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INCHOATE CRIMES
- Specific Intent crimes
category solicitation conspiracy Attempt
common law
Of Crime commit an offense 2. Engage in conduct that is crime, or conduct that would constitute
2. Or request other person to do attempt or solicitation to commit such the crime
some act that would establish the crime 2. Acts w/ a purpose to cause
other person’s complicity in the 3. Agrees to aid person(s) in planning or the criminal result
offense. commission of crime, or attempt or 3. Or purposely does an act
3. W/ purpose of promoting or solicitation to commit such crime. constituting a substantial step
facilitating commission of 4. Overt act is needed. towards the commission of the
solicited offense offense.
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Elements Chart and Outline
INCHOATE CRIMES
Test:
MPC – “Substantial Step Tests”
INCHOATE CRIMES
Notes Mere solicitation – not an attempt - Terminates when:
Notes
THEFT
HOMICIDE
Mens Rea (MR) Intent, state of mind Homicide killing of a human being by another (AR)
Actus Reus (AR) The act: homicide – voluntary affirmative Justifiable Homicide Killing of someone that is sanctioned by
act of killing – or – failure to act (where there is a duty) that the law (Examples: war, executions, self-defense)
causes death. Excusable Homicide Homicide that is not approved, but it is
Malam in se A crime that is inherently wrong forgiven. (Example: infancy (?), involuntary intoxication (s/o
Malam prohibitum A crime that is wrong b/c the law said slipped a drug into your drink, insanity)
so.
Crime Common Law California - § 189 MPC
1˚
Murder
HOMICIDE
of a deadly weapon authorizes a - No need for D to “maturely and
permissive inference of intent to kill. A meaningfully” reflect upon gravity
deadly weapon is any instrument – or in of act.
some limited circumstances, any part of - Anderson Factors:
the body – used in a manner calculated or 1. Planning
likely to produce death or serious bodily 2. Motive (prior relationship)
injury. 3. Manner (preconceived
Ex.: Firing bullet into crowed room; design)
champion boxer fighting beats up a tavern a. Weapon of Opportunity
owner, speedboat into crowd of swimmers. (usually not 1˚)
b. Suggests that there had
been no prior thought,
killer used what was
nearby
(If YES to a/b not 1˚)
Deliberation: “Consideration
and reflection upon the
preconceived design to kill; giving
it second thought.”
AR Inflicting death upon another person Inflicting death upon another Homicide.
person
Also: homicide using one of the
following methods:
Poison
Explosive Device
Torture
Lying in Wait
Arson
Destructive Device
D (No degrees under common law!!) 2˚ Spontaneous, hot-blooded, (No degrees in the MPC!)
impulsive
No Premeditation/deliberation
- “Abandoned/malignant heart
All other murders not under
1˚; other un-enumerated felonies
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Elements Chart and Outline
HOMICIDE
that are inherently dangerous
MR No premeditation/deliberation
Four ways to prove malice
1. Intent to kill
2. Intent to commit s/b/h
3. Extreme recklessness
4. Felony murder
AR Anderson factors:
3) Was there a weapon of
opportunity present – shows that
person did not have time to plan
out murder w/ proper weapon
(ex. Golf club)
D - Homicide during the commission of an - Homicide during the commission - Homicide during the
enumerated crime: of an enumerated crime: commission of an enumerated
Mayhem Burglary crime:
Robbery Arson Burglary
Rape Rape/Sexual Assault Rape
Arson 1˚ Carjacking (§215) Robbery
Felony Murder
HOMICIDE
D RECKLESS MANSLAUGHTER
Voluntary Manslaughter
HOMICIDE
P Heat of Passion Doctrine Heat of Passion Doctrine Extreme Emotional
1) Must have been such that it would arose (See under common law) Disturbance (EED): MPC
sudden + intense passion in the mind of 210.3
an ordinary person such as to cause him to Adequate provocation as Homicide that would
lose control seen by the reasonable person otherwise be murder is
2) D must have been provoked (Based on the MPC) – but instead committed under influence of
3) No sufficient cooling time of subjective, is objective – would extreme mental or emotional
4) D must have cooled off a reasonable person under the disturbance for which there is
5) Provocation must have acts commit the homicide under reasonable excuse.
caused the killing. the heat of passion? Or, committed recklessly.
Provocation: mere words are not enough Verbal provocation may be Look at POV of the D’s
sufficient to cause extreme situation under the
Adequate provocation: distress circumstances as HE believes
- Finding one’s spouse in bed them to be.
- Mutual combat
- Assault and battery
- Injury to abuse to a relative
- Illegal arrest
- If words are accompanied w/ intent to
injure.
Imperfect Self-Defense:
- D has an honest but unreasonable belief
in the necessity to defend oneself against
imminent death.
