Criminal Law Outline

Culpability

Actus Reus—“Proof of an Act”

Every crime requires proof of an act. Most crimes requires proof of intent, still others require attendant circumstances (ACs). There are four potential elements that are a part of every crime:

Act—a physical act (or unlawful omission) by the ∆;
Intent (Mens Rea)—the state of mind or intent of the ∆ at the time of his act;
Causation—a harmful result caused (both factually & proximately) by the ∆’s act.
Attendant Circumstances—facts specific to a certain crime w/o which the same act & intent would not be criminal.

The Model Penal Code is followed by 34 states & is read into EVERY criminal statute. There is a fundamental principle that criminal liability always requires an “actus reus” that is, the commission of some voluntary act that is prohibited by law.

Model Penal Code § 2.01

A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.
The following are not voluntary acts w/in the meaning of this Section:
1. a reflex or convulsion;
2. a bodily movement during unconsciousness or sleep;
3. conduct during hypnosis or resulting from hypnotic suggestion;
4. a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual.
Liability for the commission of an offense may not be based on an omission unaccompanied by action unless:
1. the omission is expressly made sufficient by the law defining the offense; or
2. a duty to perform the omitted act is otherwise imposed by law.
Possession is an act, w/in the meaning of this Section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.

1. Physical Act

For there to be criminal liability, the ∆ must have either performed a voluntary physical act or failed to act under circumstances imposing a legal duty to act. For this purpose, an act is defined as a bodily movement. A thought is NOT an act. Therefore, bad thoughts alone cannot constitute a crime. The MPC requires that at least one act be voluntary. Note, however, that speech, unlike thought, is an act that can cause liability (e.g., perjury, solicitation).

The Act Must be Voluntary

The ∆’s act must be voluntary in the sense that it must be a conscious exercise of the will. Rationale: an involuntary act will not be deterred by punishment. The following acts are NOT considered “voluntary” & therefore cannot be the basis for criminal liability:

Conduct that is NOT the product of the actor’s determination. (Martin v. State—“Drunk of Highway”—RULE: To satisfy the actus reus element of a crime, the ∆ must act voluntarily.)
Reflexive or convulsive acts. (People v. Newton—“Officer Down”—RULE: Under MPC § 2.01, a person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act.”
Acts performed while the ∆ was either unconscious or asleep unless the ∆ knew that she might fall asleep or become unconscious & engaged in dangerous behavior.
Many types of conduct that are considered “involuntary” for purposes of some criminal law rules are NOT considered “involuntary” for purposes of others.
- Ex. a motorist who drives too fast, goes through a stop sign & unintentionally kills a pedestrian. In everyday speech & in the criminal law itself, this offense is usually described as “involuntary manslaughter.”
Some restrictions:
- An act is not involuntary b/c the doer does not remember doing it
- An act is not involuntary simply b/c the doer could not control his impulse to do it
- An act is not involuntary simply b/c it is unintentional or its consequences are unforeseen.
- An act is not involuntary if it is habitual & done w/o thought.
How do we figure out which act should be voluntary??
- Look to the intent of the legislature. This must be done for statutes that have more than one act element in it.
- The voluntary act is NOT the intent to commit the crime.

2. Omission as an “Act”

Although most crimes are committed by affirmative action rather than by nonaction, a ∆’s failure to act will result in criminal liability provided three requirements are satisfied.

Legal Duty to Act—the ∆ must have a legal duty to act under the circumstances. A legal duty to act can arise from the following sources:
- A statute (e.g., reporting an accident).
  - Pope v. State—“Bad Mother & Church Woman”—RULE: A person cannot be punished as a felon for failing to fulfill a moral obligation where no legal obligation exists.
  - The Court reasoned that b/c the MD statute required a person charged w/child abuse have parental rights (even if temporary) & b/c the infant’s mother was present the entire time, the ∏ was not guilty.
- A contract obligating the ∆ to act, such as one entered into by a lifeguard or a nurse.
  - Jones v. US—“Bad Babysitter”—RULE: Omission of an act is only punishable where the duty neglected is a legal duty & not merely a moral one. Where a statute does not impose a legal duty to perform a particular action, criminal liability for the omission of such action only arises where legal duty is imposed by some other law.
- The relationship between the ∆ & the victim, which may be sufficiently close to create a duty. (e.g., parent-child, spousal)
- The voluntary assumption of care by the ∆ of the victim. Although in general there is no common law duty to help someone in distress, once aid is rendered, the Good Samaritan may be held criminally liable for NOT satisfying a reasonable standard of care.
- The creation of peril by the ∆.

Knowledge of Facts Giving Rise to Duty
- As a general rule, the duty to act arises when the ∆ is aware of the facts creating the duty to act (e.g., the parent must know that his child is drowning before his failure to rescue the child will make him liable).
- All American jurisdictions require members of certain designated professions to report suspected cases of child abuse; usually the failure to do so is a misdemeanor. These professions include: doctors, nurses, teachers, clergy, & (in some places) attorneys.
- However, in some situations the law will impose a duty to learn the facts (e.g., a lifeguard asleep at his post would still have a legal duty to aid a drowning swimmer).
Reasonably Possible/Physically Capable to Perform
- It must be reasonably possible for the ∆ to perform the duty or to obtain the help of others in performing it. (ex. no duty for a parent who can’t swim).

3. Possession as an “Act”

Criminal statutes that penalize the possession of contraband generally require only that the ∆ have control of the item for a long enough period to have an opportunity to terminate the possession. Possession need not be exclusive to one person, & possession also may be “constructive,” meaning that actual physical control need not be proved when the contraband is located in an area w/in the ∆’s “dominion & control.”

State of Mind Requirement

Absent a state of mind requirement in the statute, the ∆ MUST be aware of his possession of the contraband, but he need not be aware of its illegality or true nature.

However, may statutes & the MPC add a “knowingly” or “intentionally” state of mind element to possession crimes. Under such statutes, the ∆ ordinarily MUST know the identity or nature of the item possessed.
On the other hand, a ∆ may not consciously avoid learning the true nature of the item possessed; knowledge or intent may be inferred from a combination of suspicion & indifference to the truth. (US v. Jewell).

Mental State—“Mens Rea” aka “The Guilty Mind”

Purpose of Mens Rea Requirement

The reason that mens rea is normally required is to distinguish between inadvertent or accidental acts & acts performed by one w/a “guilty mind.” The latter type of act is more blameworthy &, arguably, can be deterred. However, in some cases (strict liability crimes), mens rea is NOT required.

At common law, an act is intentional if the accused had foresight of consequences or the intent to do the particular kind of harm is proved (foreseeability).
- Regina v. Cunningham—“The Gas Meter Thief”—RULE: Malice should not be taken in the old sense to mean “wickedness”, but requires actual intention to do particular kind of harm or recklessness as to whether such harm should occur or not.
Mens rea applies to EVERY ELEMENT of the statute.

Specific Intent

If the definition of a crime requires not only the doing of an act, but the doing of it w/a specific intent or objective, the crime is a “specific intent” crime.

Significance

It is necessary to identify specific intent for two reasons:

Need for Proof—the existence of a specific intent CANNOT be conclusively imputed from the mere doing of the act, & the prosecution MUST produce evidence tending to prove the existence of the specific intent. That said, the manner in which an act was done may provide circumstantial evidence of intent.
- Regina v. Faulkner—“Lit Match While Stealing Rum on Ship”—RULE: Having the intent to commit a certain crime does not serve to establish the intent to commit a second crime that happens by accident. One cannot be convicted for an act that is the unintended & unforeseeable consequence of a lesser offense.
Applicability of Certain Defenses—some defenses, such as voluntary intoxication & unreasonable mistake of fact, apply ONLY to specific intent crimes.

Enumeration of Specific Intent Crimes

The major specific intent crimes & the intent they require are as follows:

Solicitation: Intent to have the person solicited commit the crime;
Attempt: Intent to complete the crime;
Conspiracy: Intent to have the crime completed;
First degree premeditated murder (where so defined by statute): Premeditated intent to kill;
Assault: Intent to commit a battery;
Larceny & robbery: Intent to permanently deprive another of his interest in the property taken; &
Burglary: Intent at the time of entry to commit a felony in the dwelling of another.

Malice—Common Law Murder & Arson

Although the intents required for the “malice” crimes”—common law murder & arson—sound similar to specific intent (e.g., the “intent to kill” for murder), these crimes are NOT open to the specific intent defenses. The common law created this special mental state category especially to deny to murder & arson the specific intent defenses. To establish malice in these cases, the prosecution need only show that the ∆ recklessly disregarded an obvious or high risk that the particular harmful result would occur.

General Intent—Awareness of Factors Constituting Crime

Generally, all crimes require “general intent,” which is an awareness of all factors constituting the crime; i.e., the ∆ MUST be aware that she is acting in the proscribed way & that any attendant circumstances required by the crime are present. Note, that the ∆ need not be certain that these attendant circumstances exist; it is sufficient that she is aware of a high likelihood that they exist.

Inference of Intent from Act

A jury can infer the required general intent merely from the doing of the act. It is not necessary that evidence specifically providing the general intent be offered by the prosecution.

Transferred Intent

If a ∆ intended a harmful result to a particular person or object &, in trying to carry out that intent, caused a similar harmful result to another person or object, her intent will be transferred from the intended person or object to the one actually harmed.

Any defenses or mitigating circumstances that the ∆ could have asserted against the intended victim (e.g., self-defense, provocation) will also be transferred in most cases.
The doctrine of transferred intent most commonly applies to homicide, batter, & arson. IT DOES NOT APPLY TO ATTEMPT!!!

Motive Distinguished

The motive for a crime is distinct from the intent to commit it. A motive is the reason or explanation underlying the offense. It is generally held that motive is immaterial to substantive criminal law.

