What are the Strategies of Crime Prevention

(1) Retributive

(2) Utilitarian (which includes Deterrence, Rehabilitation, & Incapacitation)

What does the Retributive strategy of Crime Prevention include?

Utilitarian?

Deterrence?

Cannot deter an involuntary act

Note: Life/Death is the best sentence to deter robbery but you can’t a;ways use maximum deterrence.

Rehabilitation (Just deserved)

Not considered primary purposes of punishment today; Purpose is to make it so they won’t commit the crime again.

Administer punishment to inflict pain upon a subject on account of a crime committed by the person. 

Incapacitation (Specific Deterrence)

Where punishment is not related to the type of offenses, but the fact that they’ve committed the acts multiple times; the removal of the problem. 

(I.e. 3 strikes law)

Necessity (Choice of lesser Evils)…. Defense for murder? 

No, there is never a justification for killing an innocent.

Case: Regina v. Dudley

Elements of Criminal Conduct

(1) Criminal conduct (Actus Reus)

(2) Attendant Circumstances - Circumstance that attend the act

(3) Result element- some crimes require particular results in order to be considered criminal

(4) Mens Rea- Intentionality of a crime

What is Actus Reus?

The wrongful deed that comprises the physical components of a crime and that generally must be couple with MENS REA to establish criminal liability.

(1) the law can’t hope to deter involuntary acts

(2) Personal security would otherwise be undermined; you would be held criminally responsible for an act over which you had no control

(3) Punishment does not fit the crime unless it is voluntary. (retribution)

(4) You are not blameworthy if the act was involuntary.

What makes a person guilty of a crime?

(1) Conduct which includes a voluntary act; or

(2) Omission to perform an act of which physically capable 

What is considered an involuntary act?

As long as one act for commission of the crime is voluntary, there can be criminal liability however they must commit all of the acts required to have committed that crime whether voluntary or involuntary. 

Rationale: If you did an act voluntarily, you had control over it ad the ultimate result because the act that was voluntary you could’ve avoided. 

Is Unconsciousness a defense to a criminal homicide charge?

Yes, unconsciousness is a complete defense to a charge of criminal homicide because the actus reus was not voluntary. 

Note: Involuntary acts are not punishable

(1) Cannot deter an unconscious act

(2) Incapacitation can be served by convicting

(3) Rehabilitation could be served by convicting

(4) Retribution is not served because society does not view you as blameworthy if you did not have control over your act. Not just desserts.

What is a Omission?

If a person had a duty to act but failed to do so. 

(Actus Reus elements established)

(1) Made a contract (ex. if a D were a paid babysitter then he would have entered into a contract and is she did not perform would have failed to act)

(2) Voluntary assume responsibility of another (Ex. The care and seclusion of the helpless person from care by others)

(3) Status relationship (ex. Parent/child)

(4) Statutory Duty (statute imposes a legal duty on the person)

(5) Creation of Peril (if criminal act put someone in harm’s way)

MPC 2.01(3)

Does the U.S. criminal system punish people for not satisfying a MORAL duty?

What is considered a moral duty? And why doesn’t the U.S. consider failure to fulfill moral duties criminal?

(1) Might be liable for hurting someone trying to help

(2) Your life could be in danger trying to help another

(3) No clear lines on when you should help

(4) Economy of the justice system (waste of time/money) on something that isn’t that big of a deal. 

What is a Mens Rea?

(1) Level of awareness; culpable mental state

(2) Narrow Def: The kind of awareness of the consequences of your action that is necessary for your act to constitute a crime.

(3) Broad def: Moral blameworthiness

Note: The requirement of Mens Rea reflects the view that blame and punishment are inappropriate and unfair in the absence of choice.

Categories of Mens Rea- Culpable Mental States (Under MPC 2.02)?

One of these mental states is required for each material element of an offense.

(1) Purposely (aim or desire)

(2) Knowingly (awareness of fact)

(3) Recklessly (Strict liability) (awareness of substantial & unjustifiable risk)

(5) Negligently (reasonable person would’ve been aware of the risk)

Purposely (Mens Rea category)

A person acts purposely with respect to a material element of an offense when:

(1) The element involves the nature of his conduct or a result thereof, it is his conscious objective to engage in conduct of that nature or to cause such a result; and 

(2) The element involves the attendant circumstances; he is aware of the existence of such circumstances or he believes or hopes they exist

Actus Reus: Conscious objective to engage in conduct

Attendant Circumstance: Aware of the circumstance, believes it exists or hope it exists.

