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:
a
reflex or convulsion;
a
bodily movement during unconsciousness or sleep;
conduct
during hypnosis or resulting from hypnotic suggestion;
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:
the
omission is expressly made sufficient by the law defining the
offense; or
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.
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
∆’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??
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.
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.”
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”
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).
Mens
rea applies to EVERY ELEMENT of the statute.
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.
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.
Applicability
of Certain Defenses—some
defenses, such as voluntary intoxication & unreasonable mistake
of fact, apply ONLY to 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.
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.
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.
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.
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!!!
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.
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.
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.
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.
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. (2nd
Amendment?!)
The
majority view is that SL offenses are constitutional. But, like all
laws, SL statutes must comply w/due process.
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?
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.
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.
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)
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.
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)
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:
the
ignorance or mistake negatives the purpose, knowledge, belief,
recklessness or negligence required to establish a material element
of the offense; or
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:
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
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.
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.
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.
Any
mistake
of fact, reasonable or unreasonable, is a defense to a specific
intent crime.
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.
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.
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.
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 9th
Circuit set asie the conviction on the ground that his conduct was
protected by the 1st
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 9th
Circuit decision, the gov’t also attempted to prosecute the ∆
for his second demonstration.
Held/RULE:
The ∆
could not be prosecuted for the 2nd
demonstration. The Court of Appeals held that the ∆ had a due
process right to rely on the previous 9th
Circuit decision.
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
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 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”
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
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.”
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.
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.
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.
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.
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.
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.
Statutory
Crimes
Homicide
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
At
common law, criminal homicides were subdivided into three different
offenses.
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.
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.
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.
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.
Adequate
provocation is most frequently recognized in the case of:
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.
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 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.
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”
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.
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.
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.
Some
statutes make killings performed in certain ways first-degree murder.
Thus, killing by lying wait, poison, or torture may be first-degree
murder.
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.
Under
the common law, there were only a handful of felonies. Today, the
criminal codes of sates have created many more.
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.
There
are some limitations on liability under the broad felony-murder
doctrine.
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.
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.
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/2nd
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.
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.
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).
The
∆ is NOT liable for the death of his co-felon caused by the
resistance of the 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.)
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.
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.
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.
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—“2nd
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 5th
floor fire, but no evidence that he started the 2nd
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 (2nd
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 2nd
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.
An
act that hastens an inevitable result is nevertheless a legal cause
of that result.
Simultaneous
acts by two or more persons MAY be considered independently
sufficient causes of a single result.
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.”
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:
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.
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.
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.
These
cases reflect the generally prevailing American law: One who
successfully urges or assists another to commit suicide is not
guilty of murder, at least so long as the deceased was mentally
responsible & was not forced, deceived, or otherwise subject
to pressures that rendered his action partly involuntary.
Foreseeability
does not apply in these cases because we tend to regard a person’s
acts as the product of his or her choice, not as inevitable
results of a chain of events governed by physical laws. The law
of causation treats
physical events
that follow from a person’s actions as caused by him or her
(subject to the requirements of proximity foreseeability, & so
forth), but it ordinarily does not treat human
action that follows from an initial actor’s conduct as caused by
that actor, even when the subsequent human action is entirely
foreseeable.
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
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).
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.
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.
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.”
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
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.
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)
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.
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.
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.
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.
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.
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.”
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
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.
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.
Larceny
requires caption & asportation w/the intent to permanently
deprive. Embezzlement requires intentional conversion.
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.
If
the conspirators are successful, they can be convicted of both
criminal conspiracy AND
the crime they
committed pursuant to the conspiracy.
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:
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.
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!!
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.
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
The
∆ selling illegal goods acquired a sufficient
stake in the
venture.
Where
no legitimate use
for the goods exists.
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:
His
special interest in the activity, OR
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.
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.
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.
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.
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.
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)
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.
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.
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.
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.
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.
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.
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."
Factual
impossibility traditionally has been distinguished from legal
impossibility, & should be distinguished for exam purposes.
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.
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.
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:
As
a rule, it is NEVER enough of a substantial step/proximate cause for
solicitation of a crime to be an attempt crime.
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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