A good motive will NOT excuse a criminal act.
On the other hand, a lawful act done w/bad motive will NOT be punished.

Strict Liability Offenses

A strict liability offense is one that does NOT require awareness of all of the factors constituting the crime. Generally, the requirement of a state of mind is NOT abandoned w/respect to all elements of the offense, but only w/regard to one or some of the elements. The major significance of a SL offense is that certain defenses, such as mistake of fact, are NOT available.

Identification of SL Offenses

SL offenses, aka public welfare offenses, are generally “regulatory” offenses, i.e., offenses that are part of a regulatory scheme. They generally involve a relatively low penalty & are NOT regarded by the community as involving significant moral impropriety.

US v. Balint—“Prohibition Opium Pushers”—RULE: In cases where the law imposes strict liability, to require the State to prove knowledge would, in some respect, obstruct the very purpose for which the statute was constructed.
- The emphasis of these regulatory statutes is upon achievement of social betterment rather than punishment of the crimes.
US v. Dotterweich—“Misbranded Drugs”—RULE: These regulatory measures require no mens rea at all w/respect to whether those charged knew or should have known the shipment was mislabeled.
- The emphasis of this regulatory statute is to protect the consumers who could be affected by the ∆’s actions.

Note that the mere fact that a statute is silent on the question of mental state does NOT necessarily mean that the offense is a SL offense.

Morissette v. US—“The Scrap Collector”—RULE: Strict liability does not apply where the offense is not a public welfare offense.

Common law crimes carry a stigma, regulatory offenses are less serious and, therefore, don’t require a culpable state of mind unless specifically expressed in the statute.
This was a serious offense, so we need a culpable mental state.

If no mental state is expressly required by the statute, the courts may still interpret the statute as requiring some mens rea, especially if the statute appears to be a codification of a traditional common law offense or if the statute imposes a severe penalty.

Staples v. US—“An Automatic Shotgun?”

Facts: The ∆ is convicted under the National Firearms Act, which criminalizes the possession of a weapon that is capable of automatically firing. The ∆ argues that he did not know that the gun would fire automatically.
Issue: Did the TC err in dismissing the intent requirement based on congressional silence in the statute w/regard to the element of intent?
RULE: Absent a clear Congressional statement that mens rea is not required, the public welfare/strict liability rationale should not be applied to interpret any statute that fails to mention mental state as an element of the offense.

The Court thought it irrational that Congress would intend to subject a “law-abiding” citizen to a possible 10-year term of imprisonment if what they genuinely & reasonably believed was a conventional semiautomatic turns out to have worn down into an automatic.
Also note the long tradition of widespread lawful gun ownership by private persons in this country. (2^nd Amendment?!)

Constitutionality

The majority view is that SL offenses are constitutional. But, like all laws, SL statutes must comply w/due process.

State v. Guminga—“We Serve Minors”
- Facts: The ∆’s employee was caught serving liquor to a minor in an undercover sting. Under a MN statute, criminal liability is imposed on an employer whose employee serves alcohol to minors. The ∆ moved to dismiss the complaint on the basis that the MN statute violated the DP clauses of the 5^th & 14^thAmendments.
- Issue: Does the vicarious liability statute, which imposes automatic vicarious liability on employers for their employees’ actions, violate the due process clauses of the 5^th & 14^th Amendments?
- Reasoning: The court balanced the public interest of deterring the violation of liquor laws in imposing vicarious liability w/the private interests of the individual upon which it is being imposed. The court found that the private interests outweighed the public ones & suggested instead that deterrence can be accomplished by imposing fines & suspending liquor licenses of establishments where liquor laws are violated.
- RULE: An individual cannot be held liable for a crime punishable by imprisonment where that individual did not commit, have knowledge or give consent to the commission of that crime.
  - While courts generally uphold convictions of employers for the illegal conduct of their employees even in the absence of evidence of fault.
  - There is less agreement on conviction for offenses that carry a sanction of imprisonment as opposed to fines. (LIBERTY considerations!!)

Summing Up SL

When looking at statutes ask yourself these 3 questions:

What is the harm that statute is seeking to protect?
Is it attempting to protect a class of people who can’t protect themselves?
Is the punishment minimal?

Model Penal Code Analysis of Fault

The MPC advocates the elimination of the ambiguous common law distinction between general & specific intent. Instead, the MPC proposes four categories into which the mental component of a criminal offense (i.e., the element of fault) can be characterized.

Purposely, Knowingly, or Recklessly

When a statute requires that the ∆ act purposely (“intentionally”), knowingly, or recklessly, a subjective standard is being used, i.e., the question is what was actually going on in the ∆’s mind.

Purposely

MPC § 2.02(2)(a)—A person acts purposely w/respect to a material element of an offense when:

If the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; &
If the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.

Knowingly

MPC § 2.02(2)(b)—A person acts knowingly w/respect to a material element of an offense when:

If the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; &
If the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.

US v. Jewell—“Feelin’ It”—RULE: Willful blindness is equivalent to knowledge.
- To act “knowingly” is not necessarily to act only w/positive knowledge, but also act w/an awareness of the high probability of the existence of the fact in question.
- Willful blindness are commonly used to help prosecution meet statutory requirements of “knowledge” in drug, theft, securities fraud, etc.

Recklessly—a person acts recklessly when he consciously disregards a substantial or unjustifiable risk that circumstances exist or that a prohibited result will follow, & this disregard constitutes a gross deviation from the standard of care that a reasonable person would exercise in the situation. MPC 2.02(2)(c)

Negligence

A person acts negligently when he fails to be aware of a substantial & unjustifiable risk that circumstances exist or a result will follow, & such failure constitutes a substantial deviation from the standard of care that a reasonable person would exercise under the circumstances. MPC 2.02(2)(d)

To determine whether a person acted negligently, an objective standard is used. However, it is NOT merely the reasonable person standard that is used in torts; the ∆ must have taken a very unreasonable risk in light of the usefulness of his conduct, his knowledge of the facts, & the nature & extent of the harm that may be caused.
In tort law, the RP had to be aware of the ordinary risk. In criminal law, the RP has to be aware of the gross deviation. The difference is a higher degree of gross risk.
Violation of a Statute or Ordinance as Evidence of Negligence

Violation of a state statute, municipal ordinance, or administrative regulation may—as in tort law—be evidence of liability.

Analysis of Statutes Using Fault Standards

State of Mind applies to All Material Elements of Offense

Often a statute will establish a culpable state of mind w/o indicating whether it is required for all the material elements of the offense. In that case, the specified state of mind applies to ALL material elements of the offense unless a contrary purpose appears in the statute. MPC 2.02(4)

General State of Mind Requirement—Recklessness

If the statute defining the offense (other than a SL offense) does not include a state of mind requirement, the ∆ MUST have acted w/at least recklessness w/regard to each material element of the offense. MPC 2.02(3)

Higher Degree of Fault Suffices—under the MPC hierarchy of fault levels, a showing of a higher state of mind automatically satisfies a lower mental state requirement of a statute.
Other Levels of Fault Must be Specified—B/c a standard of recklessness is assumed where the state of mind is NOT specified, if a lower standard of negligence will satisfy liability, or if a higher standard of knowledge or purpose is required, those standards MUST be indicated in the language of the statute.

Defenses

Mens Rea Defenses

MPC § 2.04. Ignorance or Mistake

Ignorance or mistake as to a matter of fact or law is a defense if:
1. the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense; or
2. the law provides that the state of mind established by such ignorance or mistake constitutes a defense.
Although ignorance or mistake would otherwise afford a defense to the offense charged, the defense is NO available if the ∆ would be guilty of another offense had the situation been as he supposed. In such case, however, the ignorance or mistake of the ∆ shall reduce the grade & degree of the offense of which he may be convicted to those of the offense of which he would be guilty had the situation been as he supposed.
A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when:
1. the statute or other enactment defining the offense is not known to the actor & has not been published or otherwise reasonably made available prior to the conduct alleged; or
2. he acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in (i) a statute or other enactment; (ii) a judicial decision, opinion or judgment; (iii) an administrative order or grant of permission; or (iv) an official interpretation of the public officer or body charged by law w/responsibility for the interpretation, administration or enforcement of the law defining the offense.
The ∆ must prove a defense arising under § (3) of this Section by a preponderance of the evidence.

Mistake or Ignorance of Fact
- Mistake Must Negate State of Mind

Ignorance or mistake as to a matter of fact will affect criminal guilt ONLY if it shows that the ∆ did NOT have the state of mind required for the crime.

Requirement that Mistake be Reasonable

Malice & General Intent Crimes—Reasonableness Required

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

Specific Intent Crimes—Reasonableness Not Required

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

People v. Rypinski—“Drunk Gun Accident”
- Facts: The ∆, after a night of drinking, got into an argument, produced his gun & accidentally discharged it shooting someone in their knee. Evidence shows that he threatened to “blow (someone’s) brains out” but that, immediately after, he apologized & said it was an accident. The ∆ claims that he forgot how many shells he left in the chamber & thought the gun was empty.
- Issue: Does the defense of a mistake of fact apply to reckless conduct?
- Reasoning: Mistake of fact is defense to charge of reckless assault if the mistake is such as to negate culpable mental state required for commission of offense.

Strict Liability Crimes—Mistake No Defense

Since SL crimes require no state of mind, mistake or ignorance of fact is NO defense to them.