Becomes involuntary manslaughter if:
1. Honestly believed needed deadly force
2. Honestly believed reasonable force used
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Elements Chart and Outline
HOMICIDE
D Unintentional killing w/o malice that Unlawful act, not amounting to MPC renames this as
results from failure to appreciate felony, or lawful act which might NEGLIGENT HOMICIDE
substantial and unjustifiable risk of harm. produce death in an unlawful When it is committed
I. Criminal Negligence manner, w/out due caution or negligently.
- Criminally negligent or reckless crime circumstances.
(Objective awareness of the risk –
deviation from what reasonable person Vehicular Manslaughter
would do) Driving car in lawful act which
Involuntary Manslaughter
CAUSATION
Actus reus of a crime is composed of 1) a voluntary at 2) that causes 3) social harm. Causation is an implicit
element of all crimes. Causation may be proximate or actual.
Theory Definition Example
But-For Causation D’s conduct must be the cause-in-fact of the Regina v. Martin Dyos (scuffle at party, dude gets rock
result; i.e. the result would not have occurred to the head)
“but-for” D’s conduct
R. v. Benge (prisoner as foreman working on R.R.)
But for D’s reading the timechart wrong, RR tracks
would have been laid down despite everyone else’s
contributory negligence.
If an actor’s negligence is the primary cause of a
wrong, then it would not be material that others, also
by their negligence, contributed to cause it.
Violent Acts Where the death was not due to a corporal blow Hubbard v. Commonwealth (jailer’s heart attack)
or injury to some hostile demonstration or overt
act directed toward the person of the decedent,
there is no criminal liability unless death or
serious bodily harm was the probable and
natural consequence of an indirect, unlawful act
of the accused.
CAUSATION
by the D’s act.
Duties The law recognizes that some other some
circumstances, the omission of a duty owed by
one individual to another, where such omission
results in the death of the one to whom the duty
is owning, will make the other chargeable w/
manslaughter.
Must be a duty imposed by law
(relationships) or by contract.
Duties of mere moral obligation are not
binding by law.
If a person who has a relationship w/
another, and knows the person to be in peril,
willfully and negligently fails to make such
reasonable and proper efforts to rescue him as
he might have done, w/o jeopardizing his own
life, or the lives of others, he is guilty of
manslaughter by the reason of his omission of
duty, the other person dies.
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Elements Chart and Outline
DEFENSES
Defense Common Law California MPC
D Mental disease/defect recognized by the DSM
Insanity
Need: Need:
(Justification)
1. Choice of evils 1) Can use for homicide if fewer
2. No alternatives people would die.
3. Immediate threat 2) Harm avoided is greater than
4. Defendant chooses the lesser the harm done.
evil 3) No specific prohibition by
5. Can’t have created the laws.
necessity. 4) Causal connection to the
Elements [6. Civil disobedience] prevention of the greater harm
[5) Can’t have acted recklessly
or negligently – D must not have
contributed to the necessity]
COMPLICITY
Aiding: Physical assistance, Information Abetting: As simple as verbal encouragement,
causing a person to act
Common Law Modern Law/California MPC
Definition Designed around an analysis of Focus is on who is participating A person is an accomplice of another
where you are at the time of the to assist the crime. person in the commission of an offense
crime (where is everyone at the if, w/ the purpose of promoting or
time of the crime)? Knowledge + Act + Criminal facilitating the commission of the
Intent offense, (see: AR)
Actus Reus - Aid or encouragement to the Act - He solicits the other person to commit
person(s) committing the crime. it;
- Inaction in an activity can be - Or aids or agrees or attempts to aid
part of the crime the other person in planning or
(Ostrich rule if a person committing it,
willfully tries to avoid gaining - Or (having a legal duty to prevent the
knowledge of a crime – then crime) fails to make the proper effort to
almost the same as knowing prevent it.
something is going to happen.)
Mens Rea Share the specific intent or Criminal Intent + Knowledge Intent to commit the crime
purpose of the principal for the
crime to occur.
Classifications Principal 1˚ Everyone is classified as a Depends: see who is doing what.
Principal 2˚ principal
Accessory-before-the-fact Person is not an accomplice if they are:
Accessory-after-the-fact a) Victim of offense
b) Offense is so defined that his
conduct is incident to the commission
c) Terminates his complicity prior to the
offense occurring
Vicarious If the accomplice aids in the
Liability commission of an offense, he is liable –
see how far the person has aided in
that particular aspect of the crime.
Miscellaneous Dupes: person who gets Perpetrator by the means of using an
talked into committing the crime innocent person – MPC looks to see
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Elements Chart and Outline
COMPLICITY
– true dupe doesn’t know he’s what one has done and holds them
committing a crime – he does accountable.
the act, but there is no mens
rea.