Result: Conscious object to cause that result

Knowlingly

(Mens Rea Category)

(awareness of fact) a person acts knowingly with respect to a material element of an offense when:

(1) it 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; and

(2) it involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result. 

Actus Reus: Aware

Attendant Circumstance: Aware

Result: practically certain (cannot be aware of a fact that has not happened yet)

Recklessly 

(Mens Rea Category)

(1) Strict Liability;

(2) awareness of substantial and unjustifiable risk

(3) A person is aware of the possibly risks and acts anyway;

(4) it’s disregard involves a gross deviation from the standard of conduct that a law aiding person would observe in the actor’s situation.

Substantial and Unjustifiable

(1) Stepping beyond the bounds of what reasonable people would do.

(2) A clear deviation from what reasonable people would do.

Negligently

(Mens Rea Category)

(1) A person should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct.

(2) involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation. 

(1) Determine the material element of an offense

(2) Determine which type of mens rea is required with respect to each element

Risk defined by MPC

(1) There is a risk

(2) The risk is substantial

(3) The risk is unjustifiable

(1) Awareness that action posed a substantial risk of prohibited harm and did it anyway (common law)

(2) MPC 2.02(3)- if no mens rea stated then recklessness must be proven

(3) MPC 2.02(1)- a person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently with respect to each material element of the offense.

(4) MPC 2.02(4) the culpability that is sufficient for the commission of an offense defined in the law (must be applied to all material elements)

Specific Intent v. General Intent

(these terms were eliminated in the MPC)

Specific Intent: the criminal act was done with a specific mens rea; act done with a specified further purpose in mind; "with knowledge of relevant attendant circumstances"

General Intent: D did the criminal act on purpose, not by accident; there was an intentional action. 

Examples of Specific Intent Crimes

(1) Burglary is commonly described as a “specific intent crime” because it requires that D have the further objective of committing a felony once inside; w/o that further purpose, there would only be proof of a “general intent crime,” such as trespassing so long as he knew of the nature of the acts he performed (another example: assault with intent to kill vs. battery)

(2) Bigamy- depending on the jurisdiction, may have to prove knowledge of the attendant circumstance (still being married)

When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist. 

Note: This allows a jury to find knowledge when something less than knowledge is proven- general rule: knowledge can be satisfied by willful ignorance.

Public Policy: If positive knowledge was required, then anyone could smuggle drugs willfully avoiding knowledge. 

When is Mistake of Fact/Law a defense?

When does a person run the risk of creating a greater more serious crime?

(“Lesser crime” Principle)

Why do we have strict liability crimes?

(1) Sometimes it is better to put the responsibility on those who have the opportunity to prevent harm rather than on the defenseless public. 

(2) Trying to protect the general public versus the individual who may have the opportunity to prevent the harm.

Public Welfare/ Regulatory Offenses

Why stigmatize when the parties are not fault ?

(1) It’s retaliatory punishment.

(2) We need to protect the public and when it comes down to the public and you then the public will win.  

If the common law does not have a mens rea, is it read in by the courts?

Yes, because

(1) no cupable mental state = no awareness of the crime you were committing & you shouldn’t be punished;

(2) No liability without proof of fault.

Is Mistake of Law a defense?

(1) Mistake of Fact: NO Mens Rea necessary (ex. Knowledge of possession of a gun)

(2) Mistake of Law: Mens Rea is needed; not a defense.

(1) It doesn’t serve retribution. If D not blameworthy bc he didn’t know the act was wrong.

(2) It doesn’t serve deterrence. if someone doesn’t know they are breaking the law then you are not going to be deterred from breaking it. 

Why doesn’t the court allow mistake of law as a defense?

(policy argument)

(1) We want to discourage ignorance of the law; if you hold people liable for not knowing what the law requires, you are encouraging them to find out what the law is and comply with it.

(2) to prevent abuse by those who would use this as an excuse when they actually committed an evil act. 

What is the problem with not allowing the mistake of law as a defense?