Regina v. Prince—“Robbing the Cradle”

Facts: The ∆ was convicted of taking an unmarried girl under 16 years of age out of the possession & against the will of her father in violation of English law. The ∆ believed that she was 18 b/c that’s what she told him (even though she was only 14 at the time).
Issue: Is the court required to read a mens rea requirement into a statute that is silent w/regard to the mental state required to make the act a crime?
Reasoning: Mistake of fact does not stand as a defense to a crime where the statute making the act a crime contains no requirement of knowledge of that fact to begin with. In this case the forbidden act is wrong in itself & the legislature has enacted that if anyone does this act, he does so at his own risk.
RULE: Where a statute is silent as to the mens rea required to make the act a crime, the court is not bound to read a requirement of mens rea into the statute.
- This is an example of a traditional common law crime w/a SL element.
- The legislature is protecting a class of people.
- SL elements & SL crimes do not need to have intent proven.

Mistake or Ignorance of Law
- General Rule—No Defense

It is NOT a defense to a crime that the ∆ was unaware that her acts were prohibited by the criminal law or that she mistakenly believed that her acts were not prohibited. This is true even if her ignorance or mistake was reasonable.

People v. Marrero—“Packin’ Heat in the Club”—RULE: Mistake of law regarding a statutory definition is not a valid defense unless the mistaken belief is based on an official statement of law contained in a statute or issued by a public servant.
- Important to note that in the Marrero case, the statute involved imposed strict liability. So it punished regardless of intent.

Mistake or Ignorance of Law May Negate Intent

If the mental state for a crime requires a certain belief concerning a collateral aspect of the law, ignorance or mistake as to that aspect of the law will negate the requisite state of mind. This situation involves ignorance of some aspect of the elements of a crime rather than the existence of the state making the act criminal.

Cheek v. US—“The Tax Evader”
- Facts: The ∆ was convicted of willfully failing to file a federal income tax return for a number of years in violation of 26 U.S.C. § 7201 & § 7203(1). His defense was that based on information he received from a group opposing the institution of taxation, he sincerely believed that under the tax laws he owed no taxes & that these laws were unconstitutional.
- Issue: Can an unreasonable, GF mistake of law negate the statutory willfulness requirement?
- Reasoning: A ∆ cannot be convicted of willfully violating the law if he was not aware of the law. If a jury is to consider whether or not the ∆ was aware of the law, it must be able to credit or discount a GF misunderstanding of the law, regardless of reasonableness. However, the ∆’s claim that the provisions were unconstitutional reveals a knowledge of those provisions that can only come from studying them. So he must have been aware of the taxes.
- RULE: A GF, although unreasonable, mistake of law is a defense to criminal liability if it negates the requisite state of mind.
  - The difference between this decision & the Marrero is that the latter was a SL crime, so it had no intent. Here we needed a guilty mens rea!
People v. Weiss—“Kidnapping the Lindbergh murderer”
- Facts: The ∆s kidnapped the person whom they thought murdered the Lindbergh child. The trial court precluded testimony that the ∆s acted w/the honest belief that seizing & confining the victim was done w/”authority of law.”
- Reasoning: It was an error to exclude such testimony since a GF belief in the legality of the conduct would negate an express & necessary element of the crime of kidnapping, i.e., intent, w/o authority of law, to confine or imprison another.

Exceptions

Reasonable Reliance on Statute or Judicial Decision

The ∆ has a defense if she acted in reasonable reliance on a statute or judicial decision, even though the statute is later declared unconstitutional or the decision is overruled. The defense is strongest when the decision relied on was rendered by the highest court in the jurisdiction.

US v. Albertini—“Naval Protester”

Facts: The ∆ was convicted of trespass for engaging in a protest demonstration on a naval base. On appeal, the 9^th Circuit set asie the conviction on the ground that his conduct was protected by the 1^st Amendment. The gov’t then filed a petition for certiorari. At that point, but before the SC decided whether to review the case, the ∆ engaged in a second protest demonstration. When the SC reversed the 9^th Circuit decision, the gov’t also attempted to prosecute the ∆ for his second demonstration.
Held/RULE: The ∆ could not be prosecuted for the 2^nd demonstration. The Court of Appeals held that the ∆ had a due process right to rely on the previous 9^th Circuit decision.

Reasonable Reliance on Official Interpretation or Advice

At common law, it was no defense that the ∆ relied on an erroneous official statement of the law contained in an administrative order or grant, or in an official interpretation by the public officer or body responsible for the interpretation, administration, or enforcement of the law. The emerging rule, advocated by the MPC provides a defense when the statement is obtained from one “charged by law w/responsibility for the interpretation, administration, or enforcement of the law.”

Intoxication

Intoxication may be caused by any substance. Alcohol, drugs, & medicine are the most frequent. Evidence of intoxication may be raised whenever the intoxication negates the existence of an element of a crime. The law generally distinguishes between voluntary & involuntary intoxication.

Voluntary Intoxication
- Defense to Specific Intent Crimes

Voluntary intoxication evidence may be offered, when the ∆ is charged w/a crime that requires purpose (intent) or knowledge, to establish that the intoxication prevented the ∆ from formulating the requisite intent. Thus, it may be a good defense to specific intent crimes, but usually will not be a sufficient defense to general intent crimes. The defense is not available if the ∆ purposely becomes intoxicated in order to establish the defense.

People v. Hood—“∆ Shot Police Officer in the Leg”

Reasoning: The CA court held that the offense of assault cannot be negated by a demonstration of voluntary intoxication. There was uncertainty as to whether assault is a crime of intention or also one of recklessness.

Involuntary Intoxication

Justification Defenses

Under certain circumstances, the commission of a proscribed act is viewed by society as justified & hence not appropriate for criminal punishment. Generally, the ∆ must raise the issue of justifiable use of force by introducing some evidence tending to show justification as an AD.

Self-Defense

Self-defense requires: (i) an actual or imminent threat; (ii) of unlawful & immediate force; (iii) the ∆ must believe that his response was necessary & this belief must be reasonable to a RP in light of the surrounding circumstances. Note that the MPC relaxes the imminence requirement, providing that it is sufficient if the actor reasonably believed that the use of defensive force was “immediately necessary.”

Non-deadly Force

As a general rule, an individual who is w/o fault may use such force as reasonably appears necessary to protect herself from the imminent use of unlawful force upon herself. There is no duty to retreat before using non-deadly force, even if retreat would result in no further harm to either party.

Deadly Force

A person may use deadly force in self-defense if (i) she is w/o fault, (ii) she is confronted w/unlawful force, & (iii) she is threatened w/imminent death or great bodily harm.

US v. Peterson—RULE: The right to self-defense arises only when the necessity begins, & equally ends w/the necessity; & never must the necessity be greater than when the force employed defensively is deadly. The necessity must bear all semblance of reality, & appear to admit of no other alternative, before taking life will be justifiable as excusable.
People v. Goetz—“Subway Shooter that Jeremy’s Uncle Defended”—RULE: A person may use deadly force in self-defense if he reasonably believes that said force is necessary to protect himself.
- This reasonable belief cannot be based upon his own thinking under the circumstances, but rather, what the circumstances dictate to a RP (the objective standard).
State v. Kelly—“Abused Wife Kills w/Scissors”—RULE: Expert testimony on battered-woman’s syndrome is relevant to the issue of a ∆’s state of mind at the time of the murder where there is evidence of a past history of abuse.
- People v. Humphrey—RULE: The jury must consider the ∆’s situation & knowledge, which makes the evidence relevant, but the ultimate question is whether a RP, not a reasonable battered woman, would believe in the need to kill to prevent imminent harm. Moreover it is for the jury not the expert to determine whether the ∆’s belief & ultimately her actions were objectively reasonable. (Distinguished from State v. Edwards which allowed the jury to consider how an otherwise RP who is suffering from BWS would have perceived & reacted in view of the prolonged history of physical abuse).
State v. Norman—“Wife Kills Sleeping Husband”
- Facts: The ∆ shot & killed her husband while he slept after he’d beaten her on the day in question. The husband also had a history of beating the ∆.
- Held/Reasoning: A killing by a woman suffering from BWS cannot be done in self-defense unless death or serious bodily harm is imminent. In the present case, the victim was asleep at the time, & the evidence tended to show that the ∆ had ample time & opportunity to utilize other methods to avoid the abuse of her husband.
- RULE: The right to kill in self-defense requires that the ∆ be faced w/imminent death or great bodily harm.

Retreat

The majority rule is that there is no duty to retreat. However, the MPC goes the other way in regard to the use of deadly force. It provides that “if the actor knows that he can avoid the necessity of using such force w/complete safety by retreating” he should do so.

State v. Abbott—“Driveway Fight Between Paver & Family”

Facts: The ∆ got into an argument w/his neighbors about repaving their driveway. At first, the fight was between the ∆ & the neighbor’s son, but then the parents joined in. All three neighbors ended up in the hospital.
Held/Reasoning: The Court reversed the ∆’s conviction b/c it was reasonable for the ∆ to believe that if he tried to flee, his attackers would come after him, & so retreat was not really an option. The “True Man Doctrine” is followed in many jurisdictions.
- Don’t forget the Castle Doctrine. No duty to retreat when you’re home.

Defense of Another—Widely accepted rule is that when you come to the aid of another in need of help you can assert the same deadly force that the person being attacked would have been allowed to use in the circumstance.

Necessity

Conduct otherwise criminal is justifiable if, as a result of pressure from natural forces, the ∆ reasonably believed that the conduct was necessary to avoid some harm to society that would exceed the harm caused by the conduct. The test is objective; a GF belief in the necessity of one’s conduct is insufficient. The defense of necessity is not available if the ∆is at fault in creating a situation which requires that she choose between two evils.

People v. Unger—“Prison Break to Escape the Rape”
- Facts: The ∆ escaped from prison after he had been threatened by fellow inmates.
- Issue: Did the ∆ introduce sufficient evidence to support the affirmative defense of necessity?
- Held/Reasoning: Yes. Necessity is an available defense in prison escape situations, provided all of the elements of the defense are proved.
- RULE: The defense of necessity is available to prison escape situations where the prisoner is choosing to break the law to avoid a greater evil.