- Evaluate: do they know?!
a. pertaining to possession, “possessor knowingly procured/received the thing…or was aware of his control
thereof…”
b. “willful blindness” – overlooking some things that would reasonably lead to the questioning of the legality of an
act
i. can substitute for knowledge – Valot (1971)
3. requires dominion and control, not ownership
4. falls under a branch of “intent” (general intent)
a. accepted way to prosecute one’s control of an illegal object/substance
E. Omission (Failure to Act) – failure to act or omission of duty
1. may prosecute in absence of an act
2. policy and culture play a big role in this area
a. usually doesn’t play a big role in criminal law as it does in torts
3. Traditional status of relationship can raise an obligation to duty (can qualify for prosecution for failure to act); MPC §
2.01(3)
a. Status/relationship (e.g. parent/child, spouse, etc.)
i. Jones v. U.S.: baby’s care was not Jones’ responsibility; she was not natural mother nor did she have
contract to render care – had no duty
(a) Ct reversed her trial court conviction
(i) duty must be a legal duty, not just moral obligation. CB 122
b. by contract (agreeing to take on some responsibility)
c. statute – duty imposed by legislature
d. peril rescue/ “seclusion”: running off others’s help; failure to complete the task can question if actor’s omission is
actionable because the partial action could have convinced other potential caregivers that help was already being
administered.
2. does not classify elements; instead actively attempts to determine material element of each offense into three categories
(i.e. does not classify into “general” or “specific” intent
a. conduct/act
b. Attendant circumstances – actions that can be taken within context, then might not have a crime
c. Results – if certain results are not achieved, then may not be a crime
D. “General intent” vs. “Specific intent”
1. distinction ambiguous; definition of the terms may change depending on situation
2. definition of a crime must serve as a constant
3. GENERAL INTENT
a. In general, only concerned with the act, not result
i. Having knowledge of awareness of the nature of the voluntary act
(a) Rape is a general intent crime
b. easier to convict for general intent crimes
4. SPECIFIC INTENT
a. Aiming to achieve some sort of purpose/result; working toward achieving some specific outcome
intoxication is a b. Addresses a more sophisticated intent to achieve a specific result
defense to specific i. Attempted crimes require the highest level of mens rea to be proven
intent crimes but not
to general intent (a) “attempted rape” is a specific intent crime
crimes 5. Four different interpretations of distinction between “specific” and “general” intent. CB 183-184
a. “specific intent”: refers to mental element of any crime; “general intent” refers to broader question of defendant’s
blameworthiness/guilt
b. “specific intent”: unexecuted intent to do some further act/ accomplish some further result; “general intent”: intent
to do the proscribed act (actual crime)
i. under this version, specific intent crimes often contain a “lesser included offense.”
c. “specific intent”: must prove the defendant intended a particular result, or intended that his action have a
particular legal consequence; “general result”: presumes that actor intends the “natural” and “probably” results and
the “legal consequences” of his conduct
d. “specific intent”: purpose/desire; “general intent”: knowledge/recklessness/negligence
E. MPC established a four word vocabulary to describe every mental state. CB 212; MPC § 2.02
1. generally falling under specific intent:
a. purposely: the actor’s purpose of taking action
i. conscious object to engage in conduct of that nature or to cause such result
ii. actor is aware of the existence of such circumstances or believes/hopes that they exist
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Elements Chart and Outline
b. knowingly: an awareness of circumstances; practically certain that his conduct will produce a certain result.
“callousness” vs. “disregard for the results”
i. he is aware that the conduct is of that nature or that such circumstances exist
ii. if conduct involves a result, awareness that it is practically certain that the conduct will cause such a result.
2. falling under general intent:
a. recklessly: aware of the risk, but consciously reduces the risk; has rationalized taking the risk, disregarding
something analytically known
i. consciously disregards a substantial and unjustifiable risk
ii. the disregard of risk involves gross deviation from std of conduct of a reasonable person
b. negligently: should be aware of substantial unjustifiable risk; clueless but dangerous nonetheless
i. failure to perceive the risk must involve a gross deviation from reasonable std of care.
F. Strict Liability
1. liability imposed for faultless conduct
a. narrow distinction between negligence and strict liability focuses on whether the defendant’s awareness is a failure
to meet the objective standard of the reasonable person (CB 218)
2. by having consequences that are unpleasant, then people will try very hard to take necessary precautions (higher level of
responsibility)
a. largely regulatory in modern times
3. if society creates regulations, without mens rea then offense are not crimes but violations
4. does not let the mental state of the defendant to be applied – just show that the act was done
G. Mistake of Fact
1. general intent crime
a. has awareness of the nature of the voluntary act
i. People v. Bray: defendant knew the law, but didn’t think that it applied to him because of the ambiguity
surrounding his status as a felon
(a) A reasonable mistake of fact can be accredited (his status as a convicted felon)
(i) There was no information to contradict defendant’s conclusion that he was not a convicted
felon (was granted rights and privileges not afforded to felons; filled out official forms and
indicated he was not sure of his status for years.)
ii. Long v. State: defendant based his decision to remarry before his first was annulled based on erroneous
information given to him by his attorney.
(a) Actually checked with attorney to confirm that his first marriage was legally null.
(i) Complaint was that he was deprived of his right to present evidence that he had consulted
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Elements Chart and Outline
his attorney.
b. Relevant defenses: MPC § 2.04 “Ignorance or Mistake”
H. Mistake of Law
1. specific intent crime
a. shows that actor had intent to commit the act, but was simply not aware of the specific crime
i. ignorance of the law is not accepted when the have the mental state to commit the crime but not of the
knowledge the degree of the offense
(a) ignorance can substitute the for the lack of mental state to commit the crime
b. People v. Baker: defendant Baker knew that his acts were wrong but did not know the degree of the offense (from
civil to criminal)
i. knew all the important elements of his actions; at least blameworthy.
c. State v. Cameron: though she may have been intoxicated when she committed aggravated assault, a “person acts
purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct
of that nature or to cause such a result” (N.J.S.A. 2C:2-2(b)(1)).
i. Cameron’s purposeful conduct was getting drunk specific intent
IV. BURGLARY – specific intent crime, don’t need actus reus to comit
A. Defined: MPC § 221.1(1)
B. Defined: CA Penal Code § 459
C. Common Law: The trespassory breaking and entering of a dwelling house of another at night with the intent to commit a felony
therein.
1. aims to prevent a precondition of the crime (entering the dwelling in order to commit a crime inside)
2. a crime of habitation, not ownership (Peck)
3. a specific intent crime
a. breaking and entering with the specific intent to commit a felony
i. People v. Tackett: by throwing the coat over victim’s head while he attacked her sufficient to show that he
manifested the intent before entering the residence
ii. State v. Peck: though defendant might have had ownership of the house, restraining order issued by court
revoked his right to be on property. He violated the court order, entered property and committed assault on
nephew.
4. requires less action than many attempted crimes; focuses on the intent of gaining unlawful entry
a. focuses on mens rea, actus rea not necessary
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Elements Chart and Outline
V. INTENTIONAL HOMICIDE
A. Definition: the unnatural death of a human being
B. originally all homicides were considered as murder, carrying capital punishment
1. manslaughter and lesser degrees of homicide are a modern development
a. all murders have “malice”
i. Malice defined: “an intention to cause, or a willingness to undertake, a serious risk of causing the death of
another…based on an immoral or unworthy aim” (CB 347)
ii. Malice Theory:
(a) an intent to kill/ cause death (formed the intent and took steps to complete it)
(b) an attempt to do serious bodily injury/harm where the victim dies.
(c) extreme recklessness w/respect to the risk of death – a callous indifference to the risk of possible
deadly consequences
(i) not necessarily intent to kill, but conduct was so callous/extremely reckless that occurrence
of death is no surprise
(1) attempt to show a mindset with a disregard for human life engaging in conduct
that someone can spot a possibility of death without care
2. at common law, no distinction of degrees (MPC rejects degrees too)
3. murder and manslaughter have intent element
a. mens rea (intent)is what distinguishes between manslaughter and murder; actus reas look very similar
4. “transferred intent” – the attempt to kill A misses target and ends up killing B; the intention to kill A will transfer to B
when defendant never really intended to kill B
a. a legal fiction
C. Murder
* general def: an unjustified killing manifesting (1) purpose to cause death; or (2) intent to inflict serious bodily harm; or (3) extreme
recklessness with respect to a serious risk of harm to another’s life, where the risky action manifests so unworthy or immoral a
purpose as to suggest callous indifference to human life; or (4) (f-m rule) a willingness to undertake even a very small risk of death
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Elements Chart and Outline
Voluntary Manslaughter
- Provocation: specific categories Cal. Penal Code MPC
* mutual combat - sudden quarrel - doesn’t distinguish “voluntary”
* adultery - heat of passion manslaughter; only “manslaughter”
* battery distinction from murder
* words (w/o violence) NO - EEM
- “cooling” time a big factor - personal situation reasonable
reaction
** recklessly = negligent
homicide (with mens rea)
3. parallels f-m
a. if actor unintentionally causes death while performing unlawful act (not enumerate felony), state can prosecute
under involuntary manslaughter – U.S. v. Walker (CB 475): Δ didn’t have license to carry gun, dropped it when
loaded, gun discharged and killed a bystander.
i. “presumption…of recklessness” (CB 466 n.2) kind of substitutes f-m no surprise that a death resulted
from reckless conduct (high probability of the conduct going awry)
4. characterization of crime depends on jdx
a. Majority: considers the felony in the abstract, including CA (CB 483)
i. must not be an enumerated felony and “inherently dangerous” in the abstract – People v. Patterson:
furnishing cocaine (possibility of overdosing inherent in cocaine use) CB 483.
(a) forget the facts, only important that the action carries a high probability of death (Patterson) (in the
abstract)
(i) considering facts may lead to ‘inexorably to the conclusion that the underlying felony is
exceptionally hazardous’ (CB 484) [CA law]
(b) CA measure “inherently dangerous” in the abstract by judging the probability of death
ii. inherently more complex b/c must develop notion that the felony is inherently dangerous in the abstract
(a) trad’l murder1 is easier to determine (has est’d elements)
b. Minority: some look at the way crime’s commission (CB 485)
i. circumstances of the commission and the offense’s abstract definition used to determine dangerousness –
State v. Chambers: drunks stole a car and killed 4 people; ct said: following “common law felony murder
rule,” a felony can be the basis for 2nd-degree felony murder if done in a sufficiently dangerous way
(a) gives evidence of Δ’s mens rea
G. Two Approaches to Felony-Murder (depending on jdx)
1. Proximate Cause Theory: must establish that the felony was over to avoid f-m
rule, that the death did not occur during the commission of the felony
a. as long as felony in progress, any death that occur will be assigned to the felon (including death of victim/bystander
killed by criminal/police) – People v. Hickman
i. includes “immediate flight” – People v. Gladman (CB 489): ct said that boundaries of “immediate flight” is
unique to each indiv. crime and thus to be determined by the jury
(a) not settled – Franks v. State (CB 490): f-m reversed for want of a causal ‘nexus’ b/w grocery store
robbery, attack on the officer and the child’s death; State v. Colenurg: f-m upheld when Δ killed child
months after he received a stolen car and messed wit the VIN. (CB 491)
b. “Protected Persons” Doctrine – applies to both jdx (proximate and agency)
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Elements Chart and Outline
i. any innocent third party, doesn’t matter who the shooters was as long as innocent
third party is killed will be assigned to felons
ii. victims by police shots assigned to felon
iii. if co-felons die, no one cares.
2. Agency Jurisdiction (CA): death can only be assigned to felons or their agents
– People v. Washington (CB 496), Justice Traynor: “to impose an add’l penalty
for the killing [of co-felon] would discriminate between robbers, not on the basis
of any difference in their own conduct, but solely on the basis of the response by
other that the robber’s conduct happened to induce.”
i. “Provocative Act” Exception for Felony-murder: look for behavior on Δ(s)’s part that would lead victim to
believe that it is “now or never” to resist and make an effort to save life (to use force) – Taylor v. Superior
Court (CB 500)
(a) ‘provocative act’ will get the f-m charge (even if death was caused by non-agent of the crime or for
death of co-felon); negates “Protected Persons Doctrine”
(i) will make co-felons responsible for the acts of other agents (those who make ‘provocative
acts”)
(ii) ‘provocative act’ = implied malice that triggers victim’s survival mode.
(1) in theory, then implied malice murder = murder2, but under Cal. Penal Code § 189,
f-m constitutes 1st-deg. f-m (murder1)
(iii) if f-m unavailable, analyze “provocative act” under a malice theory
H. Limitations on the Use of Felony-murder
1. Δ must be guilty of the predicate felony
2. in CA, only enumerated felonies get murder1
a. MPC: there is a presumption of recklessness necessary for murder when committing on of the enumerated felonies
3. predicate felony must be independent of the homicidal act or collateral to homicide (e.g. cannot have continuous action
toward homicide) – People v. Moran (CB 501)
a. underlying felony must be independent of the killing or else merges with the homicide (CB 504)
i. if have continuous action toward the homicide, then have either murder2 or voluntary manslaughter, not f-m
(a) predicate felony’s objective cannot be to produce death
b. CA’s expressed “merger” rule: from People v. Ireland (CB 504): felonious assault could not be the basis for felony
murder b/c it is ‘included in fact’ within the homicide.
4. “inherently dangerous” analysis for 2nd degree felony murder (manslaughter-murder) – (equivalent to “foreseeability of
death” for f-m)
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Elements Chart and Outline
2. Foreseeability
a. requires a connection b/w actor’s culpable mental state and the result
i. injury resulting from reckless action must be one he “foresaw”
ii. often referred to as “proximate causation”
(a) victim’s death occurs in a manner not intended or anticipated by the Δ
(1) “All Natural and Probable Results” are proximately caused – Stephenson v. State: Δ
kidnapping of a girl led her to commit suicide
3. Intervening Events
a. Intervening actions
i. premised on free will individuals were the exclusive cause of their actions – Commonwealth v. Root (CB
308): deceased drove into oncoming traffic in an effort to beat Δ in a race on the highway (ct. rejects tort law
approach to “proximate cause” (CB 309)
(a) Cal. Penal Code § 408 Causation: Responsibility for Causing a Result: puts on notice that one may
be held responsible for the reaction of another if the reaction is predictable
ii. most cts view a lvl of medical malpractice as foreseeable with a likely-fatal injury (causation still valid)
(a) no causation if gross negligence or intentional mistreatment (e.g. superficial wound worsened by
lvl of negligence
(i) supervening cause
b. scope of time
i. Common Law: “year and a day” rule – if victim dies within the time limit, death can be traced back to Δ’s
actions
(a) CA has limitation of causation of 3 yrs.
iii. most jdx look to whether patient/person under care was under life-threatening situation anyways
c. CL trad’ly absolved Δ of causal responsibility if an “intervening” event “broke the chain of causation”
i. must be necessary for the harmful result
ii. subsequent to Δ’s act, and…
iii. not caused by Δ’s act
d. inconsistent with “foreseeability” standard foreseeable intervening events do not break the chain of causation
e. intervening acts do not necessarily sever the result from the actor and excuse responsibility – U.S. v. Hamilton (CB
317): ct ruled insufficient evidence that deceased would’ve survived if the tubes had remained (deceased had pulled
them out) therefore Δ guilty of homicide (manslaughter).
4. Duties
a. causal responsibility limited to those who have a duty to act resulting from:
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Elements Chart and Outline
i. statute
ii. status
iii. contract
iv. undertaking
IX. ACCOMPLICE LIABILITY – parties to crime; requires @ min. proof that another person committed an offense
A. accomplices held liable for aiding or encouraging the offense of another
1. complicity depends on the occurrence of another offense, whether or not another is punished for that offense
a. is a doctrine, not crime no “crime” of being an accessory
focus on mens b. a theory of how indiv. may be charged for a crime that may have been committed by someone else
rea/intention of i. liability for offense flows from accomplice’s relationship to the perpetrator (CB 822)
rendering aid; (a) common law view: one became responsible for another’s crime by joining in it rather than causing
NOT the it. (consents to a crime by aiding or encouraging the principal)
magnitude of
participation
c. aider&abettor share the principal’s criminal intent (mens rea) State v. Ochoa (CB 830) – intent and purpose to
commit the crime (MPC); U.S. v. Giovanetti (CB 857): aider and abettor must know that he is assisting an illegal
activity; State v. Etzweiler (CB 866): no criminal intent to cause accident, though knows that his friend was drunk
i. common defense is to challenge the requisite mens rea (“ I didn’t do anything…I didn’t practice the
necessary mens rea of the acts.”)
(a) can still be held vicariously liable
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Elements Chart and Outline
(i) General Rule: if a perpetrator’s conduct does not fulfill the act element of the offense, there
is no offense and so no complicity
crime
(d) abnormal step: crosses a pt. where a normal person, who could have been playing with the idea,
would not have crossed
(i) crossing the point indicates actor’s intention to commit the crime
(e) res ipsa (unequivocality test): the acts are unambiguous; nothing equivocal, the intent is apparent
Smith likes MPC approach ii. MPC test – doesn’t gauge how far actor has come to completing crime
to Attempt; need to know (a) examines a “substantial step”
for the essay portion
(i) distance actor has traveled whether or not is a substantial step in direction of
accomplishment of the target crime
(1) no requirement for the Δ to come close to completion
(b) does not recognize “legal” and “factual” impossibility
(i) the distinction is a fallacy
(ii) whole point of attempt is culpable mens rea
(1) punish those who are willing to break the law/have the will to engage in behavior
and try accomplish something that is dangerous to society
(b) MPC § 5.01 Criminal Attempt
(i) allows prosecution to charge attempt earlier, before an actual material attempt takes place
(ii) allows renunciation of the decision to do the crime; abandon the attempt even after attempt
has been completed - § 5.01(4)
(1) under modern law, trad’l approach does not allow abandonment of attempt
5. attempted crimes merge into complete crimes
a. Burglary does not merge
i. if successful, get burglary + (felony)
b. once crime completed, cannot renounce (can’t go back and return something you stole)
C. SOLICITATION
1. actor with specific intent acted on trying to induce somebody to join in the crime
a. no requirement that the person solicited agrees or accepts
i. crime is complete once solicitation is made
2. solicitation merges with the actual crime
a. may become conspirator or accomplice to the substantive crime
3. many jdx do not have a universal solicitation statute
a. usually very specific crimes are restricted under a solicitation statute (e.g. murder, treason most common)
4. usually solicitation cannot be abandoned
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(i) conspirator should be measured by same std. of legal accountability for conduct applicable
remember this to any other indiv (CB 939)
for the test d. adopts unilateral approach: intent to commit crime is enough mens rea to hold actor accountable regarless of the
(MPC jdx) intent of co-conspirators
4. Withdrawal from conspiracy
a. Majority Rule
i. requirements:
(a) withdrawal must be notified to co-conspirators
(i) not req’d to notify all, but at least some
(b) by engaging in acts inconsistent with the objects of the conspiracy
(c) no req’ment to convince other co-conspirators to abandon the conspiracy
(d) no req’ment that he expose conspiracy to public authorities or expose conspiracy to prevent the
carrying out of the act involved in the conspiracy
(e) reqs. that a Δ completely abandon the conspiracy
(i) must be done in good faith
ii. still liable for previous agreement and for previous acts of co-conspirators in pursuit of conspiracy
(a) stops ability for subsequent additional crimes to be assigned
b. MPC § 5.03(6)
i. “complete and voluntary renunciation of the criminal purpose”
(a) cannot withdraw when pos are approaching
ii. withdrawal is an affirmative defense only when Δ has “thwarted the success of the conspiracy”
5. Pinkerton rule: a party to a continuing conspiracy may be responsible “when the substantive offense is committed by one
of the conspirators in furtherance of the conspiracy even though he does not participate in the substantive offense or have
any knowledge of it. (a form of vicarious liability)
a. conspirator may be found guilty of substantive crime unless that crime “could not be reasonable foreseen as a
necessary or natural consequence of the unlawful agreement”; not foreseeable, not in furtherance of the conspiratorial
objective
i. a theoretically viable defense against acts of co-conspirators being added to Δ
b. applies to corporations
i. doctrine of respondeat superior: holds an employer or principal liable for the employee’s or agent’s
wrongful acts committed within the scope of the employment or agency (CB 975-983)
(a) vicarious liability under conspiracy (acts of one are attributed to the whole)
6. Hearsay rule – forbids the admission of evidence given by a witness as to what someone said off the stand when the
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probative value of that evidence depends on the credibility of the out-of-court declarant (CB 939)
a. Exception: statements made by a conspirator in the course of/furtherance of the conspiracy are authorized by all
his/her co-conspirators, therefore admissible against them as admissions, so long as trial judge satisfied by a
preponderance of the evidence that a conspiracy does exist
7. Wharton’s rule: If the definition of the substantive crime assumes that at least two people will agree to commit it (e.g.
adultery, incest, bigamy, dueling), it would be unfair “double-counting” for the state to charge conspiracy as well.
a. possible to have more than one conspiracy arising from one act
8. Policy
a. presence of more than one actor makes the attempt less likely to be abandoned and the division of labor among
conspirators makes it more likely that the attempt will succeed (CB 899)
i. conspiracy may be aggravating factor in substantive crime
(a) criminal law assumes that a grp planning to commit a crime poses a special danger to the public
welfare – Callanan v. U.S. (CB 901): “the danger conspiracy generates is not confined to the
substantive offense which is the immediate aim of the enterprise.”
(i) support and cooperation of co-conspirators increases probability of criminal conduct for
each participant
(ii) increase social damage members can do
(iii) hard for police to apprehend them
XII. ARSON
A. general intent crime
B. at common law, required that the burning be of a structure/dwelling house (similar to burglary statute)
1. must be a willful and malicious burning
a. malicious = extreme recklessness (sufficient to establish malice)
i. similar to malice under homicide
2. modern jdx do not require the structure to be a dwelling
a. CA includes any structure, forest land or property
i. becomes important for felony-murder
XIII. THEFT
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A. Robbery – combination of larceny with force/threat of force [force / (fear element) + larceny]
1. requires the thief take the personal property of the victim from his presence or person
a. different with burglary where the person need not be around
2. falls under “crimes against the person”
3. Common Law
a. felonious taking and carrying away
b. personal property of another
i. the person robbed doesn’t necessarily have to be the owner of the item
c. by force or threat of force
i. force/threat of force induces owner to relinquish possession
d. from the person or in the immediate presence of the victim
i. no robbery if item not removed from the presence of the victim 4. under MPC,
robbery possible even if person fails to take property of the victim
B. Larceny – formed after robbery (Specific Intent)
1. crime against “possession” not necessarily ownership
a. owner of property can be guilty of theft of own property
i. someone may have superior right to possession (e.g. taking a car from the mechanics without paying)
(a) taking of possession
b. usually not taken by force
i. more likely that stealth employed
2. requisite mens rea: actor must believe he is taking the property of another
a. if actor believes that he is taking property that is his with some claim of right, negates mens rea
i. specific intent necessary for larceny
3. at common law, prosecutor had to get the specific type of larceny and its elements correctly to get conviction.
a. modernly, “theft” serves as an umbrella (consolidated theft schemes
i. if any crime committed under theft umbrella, then guilty – larceny, embezzlement, false pretense, and
perhaps extortion as single offense of “theft”
(a) modern approach adopted by MPC and CA
4. Common Law – timing is of crucial importance
a. a “trespassory” taking and carrying away of property;
i. “trespassory”: at the very least a taking possession without the owner’s consent
(a) could be either force or stealth
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(i) trying to show that prosecution cannot make necessary connections of crime to the Δ
ii. actus reas
(a) try to show that act was not voluntary
iii. mens rea
(a) absence of requisite mens rea is a defense to the crime
iv. causation
(a) if or when proof of causation is required
C. Defense case: defense has burden of proving the elements of its affirmative defense to prevail
1. prosecutors usually likes these because the mechanics (actus reas, causation) are all conceded
a. Δ wants to explain his actions
2. virtually all affirmative defenses addresses answering the question: Why?
a. defense still takes on the burden of proof
3. if defense fails in establishing affirmative defense, then Δ not given jury instruction
a. assumed as an intentional killing if the full affirmative defense is not achieved
i. Δ may have misjudged reaction/situation
4. justified vs. excuse CB 583
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ii. Δ’s judgment of situation and his response come under scrutiny
4. Elements
a. threat
i. reasonable mistake allowed
(a) assessing reasonableness requires going to the facts and supporting the actor’s perception
ii. Δ cannot create a condition for own defense (CB 621) – “Where the actor is not only culpable as to causing
the defense conditions, but also has a culpable state of mind as to causing himself to engage in the conduct
constituting the offense, the state should punish him for causing the ultimate justified or excused conduct.”
(CB 622); U.S. v. Peterson: ct found Δ formed intent when he went back inside to get a gun and telling the
deceased to stop as deceased was retreating (CB 619)
(a) Aggressor Doctrine: aggressor can defend himself if the responding party escalates the situation or
if aggressor has tried to withdraw
(1) contradicts trad’l view that aggressors are not afforded privilege of self-defense for
something they instigate
b. imminence
i. reasonable mistake allowed
ii. Issue: what constitutes imminence? – e.g. BWS, People v. Goetz: prosecution questioned if it was
absolutely necessary for Δ to shoot (had testified that just flashing the weapon had a deterrence effect on
would-be muggers)
c. response must be proportional to the perceived threat
i. Issue: was the actor’s response reasonable?
5. must know whether jdx adopts a subjective or objective analysis (CB 585)
a. subjective: thru the eyes of the actor – People v. Goetz: Δ’s actions were based on his past experiences of being
mugged
i. circumstances sufficient to induce the accused to from an honest and reasonable belief that force was
necessary to defend himself against imminent harm – State v. Leidholm: Δ needed to introduce Battered
Woman Syndrome to address the lacking element of “imminence”
b. objective: factfinder views circumstances surrounding the accused from the standpoint of a hypothetical reasonable
and prudent person
6. Retreat – duty to retreat if there safe possible way of doing so?
a. Elements where retreat not necessary.
1. In Home
2. Making a lawful arrest
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3. Robbery
b. traditional retreat rule: a person assaulted in his dwelling need not retreat before using deadly force even if a safe
opportunity exists
i. majority of courts have expanded “castle” exception to cover business premises
c. minority of American jdx adopt a retreat doctrine
d. Model Penal Code adopts a retreat rule
i. not when defending against death or great bodily harm from a co-occupant of the dwelling (MPC § 3.04(2)
(b)(ii); CB 609)
7. Common Law allows one to repel an unlawful arrest
a. MPC does not
8. Defense of 3rd parties
a. can use defensive for if it is a self-defense situation (3rd party or law enforcement)
b. Common Law: can choose to help at actor’s peril (reasonable mistake was not allowed)
i. most modern law jdx allow reasonable mistake
re: choice of evils, must be able to i.d. the specific potential harm if the Δ faced
c. no requirement for the actor to share a relationship with the person he is aiding
i. still obligated to keep response proportional
d. MPC allows defense of 3rd parties
E. DEFENSIVE FORCE
1. Elements
a. Without fault
b. Unlawful force
c. Threat of Imminent Death or Great Bodily Harm
2. Battered Wife
3. