of means) is not a defense to attempt could be defense to the completed crime Intent: not very problematic Differentiate: preparation v. perpetration Can still have intent but it is physically impossible: Ex: old man is impotent, wants to commit rape guilty of attempt cannot be guilty of completed crime of rape State v. Mitchell: Intent and Present Capacity D fired gun where he thought Warren was lying but Warren not there took all steps to kill, even shot into room, but man wasn’t there Held: guilty of attempt Intent and present capacity Here: clear specific intent to shoot Warren Abandonment/Renunciation of Criminal Purpose MPC: recognizes renunciation as an affirmative defense but it must be voluntary and complete (limited circumstances) Abandonment must be voluntary complete Voluntary Not voluntary if motivated by something unknown at the beginning of the commission (Frustration of criminal purpose) Ex: D (Stewart) demands all the $ in gas station, attendant says $ kept in lock box behind pumps and attendant does not have key not voluntary: Stewart was frustrated in his criminal purpose Complete Not complete if decide to do it at a better time (postponement) Ex: can’t be approaching gas station, ready to rob, see police officer and decide to come back later Not all CL jurisdictions recognize abandonment: once someone has gone so far as to meet elements of attempt, don’t let them off Solicitation Solicitation Defined (at Common Law): Commands, encourages, entices Another to commit a crime Solicitation comes farther back in time than attempt Conspiracy: between solicitation and attempt Solicitation is often (but not always) an independent offense State v. Blechman (CB 486) Target Offense need not be carried into effect If solicitee commits crime: then solicitor liable for substantive crime (could be: aider/abettor) Ex: abandoned house is eyesore, “I wish someone would burn this house down” Act not specific enough 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 Ex: leave message, $500 to burn house down, message left on answering machine but person has moved and never gets message Solicitation still punishable even if not communicated Conspiracy (Chapter 6) Elements: Dual Intent: Intent to agree Intent to commit specific crime Proof of intent/knowledge not always required for conspiracy Ex: Food & Drug Act, can violate by transporting adulterated food w/o knowledge that the food is adulterated Solicitation can merge into Conspiracy: when solicitor attains agreement of solicitee Wharton’s Rule Defenses: crimes that require concerted action of 2 people Agreeing to such action does not allow for conspiracy charge Ex: dueling, adultery: can’t have conspiracy between 2 people in dueling or in adultery Ex: Harris v. Miles in duel, Bennet as Harris’ second and Frech as Miles’ second 3rd party exception to Wharton’s Rule: Wharton’s Rule would not apply and could have conspiracy between the 4 parties contemplating this duel Applying Wharton’s Rule: look at elements of crime in the abstract People v. Swain (CB 519): Dual Intent Drive-by shooting, van w/ people shooting semi-auto weapons Mens Rea requirements to prove conspiracy: here Court talks about dual intent: Intent to agree (conspiracy = specific intent crime) Collateral intent: intent to kill Held: jury may have convicted on unpermissible theory: Implied malice not permissible in conspiracy context b/c need a specific intent to kill (Ex: F-M = accidental killing) Possible: this was not an intended killing Jury must examine evidence: one person bragged about shooting the kid group started out w/ revenge: retribution for the stolen automobile People v. Lauria (HO #2, 1) Knowledge to prove Intent Facts: Lauria provides legitimate service, telephone answering service Evidence that Lauria has positive knowledge that prostitutes using the service Conspiracy: Knowledge Intent to promote Knowledge Illicit purpose: State requires: intent to promote the illicit purpose Held: Lauria cannot be charged w/ prostitution or conspiracy to commit prostitution No evidence that Lauria agreed to assist subscribers in their prostitution business How state can prove intent from knowledge: Inference of intent beyond mere knowledge Stake in venture: tends to show if person had knowledge then intending to promote Here: Lauria has separate records, charges $1/call for prostitute customers and $.50/call for others inference: intends to assist prostitutes in promoting business No legal purpose Here: telephone answering service could be legitimate Falcone: sugar, yeast, cans supplied to distillers Not enough to infer intent to promote unlawful distilling business Direct Sales: morphine, country doctor, 300 times the need for the community, stronger than normal tablets Disproportionate Volume or Percentage: Here: if Lauria only provides services to prostitutes Falcone: if all sugar was being sold to illegal distillers Direct Sales: volume discounts, 50% of volume to country doctor Aggravated Crime Here: if Lauria knew a high percentage of his customers were kidnappers and using his services to collect ransom 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 Pinkerton v. U.S. (CB 527) Imputing liability to Conspirators who didn’t participate in acts Facts: violation of IRS laws (violating substantive laws), Walter engaged in the conduct, no evidence that Daniel participated yet both convicted of substantive offense Held: each of conspirators act as agent for the other (hold both brothers liable for substantive crime) Commission of overt act by one = commission of overt act by all Imputing liability to a person who didn’t participate in acts Ex: agree to only use blackjack to rob, don’t want to hurt victim, victim resists, Walter hits victim and victim dies Daniel still liable: furtherance of conspiracy and reasonably foreseeable Ex: conspiracy to shoot animals out of season, Walter holds up a store Here: not foreseeable, out of realm of what parties intended Court will likely find: not in furtherance of conspiracy
*** Note: There will be overlap w/ these 2 theories of vicarious liability when the crime committed in furtherance is homicide People v. Sconce (HO #2, 7): Withdrawal from Conspiracy Facts: plan to blow up Estephan’s car Sconce → Garcia ($10,000) Garcia → Dutton ($5,000) Sconce then calls it off Held: Withdrawal = defense to conspiracy if before overt act Overt act has to be in furtherance of the conspiracy overt act of one fixes liability for all in conspiracy any crimes then in furtherance of the conspiracy → liability attributable to all in the conspiracy To be effective the withdrawal must be communicated to all parties to conspiracy 2 types of withdrawal defenses talked about by Court: Defense to Crime of Conspiring to commit murder Defense to terminate Pinkerton liability Pinkerton withdrawal can occur after the conspiracy is complete Will be a defense for other crimes (defense going forward)
Overt Act Jurisdiction: conspiracy not complete until: Agreement Overt act Non-Overt Act Jurisdiction Conspiracy complete with just agreement → withdrawal will not be a defense to conspiracy MPC comparison to Withdrawal to Conspiracy Concepts Renunciation (MPC) (CB 539): similar to withdrawal theory D renounce Voluntary and complete renunciation Thwart success What constitutes thwart success? 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 MPC requires overt act for conspiracy unless 1st degree felony talking about murdering someone: that is sufficient manifestation Successful renunciation under MPC has same effect as Withdrawal at CL (before overt act) MPC does not incorporate Pinkerton liability Liability for substantive crime for being part of conspiracy is dealt with as separate issue (aiding/abetting) Abandonment/Termination Conspiracy ends: Conspirators have achieved the objectives they intended to achieve in furtherance of the conspiracy If all members of conspiracy decide to abandon their plan for whatever reason U.S. v. Feola (HO #2, 10) Conspiracy can’t require more than substantive crime Facts: Assaulting federal official Conspiracy Held: Conspiracy statute does not require knowledge that was federal official Feola: D had intent to assault regardless of whether it was a federal official Element of crime proving that V = federal official held to be jurisdictional element (Thus not element of the crime) Marquiz v. People (CB 530): Rule of Consistency Facts: 3 men took Debra Terhorst to Lookout Mtn. and stabbed her “Rule of Consistency”: When all Defendants are tried together: As long as there is one conspirator who has not been brought to trial on the merits: can find only D guilty of conspiracy MPC: allows conspiracy as one person’s agreement (unilateral theory) Under MPC: appears no need for “Rule of Consistency” People v. Foster (HO #2, 17) Unilateral Conspiracy Facts: Foster talked w/ Ragsdale, Ragsdale feigned agreement (never overtly agreed to conspiracy) Held: the amendment did not adopt the unilateral conspiracy theory Solicitation (a person): Unilateral conspiracy appears to collapse into solicitation Solicitation: As solicitor I am enticing another to commit the crime for me Inviting someone to join crime may not equal solicitation Motivation for unilateral theory under MPC illustrated here: Foster had criminal intent/purpose Foster no less guilty b/c Ragsdale feigned agreement Directory: sba -> firstyearoutlines sba -> Employment Discrimination Outline Is it a lawsuit against a church? Free Exercise Clause sba -> Administrative Law Outline Professor Andrew Popper Spring, 2004 Assignments sba -> Name Per. Date hspa prep 2010-2011 sba -> Hspa language Arts Tutorial Cluster 2: Writing to Persuade sba -> Sources of Immigration Power sba -> Date: Period: 1 2 3 4 5 6 sba -> Sbar communication Faculty Disclosure Statement firstyearoutlines -> Mainly case law- what courts say the law is- general principles of law for contracts sba -> Defined: the reasonable belief that a crime has been committed and that the person is linked to the crime with the same degree of certainty Download 289 Kb. Share with your friends:
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