Borough of Southwark v. Williams—“Trespassing Homeless Family”—RULE: The doctrine of necessity cannot be used as an excuse for homeless people to trespass.
- The Court sympathized, but noted that the ruling had to be made for PP considerations. It is for others to aid the homeless, not the courts.

Commonwealth v. Leno—“Needle Distribution”—RULE: The defense of necessity is limited to the following circumstances: (i) ∆ is faced w/a clear & imminent danger; (ii) the ∆ can reasonably expect that his action will be effective as the direct cause of abating the danger; (iii) there is not legal alternative; (iv) the Legislature has not acted to preclude the defense by a clear & deliberate choice regarding the values at issue.
- The ∆’s case failed b/c they were not faced w/imminent danger & they could have sued legally sound avenues of action to deal w/this problem.

US v. Schoon—“El Salvador Protest”—RULE: The defense of necessity is inapplicable to cases involving indirect civil disobedience.
- Indirect civil disobedience differs from civil disobedience in that it involves the violation or interference w/a law or gov’t policy that is not, itself, the object of protest.
- When protesting the actions of Congress, lawful political activity to persuade congressional change is always a legal alternative (so go to Capital Hill!!!)

Duress

A person is not guilty of an offense, other than homicide, if he performs an otherwise criminal act under the threat of imminent infliction of death or great bodily harm provided that he reasonably believes death or great bodily harm will be inflicted on himself or on a member of his immediate family if he does not perform such conduct. The MPC has relaxed the imminence rule & says there must be a “serious threat of future bodily harm to the ∆ or his family. Threats to harm any third person may also suffice to establish the defense of duress. Note that an act committed under duress is termed excusable rather than justifiable. The subtle distinction stems from the fact that criminal acts performed under duress are condone by society rather than encouraged.

State v. Toscano—“The Gambling Debt”
- Facts: The ∆ was convicted of conspiring to obtain money by false pretenses. The ∆ argued that he acted under duress, but the trial court judge ruled the threatened harm was not sufficiently imminent.
- Held/Reasoning: Under the MPC, it is up to the jury to decide whether a person of reasonable firmness in the ∆’s situation would have failed to seek assistance from law enforcement, or in the alternative, been unable to resist the coercion.
- RULE: The defense of duress applies to crimes other than murder if an individual participated in conduct b/c he was coerced to do so by the use of force or threat against him or another person whereby a person of reasonable firmness in his situation would have been unable to resist.

Statutory Crimes

Homicide

Classifications of Homicides

At common law, homicides were divided into three classifications:

Justifiable homicides (those commanded or authorized by law);
Excusable homicides (those for which there was a defense to criminal liability); &
Criminal homicides

Common Law Criminal Homicides

At common law, criminal homicides were subdivided into three different offenses.

Murder—the unlawful killing of another human being w/malice aforethought. Malice aforethought may be express or implied.

Malice Aforethought

In the absence of facts excusing the homicide or reducing it to voluntary manslaughter, malice aforethought exists if the ∆ has any of the following states of mind (malice is “implied” for 2-4):

Intent to kill (express malice);
Intent to inflict great bodily injury;
Reckless indifference to an unjustifiably high risk to human life (“abandoned & malignant heart”); OR

Commonwealth v. Malone—“Friends Playing Russian Poker”—RULE: Malice, the state of mind required for murder, is evidenced where an individual performs an uncalled for act in disregard of its likely harmful effects on another even where the harmful result is not intended.

Intent to commit a felony (felony-murder rule)

Deadly Weapon Rule

Intentional use of a deadly weapon authorizes a permissive inference of intent to kill. A deadly weapon is any instrument—or in some limited circumstances, any part of the body—used in a manner calculated or likely to produce death or serious bodily injury.

Voluntary Manslaughter—an intentional killing distinguishable from murder by existence of adequate provocation; (i.e., a killing “in the heat of passion.”)

Elements of Adequate Provocation

At common law, provocation would reduce a killing to voluntary manslaughter ONLY if it met four tests:

The provocation MUST have been one that would arouse sudden & intense passion in the mind of an RP such as to cause him to lose his self-control;
The ∆ MUST have in fact been provoked;
There must NOT have been a sufficient time between the provocation & the killing for the passions of a RP to cool. (This is a factual question that depends upon the nature of the provocation & the attendant circumstances, including any earlier altercations between the ∆ & the victim); AND

Commonwealth v. Carroll—“Hey Joe”

Facts: The ∆ is accused of killing his wife & was charged w/first degree murder. Evidence shows that his wife had some sadistic inclinations & was unhappy with their relationship. The ∆’s professional career forced him to be away for periods of time &, on the night of the murder, the ∆ & his wife were arguing about him leaving for another job.

RULE: While premeditation is an element of first-degree murder, where a killing s willful, deliberate & intentional, no time is too short for the necessary premeditation to occur.

The ∆ in fact did NOT cool off between the provocation & the killing.

State v. Guthrie—“Angry Dishwasher”—RULE: In order to establish premeditation & deliberation under the first-degree murder statute, there must be some evidence that the ∆ considered & weighed his decision to kill.

When Provocation Is Adequate

Adequate provocation is most frequently recognized in the case of:

Being subjected to a serious battery or a threat of deadly force; AND
Discovering one’s spouse in bed w/another person.

Maher v. People—“Wife & Lover went into the Woods”

Facts: The ∆ watched his wife enter the woods w/the victim & leave a ½hr later. He followed the couple after that & the victim entered a saloon. Before entering a friend told him that the day before the two had snuck into the woods & had sex. The ∆ entered the bar & shot the victim in the ear.
Issue: Was the evidence properly exclude by the court that the ∆ was provoked into this actions?
Reasoning: The evidence offered by the ∆ would have been enough to allow the issue of provocation to go to the jury & it would have been up to the jury to find that the act was adequate provoked such that the charge of homicide, had the shooting resulted in death, would have reduced to manslaughter.
RULE: In determining whether the provocation is sufficient or reasonable, a RP standard should be used unless the person whose guilt is in question is shown to have some peculiar weakness of the mind that rises from something other than wickedness or cruelty.

Provocation Inadequate as a Matter of Law

At common law, some provocations were defined as inadequate as a matter of law. The most significant was “mere words.”

Girouard v. State—“What are you going to do?!”

Facts: The ∆ killed his wife after she repeatedly verbally abused him.
RULE: Words alone—that is, unaccompanied by conduct indicating a present intention & ability to cause bodily harm—CANNOT constitute adequate provocation to reduce murder to manslaughter.

Involuntary Manslaughter

Involuntary manslaughter is of two types.

Criminal Negligence

If death is caused by criminal negligence, the killing is involuntary manslaughter. Criminal negligence requires a greater deviation from the “RP” standard than is required for civil liability. (Some states also require that the ∆ have had a subjective awareness of the risk.)

Commonwealth v. Welansky—“The Fire Trap in Boston”

Facts: The ∆ owned & operated a nightclub. On the night of Nov. 28, 1942, an artificial palm tree caught fire & the fire spread, killing a number of the patrons who were unable to escape. Evidence shows that the emergency exits were either in obscure locations, blocked off, or locked. The ∆ also used highly flammable decorations. On the day of the fire, the building was overcrowded b/c of a football game.
Issue: Does reckless conduct require that the resulting harm be intentional?
Reasoning: The essence of reckless conduct is intentional conduct, by way either of commission or of omission where there is a duty to act, which conduct involves a high degree of likelihood that substantial harm will result to another. To convict, the Commonwealth only had to prove that death resulted from a reckless disregard of the safety of the club’s patrons in the event of a fire from any cause b/c the risk of fire in a public establishment is always present. No need to show that the ∆ caused the fire by reckless conduct
RULE: When there is a duty of care for the safety of invitees onto the premises of a business, there is a duty of care for the safety those visitors by the person who maintains the premises. Intentional failure to take such care in disregard of the probable harmful consequences of that failure constitutes wanton or reckless conduct.
- In order to establish criminal liability (as distinguished from negligence) the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects & showed such disregard for the life & safety of others as to amount to a crime against the State & conduct deserving punishment.
- In civil cases, contributory negligence is a complete defense (in jurisdictions w/o comparative negligence). In criminal cases, however, the deceased’s contributory negligence or other misconduct has never afforded a defense.

People v. Hall—“The Speed Skier”—Reasoning: The ∆’s conduct created a risk that was substantial & unjustifiable given his experience & training. A RP in his position would have known that the speed & lack of ability to stop created a risk. It is reasonable to assume that he was aware of the risk that he created & that his conscious disregard of that risk is should impose criminal liability.

“Unlawful Act” Manslaughter

A killing caused by an unlawful act is involuntary manslaughter. There are two subcategories of such acts:

“Misdemeanor-Manslaugher” Rule—a killing in the course of the commission of a misdemeanor is manslaughter, although most courts would require either that the misdemeanor be malum in se (i.e., an inherently wrongful act), or if malum prohibitum, that the death be the foreseeable or natural consequence of the unlawful conduct.
Felonies Not Included in Felony-Murder

If a killing was caused during the commission of a felony but does NOT qualify as a felony-murder case, the killing will be involuntary manslaughter. The death also MUST be a foreseeable consequence of the felony.

Statutory Modification of Common Law Classification

Modern statutes often divide murder into degrees. Under such a scheme, all murders are second-degree murders unless the prosecution proves any of the following, which would make the murder first-degree murder.

Deliberate & Premeditated Killing

“Deliberate” means that the ∆ made the decision to kill in a cool & dispassionate manner. “Premeditated” means that the ∆ actually reflected on the idea of killing, if only for a brief period of time.