(1) Injustice to the individual because there is no blameworthiness (goes against retribution), but court want to use this case as deterrence (but how can you deter someone who is unaware that what they are doing is unlawful?); you can’t deter reasonable acts

(2) Criminal law is purposefully complex, yet the more complex the law the more excuses people have; General non-compliance is a problem because of complexity of law. 

Yes, because no mens rea is read into the mistake of facts laws. 

Under common law mistake of fact you would not be guilty and under mistake of law you would be guilty. 

When is Mistake of Law a defense?

(1) the statute defining the offense is not known to the actor and has not been published or otherwise made available

(2) He acts in reasonable reliance upon an official statement of the law, afterward determined to be erroneous, contained in (i) statute, (ii) judicial decision, (iii) administrative order, or (iv) official interpretation by public officer or body charged with responsibility for the interpretation, administration or enforcement of the law.

*This exception only works if the official statement was later determined to be wrong by the court.

*The court rejected this exception bc they believe “the exception would swallow the rule”; mistake about law would be encouraged resulting in an infinite number of mistake of law defenses. 

Is Mistake of Fact and Mistake of Law a defense under the MPC?

mistake of fact or law is a defense if the mistake negates the mens rea required to establish a material element of the offense.

What are the Elements of Rape?

 (1) vaginal intercourse,

(2) by force or threat,

(3) without consent,

(4) some states require reasonable resistance, other use resistance as evidence of force and/or non consent)

Evidence of Force (for rape)

Rape defined in the MPC

(MPC 213.1(1))

a male who has sexual intercourse with a female not his wife is guilty of rape if: (1) He compels her to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone; or 

(2) He has substantially impaired her power to appraise or control her conduct by administering or employing without her knowledge drugs, intoxicants or other means for the purpose of preventing resistence; or

(3) The female is unconscious; or

(4) the female is less than 10 years old 

(1) Some jurisdictions eliminate the requirement of force and state that intercourse without consent is either rape or a lessor degree of sexual assault

(2) Other jurisdictions interpret force to include the physical action involved in the act of intercourse (penetration)

(3) Vast majority require both the defendant’s force and the victim’s non-consent before that act of sexual penetration becomes a felony

Two elements of force that must be independently satisfied in rape?

Sexual intercourse was committed by:

(1) Means of physical force, nonphysical constructive force, or threats of bodily harm either explicit or implicit

(2) At the time of penetration there was no consent

The Resistance Requirement (Rape)

(1) Resistance included in some statutes. Written in.

(2) Resistance has been read into statutes as a requirement somehow implicit in the elements of force or non consent

(3) Utmost resistance, earnest resistance, reasonable resistance

(4) Other states resistance is no longer formally required

(5) Frozen frieght might manifest in an outward conveyance of the victim

When is resistance unnecessary in rape cases?

Resistance unnecessary in at least some situations

(1) Reasonable resistance is subjective;y measured based on the circumstances.

(2) If the victim reasonably feared serious bodily harm then the reasonable amount of resistance is no resistance at all. 

(1) Absence of resistance needs to be explained by fears that are objectively reasonable to assure that the defendant realizes that the woman is submitting out of fear rather than desire.

(2) Victim’s fear must be objectively reasonable. A conviction can be held when the victim’s fear is unreasonable is the perpetrator knew of the victim’s subjective fear and took advantage of it. 

(1) Threats made well before the act of penetration.

(2) There is no force.

(1) Position of power

(2) Forcible compulsion

(3) Rape requires actual physical compulsion or violence or a threat to prevent resistance by a person of reasonable resolution

(4) Coercion, extortion, duress

(5) Economic superiority

Minimum Mens Rea needed for Rape

Negligence- you don’t look at what D subjectively thought, that’s irrelevant, but you look at all the circumstances and consider what a reasonable person would have perceived about consent under the circumstances.

*Strict Liability it’s about whether there was actually consent and it doesn’t mater what the defendant thought

*Rule: an unreasonable mistake of fact regarding non-consent is not a defense 

"No means No” strict liability for rape

Can force be a mens rea for Rape?

(1) Malicious injury- must be reckless

(2) Robbery- must have knowledge

(3) Rape- D is guilty if only negligent

To encourage reporting of rape; perhaps victim is more likely to come forward if the crime is easier to prove.

(1) Murder= unlawful killing with malice aforethough

(2) Manslaughter= unlawful killing without malice aforethought

Malice aforethought:

(1) Intent to Kill

(2) Gross Recklessness

(3) Felony Murder

Deliberate could mean:

(1) With careful thought and reflection (requires time)

(2) Willful, meant to do it, purposely (requires time)

(1) relationship to accused

(2) Plan or preparation existed

(3) Type of weapon

(4) Place of killing

*No factor is controlling, any one or all taken together may indicate actual reflection on the decision to kill.

MPC 210.2 (Criminal homicide)

Model Penal code does not divide murder by degrees based on premeditation; criminal homicide constitutes murder when it is committed:

(1) Purposely or knowingly; or

(2) with extreme/gross recklessness

Malice Aforethought = murder

(1) Intent to Kill

(2) Implied malice

(3) Abandoned and malignant heart

Provocation (homicide)

(1) Extreme assault or battery

(2) Illegal arrest

(3) Injury to a close relative

(4) Sudden discovery of spouse in act of adultery

When is Murder downgraded to Manslaughter?

(1) When committed under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse.

The reasonableness of such explanation or excuse shall be determined reasonable person standard.

*Not popular because it’s extremely broad-- it’s allows mitigation in circumstances where D does not seem less blameworthy

Elements of Emotional Disturbance

(1) Subjective- defendant must have acted under EED (was he disturbed?)

(2) Objective- there must be a reasonable explanation for the EED (was he reasonably disturbed?)

EED does not have to be spontaneous, so cooling off period does not matter. 

Can the standard for judging “reasonableness” be individualized in provocation?

(to take into account certain characteristics of the defendant) 

(1) The standard is usually not individualized, but the gravity of the provocation may be individualized (ex. Man who kills prostitute after she teases him about his impotence- his personal characteristic (impotence) increased the gravity of the provocation)

(2) Culturally-based defenses are usually not accepted because if we do individualize for each case, then the law becomes not normative of what we espect 

(3) MPC- the reasonableness is to be determined from the viewpoint of a person in that actor’s situation.

Manslaughter defined

Unintended Killings (defined)

 Defendant may not have intended to kill, but could be guilty if created a risk that death would result.

Civil vs. Criminal Liability

(1) Gross negligence is required for homicide (involuntary manslaughter); criminal punishment is over-punishment for ordinary negligence.

(2) We save criminal punishment for serious anti-social behavior; otherwise you’re going to impact the willingness of ordinary law-aiding citizens to engage in potentially dangerous activity (ex. driving a car, being a doctor)

The element that seems to distinguish gross negligence from ordinary negligence in this case is the gravity of the substantial harm

(1) High likelihood of harm

(2) Seriousness of the harm

(a) Magnitude

(b) Gravity

(3) Defendant’s awareness of the risk

Elements of Criminal Negligence

(1) Awareness of risk of death (reasonable person’s awareness)

(2) Difference in the degree of risk

(i) high degree of likelihood

(ii) That substantial harm will result

(iii) Harm must be unjustifiable

(1) Intentionally Killing

(a) Murder = Malice aforethought -intent to kill

(b) Voluntary Manslaughter= Intent to Kill - adequate provocation

(2) Unintentional Killing

(a) Murder-Malice Aforethought- gross recklessness

(1) reckless means subjective awareness

(2) Gross= depraved indifference to human life

(b) Involuntary Manslaughter= Gross Negligence

(i) Does not require subjective awareness of risk of death

Murder conviction with mens rea of gross recklessness (aka Implied Malice)?

(1) Must be aware

(2) Gravity of the risk is greater

(3) Justification is lower

(4) Defendant must reasonably anticipate that death is likely

What mens rea do you have to have for Manslaughter? 

(MPC 210.2(1)(a))

What constitutes “awareness of risk”?

When conduct is such a gross deviation from reasonable standard of care, jury may infer that defendant was aware.

Exception for lack of awareness: subjective awareness is not required id lack of awareness is attributive solely to voluntary drunkenness.

MPC 2.08(2) Drunkenness

Felony Murder

If killing occurs during the commission of a felony, this becomes another form of malice aforethought

Do you still have to prove felony caused the death in Felony Murder?