First-Degree Felony Murder

Many state statutes list specific felonies that may serve as the basis for felony-murder. If a killing is committed during the commission of one of these enumerated felonies, the killing is usually first-degree murder w/o the prosecution needing to show that the killing was either deliberate or premeditated. The felonies most commonly listed are burglary, arson, rape, robbery, & kidnapping, but other felonies that are inherently dangerous to human life are often specifically added.

Elements of Felony-Murder
- There must be an act (of committing the felony)
- There must be intent (to commit the felony)
- Causation

Second-Degree Felony Murder

Even if the state lists the felonies to be included under the doctrine, a separate statute (or case) may provide for criminal liability for a killing committed during the course of a felony that is NOT listed. Such killings typically will be classified as second-degree murder.

Others

Some statutes make killings performed in certain ways first-degree murder. Thus, killing by lying wait, poison, or torture may be first-degree murder.

Felony Murder (and Related Matters)

As the definition of malice aforethought above makes clear, a killing—even an accidental one—committed during the course of a felony is murder. Malice is implied from the intent to commit the underlying felony.

What Felonies are Included?

Under the common law, there were only a handful of felonies. Today, the criminal codes of sates have created many more.

Scope of the Doctrine

When the felony-murder doctrine is combined w/conspiracy law, the scope of liability becomes very broad. If, in the course of a conspiracy to commit a felony, a death is caused, all members of the conspiracy are liable for murder if the death was caused in furtherance of the conspiracy & was a foreseeable consequence of the conspiracy.

Sometimes the lethal act occurs after the felony has terminated & therefore cannot further it. (Ex. bank robber involved in a fatal accident after he’s already escaped.)

Sometimes a co-felon causes the death by an act unconnected to the felony & no in service of it. (Ex. one of two men planning to commit arson who, while in route, robs & kills someone).
- In US v. Heinlein, three defendants had participated in a rape. In defending herself, the woman stabbed Heinlein. Enraged, Heinlein stabbed & killed her. The court held that the other two felons were not guilty of felony murder b/c Heinlein’s unanticipated actions, not in furtherance of the common plan, could not be attributed to them.
- In People v. Cabaltero, a lookout during a robbery panicked & fired shots at an oncoming car. The leader, angered by the lookout’s actions, killed him. The court held the other members of the group guilty for murder b/c they felt the shooting was connected to the ongoing felony.

Sometimes the act immediately responsible for cuasing the death is committed by a person opposing the felony. (Ex. an officer or victim resisting a robbery may fire a shot that kills a co-felon or an innocent bystander. We will consider this later…)

Limitations on Liability

There are some limitations on liability under the broad felony-murder doctrine.

Commission of Underlying Felony

To convict a ∆ of felony-murder, the prosecution MUST prove that he committed the underlying felony. Thus, if the ∆ has a substantive defense that negates an element of the underlying felony, he has a defense to felony-murder. (Exception being a defense based on the S/L in some states).

Regina v. Serne—“The ‘Accidental’ Fire”

Facts: The ∆s are accused of setting fire to a house in order to collect the insurance money on the furniture, his property/rent, & his son who happened to be disabled. One of the ∆s’ two sons died in the fire & they were indicted for felony murder. Evidence shows that the ∆s were seen in the house shortly before the fires started & that the premises contained a large amount of flammable transparencies next to other flammable materials.
RULE: Any act that is known to be dangerous & likely to cause death, if done for the purpose of committing a felony which causes death, amounts to murder.

Felony Must Be Inherently Dangerous

Other states that permit felony murder liability based on a felony that is not listed sometimes include the additional requirement that the felony be inherently dangerous to human life or that the felony be dangerous to human life as committed. There is a split over whether to take the felony in the abstract or as committed by the ∆.

People v. Phillips—“The Chiropractor’s Guarantee”

Facts: The ∆ induced the victim’s parents to allow him to treat her & no opt for surgery even though doctors had advised the parents that w/o surgery, the victim would die. The ∆ charged the parents $700 for the treatment & medicine. The victim died in about 6mos. The ∆ was charged with felony-murder (grand theft/murder).
Issue: Does the felony-murder rule apply to a crime that could be committed in a way that would make it not inherently dangerous (grand theft)?
RULE: The strict liability of the felony-murder rule is limited to those felonies that are inherently dangerous. The elements of the felony in the abstract, not as committed, determine whether it is inherently dangerous.
- NOTE, that the court looked at the felony in abstract & not as it was committed. This is not true in the next case.

People v. Stewart—“Crackhead Mom”

Facts: The ∆ went on a crack binge for 2-3 days during which she forgot to feed her young infant. The child died from dehydration. The ∆ was charged w/2^nd degree felony-murder for wrongfully permitting a child to be a habitual sufferer.
Issue: Should the court reverse the conviction b/c the ∆’s felony, in abstract, could be committed in a way that is not inherently dangerous?
Reasoning: A number of felonies at first glance would not appear to present an inherent danger to human life but may in fact be committed in such a manner as to be inherently dangerous to life.
RULE: The fact finder should look at the facts of the particular case based &, based on that, should determine whether the felony was inherently dangerous in the manner & circumstances it was committed.

Foreseeability of Death

The majority rule is that death MUST have been a foreseeable result of the commission of the felony. However, it is important to note that courts have been willing to find most deaths foreseeable.

People v. Stamp—“Heart Attack on Floor after Robbery”

Facts: The ∆ robbed the victim &, during the robbery, made him lie on the floor for about 10min. Shortly after the ∆ left, the victim suffered a heart attack & died. Evidence showed that the victim was an older man who was obese & doctors testified that the robbery was too much of a shock to his system.
Reasoning: The felony-murder doctrine is not limited to those deaths which are foreseeable. So long as a victim’s predisposing physical condition, regardless of its cause, is not the only substantial factor bringing about his death, that condition & the robber’s ignorance of it, in no way destroys the robber’s criminal responsibility for the death.
RULE: A felon is held strictly liable for all killing committed by him or his accomplices in the course of the felony. As long as the homicide is the direct causal result of the robbery the felony-murder rule applies whether or not the death was a natural or probable consequence of the robbery.

During the Commission of a Felony—Termination of Felony

The death MUST have been “caused during” the commission or attempted commission of the felony, but the fact that the felony was technically completed before death was caused does NOT prevent the killing from being felony-murder. Deaths caused while fleeing from the crime are felony-murder. But once the felon has reached the place of “temporary safety,” the impact of the felony-murder rule ceases & deaths subsequently caused are not felony-murder. (Ex. think of Garfield’s hypo when the robbers stopped for cookies & sodas).

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

The ∆ is NOT liable for the death of his co-felon caused by the resistance of the victim or police.

Compare—Killing of Innocent Party by Victim or Police

Courts are split when resistance by the victim or police pursuit causes the death of an innocent party rather than a co-felon. Courts that follow the “agency theory” of felony-murder hold that the killing must have been caused by the ∆ or someone acting as the ∆’s agent (i.e., an accomplice); hence, the ∆ is not liable for felony-murder when someone is killed by victim or police.

State v. Canola—“The Jewelry Store Shootout”

Facts: The ∆ & 3 accomplices were attempting to rob the victim’s jewelry store. The victim & his employee resisted & the 2 sides exchanged gunfire. The victim, owner of the shop, & one of the felons died. The ∆ & the remaining accomplices were indicted on 2 counts of murder, 1 count of robbery & 1 count of armed robbery. The murder counts were based on the deaths of the store owner & the accomplice.
Issue: Does the doctrine of felony-murder extend to any killing arising out of the commission of a felony, if it is directly attributable to the act of a person other than the people engaged in committing the felony?
RULE: In order to convict for felony-murder, the killing must have been done by the ∆ or by an accomplice or by one acting in furtherance of the felonious undertaking.

In states following the “proximate cause” theory, the ∆ can be liable when an innocent party is killed by resistance from the victim or police b/c the death is a direct consequence of the felony. (Example earlier in the outline.)

Related Limits on Misdemeanor—Manslaughter

Limits similar to those placed on felony-murder are placed on involuntary misdemeanor-manslaughter. If the misdemeanor involved is NOT malum in se, i.e., one that involves conduct that is inherently wrong, a death caused during the commission of a misdemeanor is manslaughter only if death was a foreseeable result of the commission of the misdemeanor.

Causation

When a crime is defined to require not merely conduct but also a specified result of that conduct, the ∆’s conduct must be both the cause-in fact & the proximate cause of the specified result.

Cause-in-Fact

The ∆’s conduct must be the cause-in-fact of the result; i.e., the result would NOT have occurred “but for” the ∆’s conduct.

“Proximate” Causation

Problems of proximate causation arise only when the victim’s death occurs b/c of the ∆’s acts, but in a manner NOT intended or anticipated by the ∆. The question in such cases is whether the difference in the way death was intended or anticipated & the way in which it actually occurred breaks the chain of “proximate cause” causation.

All “Natural & Probable” Results are Proximately Caused

The general rule is that a ∆ is responsible for all results that occur as a “natural & probable” consequence of his conduct, even if he did NOT anticipate the precise manner in which they would occur. All such results are “proximately caused” by the ∆’s act. This chain of proximate causation is broken ONLY by the intervention of a “superseding factor.”

People v. Arzon—“2^nd Floor Fire”

Facts: The ∆ is accused of murder in the second degree for starting a fire in an abandoned NYC building that led to a fireman’s death. The gov’t produced evidence that the ∆ started the 5^th floor fire, but no evidence that he started the 2^nd floor one that led to the victim’s death.
Issue: Was ∆ criminally liable for the fireman’s death notwithstanding that the victim’s fatal injuries were caused by an independent intervening cause (2^nd floor fire) not attributable to the ∆?
Reasoning: (People v. Kibbe) It is not necessary that the ultimate harm be intended by the actor. It will suffice if it can be said beyond a reasonable doubt that the ultimate harm is something which should have been foreseen as being reasonably related to the acts of the accused.
RULE: An individual is criminally liable for the death of another if his conduct is a sufficiently direct cause of death that could have been reasonably foreseen as a consequence of his actions.

People v. Warner-Lambert Co.—“Chewing-Gum Explosion”

Facts: The ∆ & several of its officers & employees were indicted for 2^nd degree manslaughter & criminally negligent homicide. Several of the corporation’s employees were killed in a massive explosion at one of the ∆’s chewing-gum factories b/c the ∆ used highly explosive materials & ignored the advice of the insurance company to stop. There is no evidence as to what exactly triggered the explosion.
Issue: Can tort law concepts of proximate cause be used to convict a criminal suspect?
Held/Judgment: No. The Court dismissed the indictment.
RULE: The ∆’s actions must be a sufficiently direct cause of the ensuing death before there can be any imposition of criminal liability which is greater than the standard imposed for tort liability.
- In this case, the Court was concerned about the nature of the chain of particularized events which in fact led to the victim’s death.

Rules of Causation

Hastening Inevitable Result

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

Simultaneous Acts

Simultaneous acts by two or more persons MAY be considered independently sufficient causes of a single result.

Preexisting Condition

A victim’s preexisting condition that makes him more susceptible to death does NOT break the chain of causation; i.e., the ∆ “takes the victim as he finds him.”

Intervening Acts

As a general rule, an intervening act will shield the ∆ from liability if the act is a mere coincidence or is outside the foreseeable sphere of risk created by the ∆’s act. Here are some examples:

Acts of Nature—break the causal chain b/c they are coincidences and NOT foreseeable in most cases.

Act by Third Party—Despite improvements in medical care, negligent care remains a foreseeable risk. However, gross negligence or intentional mistreatment would break the causal chain.

Foreseeability in the Medical Field

Regina v. Chesire—If, at the time of death, the original wound is still an operating cause & a substantial cause, then the death can properly be said to be the result of the wound, albeit that some other cause of death is also operating.

Many courts find the initial assailant liable for the victim’s death even when significant medical error contributes to the result.

State v. Shabazz—“Stab Victim that shoulda been in ICU”

Facts: The ∆ stabbed the victim in the abdomen, lung, & liver. The victim was taken to the hospital where he underwent surgery. After surgery, he was placed in a regular hospital room where he died the following morning due to heavy bleeding that resulted from the liver surgery. The TJ barred the ∆ from producing the testimony of 2 medical experts who would have testified that the hospital had been grossly negligent.
Issue: Does the hospital’s negligence absolve the ∆ from liability for the death of the victim?
Reasoning: The Court notes that both the experts acknowledged that the stab wounds would have been fatal in the absence of any medical treatment. At the most, the purported gross negligence would have been a contributing factor, not the sole cause.
RULE: Gross negligence may permit the ∆ to escape liability only when it is the sole cause of the death.

US v. Main—“First on the Scene”

Facts: The ∆ was fleeing a traffic stop at high speeds when his truck veered off the road & collided w/an obstacle. The ∆ was thrown out of his truck, but his passenger was trapped inside the truck. The first officer on seen decided not to move the passenger for fear of aggravating an injury. When the second officer got to the scene the passenger had died b/c s/he couldn’t breath properly. The TJ refused to instruct the jury that it could find that the ∆’s actions were not the proximate cause of death, & ∆ was convicted of involuntary manslaughter.
Issue: Did the TJ commit an error?
Reasoning: The question of whether the failure to get prompt medical attention is not an unlikely hazard for the victim of an automobile accident is a question for the jury to decide. When the jury is told that it must find that the victim’s death was w/in the risk created by the ∆’s conduct, an element of the crime has been erroneously w/drawn from the jury.

Acts by the Victim—If a victim is harmed by the ∆ & subsequently refuses medical treatment, most jurisdictions find this to be foreseeable & would find the ∆ guilty of murder. This rule MAY apply even if the victim acts affirmatively to harm himself (Stephenson case).

People v. Campbell—“Angry Husband Provides Gun for Cheater”

Facts: The ∆ & victim were drinking heavily. The victim was sad b/c he had sex w/the ∆’s wife. The ∆ encouraged the victim to kill himself & eventually gave the victim his gun & left. Shortly thereafter, the victim killed himself. The ∆ is charged w/murder & moves to dismiss on the ground that a homicide charge cannot be based on the act of providing a weapon to a person who subsequently uses it to commit suicide.
PH: The circuit court denied the motion & the court of appeals granted leave to appeal.
Issue: Is the ∆ guilty of murder for simply supplying the means & hoping that the victim would commit suicide?
Held/Judgment: No. The court of appeals reversed the trial court judgment.
Reasoning: The Court notes that the ∆ had no present intention to kill b/c he provided the weapon & left. Also, the term suicide excludes by definition a homicide.
RULE: Hope alone is not the degree of intention requisite to a charge of murder.

People v. Kevorkian (1994) “You Don’t Know Jack”

Facts: The ∆ set up the means by which 2 terminally-ill women took their own life. This took place roughly a year before MI enacted a statute that prohibited giving assistance in a suicide. He was indicted on 2 counts of murder.
Issue: Is the ∆ guilty if he provided another person w/the means to take their own life?
Held/Judgment: No. MI SC remanded for reconsideration based on their opinion.
Reasoning: The Court notes that recent decision drew a distinction between active participation in a suicide & involvement in the events leading up to the suicide, such as providing the means. In this case, the ∆ simply provided a device by which two women could take their lives. The devices operated in such a manner that the final overt act preceding death—pulling a string or turning a gas valve—was the action of each of the women, not the ∆.
RULE: Intentionally providing the means by which another person commits suicide does not rise to the level of murder.

Homicide cannot be committed by the ∆ unless the intervening actor who strikes the fatal blow has been rendered irresponsible by the ∆’s unlawful act.

Stephenson v. State—“Kidnapped Girl”

Facts: The ∆ had been seeing the victim socially for some months & eventually kidnapped her. During which he abused her physically & emotionally, repeatedly attempted to rape her & would not let her go home. The victim eventually was able to purchase some poison from a drug store which she took & made herself very sick. She was unable to recover & eventually died from a number of causes.
Issue: Is the ∆ liable for murder if he didn’t cause death & instead the victim took her own life due to the depraved circumstances?
Reasoning: The court found that the evidence was sufficient & justified the jury in finding that appellant by his acts & conduct rendered the deceased distracted & mentally irresponsible, & that such was the natural & probable consequence of such unlawful & criminal treatment.
RULE: A homicide is committed where an intervening actor who causes the fatal blow is rendered irresponsible as a result of the ∆’s unlawful conduct.

Accomplice Liability

Common Law

The common law distinguished four types of parties to a felony: principals in the first degree (persons who actually engage in the act or omission that constitutes the criminal offense); principals in the second degree (persons who aid, command, or encourage the principal & are present at the crime); accessories before the fact (persons who aid, abet, or encourage the principal but are NOT present at the crime); & accessories after the fact (persons who assist the principal after the crime).

Significance of Common Law Distinctions

At common law, the distinctions between the parties had a good deal of procedural significance. For example, an accessory could NOT be convicted unless the principal had already been convicted, although both could be convicted in a joint trial if the jury determined the principal’s guilt first. Most modern jurisdictions have abandoned this requirement, & an accessory can be convicted even if the principal has evaded apprehension or has been tried & acquitted.

Modern Statutes

Most jurisdictions have abolished the distinctions between principals in the first degree, principals in the second degree, & accessories before the fact (accessories after the fact are still treated separately.) Under the modern approach, all “parties to the crime” can be found guilty of the criminal offense.

Mental State—Intent Required

To be convicted as an accomplice under the prevailing common law rule, a person MUST have given aid, counsel, or encouragement w/the intent to aid or encourage the principal in the commission of the crime charged. In the absence of a statute, most courts would hold that mere knowledge that a crime would result from the aid provided is insufficient for accomplice liability, at least where the aid involves the sale of ordinary goods at ordinary prices. However, procuring an illegal item or selling at a higher price b/c of the buyer’s purpose may constitute a sufficient “stake in the venture” for a court to find intent to aid.

Hicks v. US—“The Indian Kills White Man in Showdown”—RULE: The presence of another person at the scene of a murder who doesn’t assist in carrying out the murder is not sufficient to implicate that person as an accomplice in the absence of evidence of a prior agreement to render assistance in the crime.
State v. Gladstone—“Dog, You Got Weed?”—RULE: The aider/abettor must do something in association or connection w/the principal to accomplish the crime.
- Here the court did not believe that writing down the address & drawing a map to another weed dealer was enough. If he had walked the rat to the dealer, then there would probably be a different outcome.
- The MPC states that “a person is an accomplice of another person in the commission of a crime if . . . acting w/knowledge that such other person was committing or had the purpose of committing the crime, he knowingly, substantially facilitated its commission.”

Scope of Liability

An accomplice is responsible for the crimes he did or counseled & for any other crimes committed in the course of committing the crime contemplated, as long as the other crimes were probable or foreseeable.

People v. Luparello—“Gang Attacks w/Guns & Swords”

Facts: The ∆ is convicted of murder in the first degree. The ∆ wanted to find the location of his former wife who had deserted him to marry another. To find her whereabouts he looked up Mark Martin, a good friend of her current husband. To help him, the ∆ enlisted several friends telling them that he wanted the information at any cost. The friends killed Martin by shooting him.
Issue: Is accomplice liability limited to those crimes the accomplice intended a co-conspirator to commit?
Reasoning: To be a principal to a crime . . . the aider & abettor must intend to commit the offense or to encourage or facilitate its commission. Liability is extended to reach the actual crime committed, rather than the planned or “intended” crime, on the policy that aiders & abettors should be responsible for the criminal harms they have naturally, probably, & foreseeably put in motion.
RULE: An accomplice is criminally responsible for the actual crime committed, rather than merely the intended crime.

Roy v. US—“The Gun ‘Sale’”

Facts: The ∏ helped a paid police informant who attempted to buy a handgun from him. The ∆ told the informant to return later w/$400, & when he did so was referred to Ross, who took him to another area. Ross robbed the informant.
Issue: Is the ∆ guilty of aiding & abetting, as well as, the felony armed robbery?
Held/Judgment: No. Ct overturned the conviction.
Reasoning: The phrase “in the ordinary course of things” refers to what may reasonably ensue from the planned events, not to what might conceivably happen, & in particular suggests the absence of intervening factors. The evidence was insufficient, however, to show that a robbery would follow in the “ordinary course of events,” or that it was a “natural & probable consequence” of the activities in which the ∆ was shown to have engaged.

Wilcox v. Jeffery—“The English Jazz Show”—RULE: Aiding and abetting can be found through the mere encouragement of criminal activity. The encouragement does not have to be directly communicated to the person committing the criminal offense.

The court found that the ∆’s actions contributed to his conviction on the charge of aiding & abetting:
- His paid presence at the concert
- The fact that he reported the musicians’ arrival & the performance in order to sell copies of his magazine.

Complicity by Omission

The MPC provides that a person can be an accomplice if he has a legal duty to prevent the offense & he fails to do so w/the purpose of promoting or facilitating the crime.

In State v. Davis, the ∆ watched as his son raped he victim, a family friend. The victim pleaded w/him to help her, but he told her that he could not & then stepped out of the way while his son dragged her into the bedroom. The ∆ followed & lay down next to her on the bed while his son raped her. The court found that the ∆ was not a mere bystander & held that his refusal to help, & his presence during the rape “facilitated & encouraged” the perpetrator’s acts.

In People v. Stanciel, the ∆ violated a court order to keep her abusive boyfriend away from child & had authorized the boyfriend to discipline the child despite his poast & ongoing abusive behavior. Though ∆ did NOT perform any of the acts that led to her daughter’s death, the court ruled that her failure to protect her child from her boyfriend rendered her an accomplice to her daughter’s murder.

Inability to be Principal No Bar to Liability as Accomplice

One who may NOT be convicted of being a principal may be convicted of being an accomplice.

State v. Tally—“The Bad Judge”—RULE: In this case, the court said that it had to be found that the ∆either: 1) gave confidence to the killers (his act excited, encouraged or emboldened them to kill the victim); or 2) aided them to kill the victim—even if it was not necessary for the killing of the victim (even if it deprived him of a chance of survival)

More policy than anything. Clearly, the ∆ had a culpable mens rea & should be punished.

Exclusions from Liability

Under some circumstances, a person who would otherwise be liable as an accomplice is NOT subject to conviction, either b/c of a legislative intent to exempt him or b/c he has a special defense.

Members of the Protected Class
Necessary Parties Not Provided For
Withdrawal

One who has rendered encouragement or aid to another MAY avoid liability as an accomplice if he withdraws from the crime before it is actually committed by the principal. What is necessary for an effective withdrawal depends upon what the person initially did.

If the person merely encouraged the commission of the crime, withdrawal requires that he repudiate this encouragement.
If the person aissted by providing some material to the principal, withdrawal requires at least the person attempt to neutralize this assistance, e.g.,by doing everything possible to retrieve the material provided.
If it is impossible to withdraw by these methods, an alternative means of withdrawing is to notify authorities or take some other action to prevent the commission of the offense. In any case, the withdrawal must occur before the chain of events leading to the commission of the crime becomes unstoppable.

Property Offenses

There is no difference among the intents required for larceny & embezzlement. The major differences among those crimes are in the kind of misappropriation of the property.

Larceny

The basic common law property offense that consists of: (i) a taking; (ii) and carrying away (asportation); of tangible personal property; (iv) of another; (v) by trespass; (vi) w/intent to permanently (or for an unreasonable time) deprive the person of his interest in the property. The MPC no longer requires asportation, only that the ∆ exercise unlawful control.

Requirement that Taking Be from One w/”Possession”

The property must be taken from someone w/possession other than the ∆. If the ∆ had possessed at the time of the taking (e.g., ∆ is a bailee of the property), the resulting offense is not larceny, although it may be embezzlement. However, if the ∆ has “custody” rather than “possession,” her misappropriation of the property is larceny.

Commonwealth v. Tluchak—“They Took the Commode Too?!”

Facts: The ∆s agreed to sell their farm to the buyers. When the buyers took possession, they discovered that several items which had been on the premises at the time of the purchase were missing. As a result, the ∆s were convicted of larceny.
Held/Reasoning: No. The ∆s still had lawful possession of the goods & could not commit larceny b/c larceny requires criminal trespass on the right of possession & the ∆s had the right of possession until the house changed hands.
RULE: Sellers that refuse to deliver goods sold to purchasers are not guilty of larceny. They could be found liable, however, for fraudulent conversion.

Taking Must Be “Trespassory”

The ∆ must take the property from the possession of another in a trespassory manner, i.e., w/o the consent of the person in possession of the property.

Taking by Consent Induced by Misrepresentations—“Larceny by Trick”

If the victim consents to the ∆’s taking possession of the property but this consent has been induced by a misrepresentation, the consent is NOT valid. The resulting larceny is often called “larceny by trick.”

Victim’s Help Negates the Trespass Element

Where the owner of property, by himself or his agent, actually or constructively, aids in the commission of the offense, as intended by the wrongdoer, by performing or rendering unnecessary some act in the transaction essential to the offense, the would-be criminal is not guilty of all of the elements of the offense.

Topolewski v. State—“Leave the Meat Out Back”

Facts: The ∆ was charged w/having stolen three barrels of meat valued at $55.20 & was found guilty.
Issue: Can a charge of larceny be sustained where the goods were taken & carried away through the assistance of the legal owner of the stolen goods?
Held/Reasoning: No. The actions of the agent eliminated the element of trespass. The court held that the ∆ would have been guilty had the company merely provided an improved opportunity to steal the barrels of meat himself. However, the agents more than improved the opportunity for the ∆ to take the barrels of meat.

Embezzlement

Embezzlement was not originally a common law crime. Intended to plug the gaps in the law of larceny, it was made a misdemeanor by statute in 1799 & is regarded as part of American common law. It generally requires: (i) the fraudulent; (ii) conversion; (iii) of property; (iv) of another; (v) by a person in lawful possession of that property.

Distinguished from Larceny.

Manner of Obtaining Property

In embezzlement, the misappropriation of the property occurs while the ∆ has lawful possession of it. In larceny, it occurs generally at the time the ∆ obtains wrongful possession of the property.

Nolan v. State—“Manager Puts Takes $$ Out of Drawer”—RULE: The crime of larceny is committed when an individual steals goods while in the possession of the owner.

This case turns on the theory that goods which have reached their destination are in the owner’s constructive possession, even though he may not yet have touched them.

Manner of Misappropriation

Larceny requires caption & asportation w/the intent to permanently deprive. Embezzlement requires intentional conversion.

Robbery = Larceny + Fear
Receiving stolen property = Receiving property from another + Knowing it is stolen
Forgery = Fraudulent making + Of a false writing + W/intent to make wrongful use of the document.

Inchoate Offenses

Conspiracy

At common law, a conspiracy was defined as a combination or agreement between two or more persons to accomplish some criminal or unlawful purpose, or to accomplish a lawful purpose by unlawful means. Recent state codifications require that the object of the conspiracy be a specifically proscribed offense. Yet many states essentially codify the expansive common law notion by making it a crime to conspire to commit acts injurious to the public welfare. The SC has indicated that such statutes are unconstitutionally vague unless construed narrowly.

No Merger—Conviction for Conspiracy & Completed Crime

If the conspirators are successful, they can be convicted of both criminal conspiracy AND the crime they committed pursuant to the conspiracy.

When a new conspirator joins a conspiracy, they are liable for all acts of the co-conspirators even prior acts, except for substantive crimes.

Liability of One Conspirator for Crimes Committed by Other Conspirators

One conspirator may, by virtue of his participation in the scheme, meet the requirements for “aiding & abetting” the commission of crimes by his co-conspirators & therefore be liable for those crimes as an accomplice. Even if the conspirator did NOT have the sufficient mental state for accomplice liability, a separate doctrine provides that each conspirator may be liable for the crimes of all other conspirators if two requirements are met:

The crimes were committed in furtherance of the objectives of the conspiracy; &

State v. Pinkerton—“Jailed Moonshine Conspiracy”

Facts: The ∆s are brothers who live a short distance away from each other & were indicted for violations of the IRC stemming from their moonshine business. There was no evidence that Daniel had participated directly in the commission of the substantial offenses & he was in fact in prison when some of them occurred.
Issue: Was there sufficient evidence to implicate Daniel in the conspiracy?
Held: Yes.
Reasoning: Walter had committed the crimes in furtherance of the conspiracy between the 2 brothers. The requirement that an overt act be done can be met by the act of one for the both. The court saw no reason why liability for substantive crimes committed in furtherance of a conspiracy should not be imputed to all ∆s.
RULE: An over act of one partner may be the act of all w/o any new agreement specifically directed to that act.

The crimes were “a natural & probable consequence” of the conspiracy, i.e., foreseeable.

State v. Bridges—“Returning to the Party w/Backup”

Facts: The ∆ got into an argument at a birthday party & left to get back-up. He returned w/2 friends that both had guns w/the intent to keep others out of the fight. There was a confrontation & someone hit one of the friends in the face, the friend opened fire into a crowd killing one of the innocent bystanders.
Issue: Can the ∆ be found guilty for the murder committed by the friend?
Held: Yes.
RULE: A co-conspirator may be liable for the commission of substantive criminal acts that are not w/in the scope of the conspiracy if they are reasonably foreseeable as the necessary & natural consequences of the conspiracy.

State v. Stein—Allowing Pinkerton liability for specific intent crimes allows the state to skip the required mens rea element. ***Therefore the MPC rejects the Pinkerton doctrine!!

This doctrine applies ONLY if the conspirator has NOT made a legally effective withdrawal from the conspiracy before the commission of the crime by the co-conspirator.

Attempts Distinguished

In attempt cases, the law requires that there be a substantial step toward commission of the crime. In conspiracy cases, at least at common law, the agreement itself is normally sufficient to constitute the crime. Hence, in common law conspiracy cases the law intervenes at an earlier stage than the planning of the crime. The reason for this is that the secret activity is potentially more dangerous to society &, since a group is involved, it is more difficult for one person to stop the activity once the agreement has been made.

Elements—the elements of conspiracy at common law are as follows:

An agreement between two or more persons—can be inferred from conduct.

Interstate Circuit, Inc. v. US—“Movie Distributor Conspiracy”—RULE: Evidence of agreement between conspirators need not be direct, but may be inferred from the acts taken by conspirators.

Intent to enter into an agreement—the ∆ must intend to achieve the objective of the conspiracy. Must be established for each ∆.

Intent to achieve/facilitate the objective of the agreement—intent CANNOT be inferred from mere knowledge.

People v. Lauria—“The Prostitution Ring”—RULE: The intent of a supplier who knows of the criminal use to which his supplies are put to participate in the criminal activity connected w/the use of his supplies may be established by:

(1) Direct evidence that he intends to participate, OR
1. The ∆ selling illegal goods acquired a sufficient stake in the venture.
2. Where no legitimate use for the goods exists.
3. Where the volume of business w/the buyers is grossly disproportionate to any legitimate demand, or when sales for illegal use amount to a high proportion of the seller’s total business.
(2) Through an inference that he intends to participate based on:
1. His special interest in the activity, OR
2. The aggravated nature of the crime itself.

An overt act in furtherance of the conspiracy, but mere preparation will usually suffice if performed by any one of the conspirators.

Agreement Requirement

The parties MUST agree to accomplish the same objective by mutual action. The agreement need NOT be express. The existence of an agreement may be shown by a concert of action on the part of the conspirators over a period of time under circumstances showing that they were aware of the purpose & existence of the conspiracy & agreed to participate in the common purpose. Where multiple crimes & multiple parties are involved, there are often problems in deciding whether there is a single conspiracy or several smaller conspiracies.

Multiple Crimes

If there is an initial agreement among the parties to engage in a course of criminal conduct constituting all the crimes, then there is only one conspiracy.

Number of Conspiracies in Multiple Party Situations

In complex situations involving numerous parties, it is sometimes important to determine how many conspiracies existed & who conspired w/whom. There are two general ways to characterize situations of this sort.

“Chain” Relationship—On Large Conspiracy

If there is a series of agreements, all of which are regarded as part of a single large scheme in which all of the parties to the subagreements are interested, the situation will be regarded as one large conspiracy involving all of the participants. The subagreements will be characterized as “links” in the overall “chain” relationship.

“Hub-and-Spoke” Relationship—Multiple Conspiracies

One participant may enter into a number of subagreements, each involving different persons. All of the agreements are similar in that they have one common member. However, if it is established that the subagreements are reasonably independent of each other the situation will be regarded as involving numerous different & independent conspiracies. (ex. Interstate Circuit case)

Termination of Conspiracy—in order to leave a conspiracy, the ∆ must make an affirmative action to disavow himself from conspiracy.

Defenses—(see Attempt)

Attempt

A criminal attempt is an act that, although done w/the intention of committing a crime, falls short of completing the crime. An attempt therefore consists of two elements: (i) a specific intent to commit the crime, & (ii) an overt act in furtherance of that intent.

Intent—the ∆ must have the intent to perform an act & obtain a result that, if achieved, would constitute a crime.

Attempt Requires Specific Intent

Regardless of the intent required for a completed offense, an attempt always requires a specific intent. For example, attempted murder requires the specific intent to kill another person, even though the mens rea for murder itself does NOT necessarily require a specific intent to kill.

Smallwood v. State—“The Infected Rapist”

Facts: The ∆ was convicted in a non-jury trial of three counts of assault w/intent to murder his rape victims. Evidence shows that the ∆ was HIV positive & was aware of it & still chose not to wear condoms during any of his assaults. The ∆ argues that the evidence is insufficient to infer intent to kill.
Issue: Is there sufficient evidence to show that the ∆ intended to commit murder when he raped his victims?
Reasoning: State presented no evidence from which it can reasonably be concluded that death by AIDS is a probable result of the ∆’s actions to the same extent that death is the probable result of firing a deadly weapon at a vital part of someone’s body. Also, the cases cited by the State are distinguishable b/c the ∆s in those cases either made explicit statements demonstrating an intent to infect their victims or have taken specific actions demonstrating such an intent & tending to exclude other possible intents.
RULE: Intent to kill under the proper circumstances can only be inferred from the use of a deadly weapon directed at a vital part of the body.

Attempt to Commit Negligent Crimes is Logically Impossible

A crime defined as the negligent production of a result CANNOT be attempted, b/c if there were an intent to cause such a result, the appropriate offense would be attempt to intentionally commit the crime rather than attempt to negligently cause the harm.

Attempt to Commit Strict Liability Crimes Requires Intent

Although a SL crime does NOT require criminal intent, to attempt a SL crime the ∆ MUST act w/the intent to bring about the proscribed result.

Overt Act

The ∆ MUST have committed an act beyond mere preparation for the offense. Several tests have been used to determine whether the act requirement for attempt liability has been satisfied:

People v. Rizzo—“The Pay Roll Robbers”

Facts: The ∆s intended to rob an individual of a payroll he routinely carried; however, they were arrested while searching for the man & never actually found him.
Issue: Did the actions of the ∆s constitute an attempted robbery?
Held/Judgment: No. ∆s’ conviction reversed.
Reasoning: For the crime of attempt, the law will consider those acts which are so near to its accomplishment that in all reasonable probability the crime itself would have been committed but for timely interference. Here, the ∆s planned to commit the crime; however, the opportunity never came.
RULE: Only the acts so near the accomplishment of a crime that in all reasonable probability the crime itself would have been committed but for timely interference.
- Note that this case would probably have two different result if decided by the two different tests.

Traditional Rule—Proximity Test

Traditionally, courts used a proximity approach; i.e., they have evaluated the act based on how close the ∆ came to completing the offense. Under the typical proximity test, attempt requires an act that is dangerously close to success.

Majority/MPC Test—“Substantial Step” Test

The MPC & most state criminal codes require that the act or omission constitute a “substantial step in a course of conduct planned to culminate in the commission of the crime.” In addition, an act will NOT qualify as a substantial step unless it is strong corroboration of the actor’s criminal purpose.

US v. Jackson—“Hey Wait, We Didn’t Rob the Bank Yet!”

Facts: ∆s conspired to rob a bank. They had formed a plan to rob the bank a week prior to their arrest, but decided to try it the following week after scouting the bank. After one of the conspirators was arrested on separate charges and told the police of the plan, the remaining conspirators were arrested while driving towards the bank on the morning they were going to attempt the robbery. Their car had a fake license plate, and it contained a suitcase, two shotguns, a revolver, handcuffs, and masks.
Issue: Did the actions of the ∆s meet the standards of an attempted robbery?
Held: Yes. Conviction affirmed.
Reasoning: The court used the theory that in order to have an attempt, the defendants must take a substantial step towards the commission of the crime with the intent to commit the crime. The court used US v. Stallworth to argue that a substantial step does not have to be the 'last proximate act' and it ruled that what the defendants did in the current case was enough of a substantial step to hold them liable for attempted robbery.
RULE: To be guilty of an attempt, "First, the defendant must have been acting with the kind of culpability otherwise required for the commission of the crime which he is charged with attempting... Second, the defendant must have engaged in conduct which constitutes a substantial step toward commission of the crime. A substantial step must be conduct strongly corroborative of the firmness of the defendant's criminal intent."

Defenses to Liability for Attempt
- Impossibility of Success

Factual impossibility traditionally has been distinguished from legal impossibility, & should be distinguished for exam purposes.

Legal Impossibility is Always a Defense

Legal impossibility arise ONLY when the ∆ did, or intended to do, acts that would NOT constitute a crime under any circumstances. So defined, all states (& the MPC) will recognize this type of legal impossibility.

Factual Impossibility is No Defense

It is NO defense to attempt that it would have been factually impossible for the ∆ to complete her plan, i.e., do all of those things that she intended to do. This is factual impossibility.

Abandonment

If a ∆ has, w/the required intent, gone beyond preparation, may she escape liability by abandoning her plans? The general rule is that abandonment is NEVER a defense. The MPC approach is that withdrawal will be a defense but ONLY if:

It is fully voluntary & NOT made b/c of the difficulty of completing the crime or b/c of an increased risk of apprehension; &

It is a complete abandonment of the plan made under circumstances manifesting a renunciation of criminal purpose, NOT just a decision to postpone committing it or to find another victim.

Solicitation

As a rule, it is NEVER enough of a substantial step/proximate cause for solicitation of a crime to be an attempt crime.

Prosecution for Attempt

A ∆ charged w/a completed crime MAY be found guilty of either the completed crime or an attempt to commit the crime as long as the evidence presented supports such a verdict. The reverse is NOT true. A ∆ charged only w/attempt may NOT be convicted of the completed crime.

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Friday, December 14, 2012

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