Justification for Felony-Murder Rule

Deterring certain conduct during the commission of a felony (violent conduct that’s dangerous to human life)- not to deter the felonies themselves 

*But rule seems unfair because imposes liability without fault

MPC doesn’t adopt the felony murder rule, but due to the widespread continuing use of the rule, MPC replaced the rule with a rebuttable presumption, that if you’re committing one of the felonies enumerates in statutes, then we can assume that you had the gross recklessness required to establish the mens rea of murder

*Burden shift- places burden on D to prove that he did not act with gross recklessness

Misdemeanor-Manslaughter Rule

Felony has to be inherently dangerous

Why look at the crime in the abstract and not as it was committed?

(1) Prove inherently dangerous in the abstract

(2) As-committed, the felony was inherently dangerous b/c it created a foreseeable risk of death

(3) As-Committed, the felony was inherently dangerous b/c it created a high probability of death

Merger Doctrine

What’s wrong with the Merger Doctrine rule?

(Ex. Assault with Deadly weapon)

If you don’t follow merger doctrine when you commit a deadly assault the D is guilty of murder. (felony-murder) Every assault with a deadly weapon would be a felony-murder. 

Burton test (Merger doctrine)

If the felony has an independent, felonious purpose, then it does not merge and thus becomes the predicate for felony-murder.

*Problem with the test- a felon who acts with a purpose other than specifically to inflict injury on someone is subject to greater liability for an act resulting in death than someone who actually intends to kill the victim.

Ireland Test

The predicate felony cannot be one that would elevate all felonious assaults to murder or otherwise subvert the legislative intent; ad hoc determination-- in ever case we’ll look at the felony involved and ask; if we make this a separate felony so that there can be a felony-murder charge will it throw out the grading scheme for murder.

*It’s a fairly universal rule that assault with a deadly weapon will merge; but when it comes to other felonies it’s a lot less clear (merger muddle); the more a felony is like assault, the more likely it is going to merge

What is the basic requirement of felony-murder rule?

Three situations where Killing in furtherance requirement becomes problematic

(1) Killings After the Felony has Ended Felony continues to be perpetrated during the defendant’s effort to escape (Guilty)

(2) Killings By felons but not in Furtherance- If co-felon goes off on a “frolic on his own” the other felons are not guilty of felony murder

(3) Killings By Non-Felons- Co-felons had a joint plan, therefore each is responsible for the foreseeable crimes of the other that were committed in furtherance of that joint plan. (Guilty)

Agent Theory

(Felony Murder)

An act that is foreseeable, committed in furtherance of the joint plan, and done by an accomplice/co-conspirator… then each one is responsible for the killings of the other done in furtherance of the felony. 

*Limits the felony murder liability

Proximate Cause

felony murder

Was death a direct result of the felony; central issue is whether the killing, no matter by whose hand, is within the foreseeable risk of the felony. Must be sufficiently close relationship between the felony and the death

*This does not limit the felony murder liability.

Elements of Causation

(1) Factual Cause: “But-for” causation; the harm would not have occurred in the absence of the D’s act

(2) Proximate Cause: the act must bear a sufficiently close relationship to the resulting harm (foreseeability is the test for proximate cause)

(3) When causation is a required element of a crime, both types of causation must be proven beyond a reasonable doubt.

Sufficiently Direct Cause of Death?

Causation (defendant’s act (actus reus))

(1) Put victim in vulnerable position

(2) and continued to operate to make escape difficult

Doctrine of Transferred Intent

Can Subsequent Human Actions break the chain of Causation?

Voluntary action of a responsible human actor breaks the chain of causation, even if the action was foreseeable.

(If the human actor is irresponsible it will NOT break the chain of causation.)

MPC 210.5

(Criminal Homicide directed to suicide)

Assumption of Free Will

Can an involuntary act help the chain of causation?

What is criminal negligence?

Victim’s death was within the risk that he was aware of or should’ve been aware of

Causation for felony murder

MPC 2.03(4)- (strict liability causation)- you need to find that the actual result is a probable result of the actor’s conduct.

Why do we punish Attempt? (Justification for punishment)

(1) Deterrence is NOT a strong argument for punishing attempt bc punishment for attempt is held the punishment for the completed crime so you really don’t get any extra deterrence.

(2) Retribution- if you attempt to do something you have a morally blameworthy mental state. 

Why do we punish attempt less severely than the completed crime?

(1) because there was no actual harm done

(2) It provides an incentive to stop (if attempt was punished the same as regular crime, then someone having second thought would just go through with it-- at that point you have nothing to lose)

(3) If you voluntarily abandon your attempt, then you’ll get a penalty reduction

Mens Rea for Attempt

Actus reus for Attempt

Need some act that makes clear actor’s intent

Higher mens rea threshold than for the completed crime

Common Law Rule for Attempt

Requires specific intent to commit the target crime.

(Completed crime does not have to require specific intent)

Why require specific intent for Attempt?

(1) To attempt something is to try to accomplish it, and one cannot be said to try is one does not intend to succeed.

(2) One who intends to commit a criminal harm does a greater moral wrong than one who does so recklessly or negligently

(3) The importance of the intent is not to show that the act was wicked by that it was likely to be followed by hurtful consequences.

Can you have an attempted felony-murder?

No such thing as an attempted felony murder because for an attempt conviction you have to intend the result and not just the underlying conduct.

(ex. if you went to rob a bank w/toy gun, and if someone died of a heart attack in the bank, you would’ve been convicted of felony-murder- but if no one dies, you can’t be convicted of attempted felony-murder- there was no intent.)

Mens rea for Attendant Circumstances (in Attempt)

The mens re required with regard to attendant circumstance is the same for attempt as for the crime itself.

(ex. Statutory rape-strict liability for the crime as well as for the attempt) 

No. Mere preparation are acts which are too remote to constitute a criminal attempt 

Locus Penitentiae

an opportunity to repent, change one’s mind

Unequivocal Intent Standard

Some act toward committing the crime and proof beyond a reasonable doubt that the defendant intended the crime

(ex. if person buying a gun told the storeowner that he was going to kill so-and-so)

Problem with Unequivocal Intent approach?

Last Step Test (attempt)

Dangerous Proximity Test (Attempt)

The act has to be dangerously proximate to success- has to come very near the accomplishment of the crime

(this is the rule in most jurisdictions)

(1) Crime prevention- the test puts the act of attempt so close to the final act that good police work (like in Rizzo) is hampered- police don’t want to arrest early because person would then be let off the hook

(no incentive for police to stop criminals before they go too fast)

(2) Locus Penitentiae- the test puts the act of attempt too early, thus not allowing defendant time to be absolved of he changes his mind

Abandonment for attempt?

Yes. This defense is available if the defendant truly abandons his attempt-- you have to voluntarily and completely reunicate your criminal purpose (MPC 5.01(4))

*Soem courts recognize this defense others do not.

How is Attempt defined in the MPC?

To be an attempt act must be a substantial step towards the commission of the crime

(a substantial step is strongly corroborative of the actor’s criminal purpose)

MPC/ Substantial Step Standard

(what must be proven?)

(1) First have to prove mens rea (intent)

(2) Then have to prove actus reus (substantial step)

(3) Finally have to prove that the substantial step corroborates the criminal intent 

Problem with the MPC substantial step test?

It requires that you get so close to the commission of the crime that good police work is hampered.

Solitication

Allows for the conviction of a defendant for an attempt-like crime in situation where the person he solicits does not get close enough for there to actually be an attempt; you can hold the solicitor responsible for the crime of solicitation (MPC 5.02) 

*Punishment - often much lower for solicitation than for attempt

Solicitation Rule

Impossibility (defenses)

(1) Factual Impossibility- NOT a defense to criminal attempt 

(2) Legal Impossibility- usually is defense to attempt; two kinds of legal impossibility

(a) Pure Legal Impossibility- the criminal law does not prohibit the defendant’s conduct nor the result he sought to achieve

(b) Hybrid Legal Impossibility- D’s goal is illegal, but the commission of the offense is impossible due to a factual mistake regarding the legal status of some factor relevant to the criminality of the D’s conduct.

Factual Impossibility

(1) D’s goal is to commit a crime, but he fails to consummate the crime because of a factual circumstance either unknown to him or beyond his control.

(2) Quintessential example: pickpocketing an empty

(3) Reasons to hold such defendants guilty of attempt:

(a) Had the mens rea for the crime (blameworthiness)

(b) What they wanted to do was a crime

(c ) Did the actus reus of the crime 

Legal Impossibility

(1) Pure Legal Impossibility- the criminal law does not prohibit it the defendant’s conduct nor the result he sought to achieve

Ex. Bootlegger was selling during prohibition, and then prohibition was repealed but he though he was still breaking the law-- cannot be guilty simply bc he thought he was breaking the law; criminal law does not punish bad thoughts

Hybrid Legal Impossibility (Defense for Attempt)

D’s goal is illegal, but crime is impossible due to a factual mistake regarding the legal status of some factor relevant to the D’s conduct.

EX. D tries to bribe a juror who it turns out is not a juror; D’s goal is illegal but he made a factual mistake; the mistake he made about whether the person was a juror or not relates to the legal status that’s directly relevant to what makes the defendant’s conduct criminal (the status of the juror-legal status- is significant)

Are all the Impossibility’s a defense for Attempt under the MPC?

When is Mitigation available?

Complicity

The person who does not personally cause criminal harm may be held accountable for criminal conduct of somebody else if he associated himself with that person in a particular way.

(two kinds of complicity: accomplice liability & conspiracy)

Accomplice Liability

accountable for the conduct of another person if you assist or encourage that other person to commit a crime; accomplice liability is derivative- accomplice is responsible only for crimes actually committed by the principal.

Principal

(Accomplice Liability)

Accomplice

(Complicity)

General Rule for Accomplice Liability

Accessory After the Fact

Actus Reus for Accomplice Liability

(1) accomplice has to have a purposive attitude with regard to the actus reus of the principal (he must intend that the principal commit the act that constitutes the crime)

(2) accomplice has to intend to assist the principal in the act.

Exception: in some jurisdictions, knowledge of principal’s actus reus may be sufficient for major crimes.

Accomplice may need to know attendant circumstance elements of an offense if they materially affect the criminal character of the principal’s act (MPC is silent on this issue)

Result Element for Accomplice Liability

What is an accomplice? (MPC)

Criminal Facilitation

(1) Makes aid without a true purpose a separate crime with a lesser penalty

(2) you have to believe the crime is probable (not clear whether statute requires knowledge or recklessness)

(3) It matters whether or not the crime committed is a felony .

Natural and Probable Consequences Test

Policy behind the Natural and Probable Cause Test

To be an accomplice you need the same mens rea as a principal committing the crime with regard to result element (parity)

*for manslaughter you only have to be grossly negligent

Actus Reus for Accomplice Liability

Actus reus for accomplice doesn’t need to actually cause the crime, but it has to in fact assist/contribute in some way for the principal to commit the crime. 

*Under common law, no liability for an attempt to aid (ex. if person speaks words of encouragement to another but the other person is deaf)

*But MPC includes liability for attempts to aid- 2.06(3)(a)(ii)

Is Causation required for Accomplice Liability? 

Complicity by Omission

Comparative Liability common law rule and MPC?

Innocent Agent Doctrine

(MPC 2.06(2)(a)

Entrapment Defense 

(Comparative Liability)

(1) Excuse defense (inducement by the gov’t of a D who is not predisposed to commit the offense)

(2) D may have a defense of entrapment but only when the feigned accomplice is a government agent who improperly induces the defendant’s criminal activity

Common Law Rule of Comparative Liability

Accomplice cannot be convicted of a greater degree offense that did not occur even if he had the mens rea for the greater offense. 

* Contrary approach under MPC says can hold accomplice guilty of a different offense (high or lower)

What are the situations where there is no accomplice liability?

(1) When the person is a victim of crime

(2) If conduct is inevitably incident to the commission of the offense (ex. person who buys drugs cannot be guilt as an accomplice for the sale of drugs)

(3) Abandonment defense- D terminates complicity prior to the commission of the offense, but also has to either warn the police or deprive his act of assistance of it’s effectiveness, or otherwise make some kind of effort to prevent the commission of the offense (if you don’t do any of these things, it’s too late and you’re already an accomplice)

Conspiracy 

MPC 1.07(1)(b)

Would usually bar a conviction separately for the conspiracy and for the object crime.

* The code does allow double punishment if the conspiracy has other object crimes; you can be convicted and separately punished for the object crime you actually committed and the conspiracy to commit a broader range of crimes. 

Prosecution in Conspiracy

Actus Reus of Conspiracy requires...

Depends on jurisdiction...

(1) Some have overt act requirement- some ovart act towards commission of the actual crime is required; doesn’t have to committed by each defendant, an act by any co-conspirator will suffice

(2) Some say overt act is required except for the most serious crimes, where no overt act is required

(3) Some no act is required at all-- the act of agreement is enough

Mens Rea of Conspiracy

(1) Intent to agree

(can’t agree by accident)

(2) Intend the object crime

(in some cases, knowledge may be sufficient)

Is knowledge enough for conspiracy conviction? 

Knowledge may be sufficient for conspiracy liability if the object crime is a felony (but this is not a decided issue; it depends on the felony)

*Why? bc when you’re dealing with a serious felony, you may have a duty to disassociate yourself from the commission of the crime.

(1) if the D had a stake in the venture

(2) If the D provided goods or services for which there is no lawful use

(3) If the volume of business with the buyer is grossly disproportionate to any legitimate demand

(4) If sales for illegal use of amount to a high proportion of the D’s total business

(1) Act has to be within the scope of the conspiracy

(2) Crime must be in furtherance of the conspiracy

(3) Has to be reasonably foreseeable as a necessary or natural consequence of the conspiracy

*If there was an agreement and all 3 Pinkerton elements were satisfied, conspirator can be held liable for crime committed by co-conspirator.

(1) Actus Reus- accomplice liability requires an actual act on the D’s part that actually helps the principal; that’s not required for Pinkerton liability

(2) Mens rea (for the substantive offense)- for accomplice liability you need to have a purpose that principal commit the crime, but for conspiracy liability it’s enough if the crime was reasonably foreseeable (it’s kind f negligence level mens rea)

(3) Exception: Luparello standard- would not fall under conspiracy liability bc the killing was not in furtherance of Luparello’s purpose. 

DP was held liable for criminal acts committed by his brother Walter while Daniel was in jail.

Court’s justification: 

(1) As long as the conspiracy continues, the partners act for each other in carrying it forward

(2) So if any one actor is acting to carry it forward, the others are liable

(3) As long as the enterprise exists, the partners are responsible for the acts in furtherance of the enterprise.

Justifications for Exculpation 

Self-Defense

(Exculpation)

Common law elements of self-defense:

(1) There has to be an actual or apparent threat of force

(2) Threat has to be unlawful

(3)Threat has to be imminent

(4) The response has to be necessary

(a) there has to be a subjective belief that the response is necessary

(b) That belief has to be objectively reasonable

People v. Goetz

(self-defense)

Court held that D’s belief that force was necessary must be objectively reasonable (not completely subjective standard)

*Reasoning:

(1) Policy: if standard was totally subjective, then no matter how bizarre the D’s belief was, he would be justified in killing someone.

(2) MPC does not have reasonable in its version so the ct added it.

(3) Objective component was an element of the common law standard

Why was MPC written with a wholly subjective standard?

(1) if you’re talking about an average person, unless they’re crazy then you don’t know what is reasonable in a frightening situation b/c you’re not there and you can’t second guess them.

(2) Any reaction to a perceived threat is reasonable by definition.

General Rule for self-defense?

What is the common law rule of Retreat?

You had to retreat if it was possible to do so safely, bc it wasn’t necessary to use force if it was possible to retreat.

*Exception: Man’s home is his castle; you don’t have to retreat in your own home.

*Exception to exception: You do have to retreat if your attacker also lives in the home.

*Many states do not require retreat

You lose your right of self-defense if you are the intial aggressor, there is no necessity if you start the fight-- you can’t claim self-defense if you purposely provoked someone to attack you with intent of using deadly force in return (MPC 3.04(2)(b)(i)

*Exception: if you’re the initial aggressor and you start with non-deadly force, but in the course of the fight the other person comes back at you with deadly force, the victim then becomes the initial aggressor as far as deadly force goes for self-defense purposes. 

What is considered an EXCUSE?

Elements of Duress

(Excuse)

(1) threat or use of unlawful force/injury against a person (not necessarily the D)

(2) Coercion

(3) Reasonable person in D’s situation wouldn’t have been able to resist the threat 

(1) necessity applies only when the threat that made you commit the crime comes from a natural event.

(2) Duress applies when the threat comes from a person.

(3) In such jurisdictions, duress is a justification-- but only available when your choice of committing the crime was choosing the lesser evil.

MPC 2.09

(Duress Exception)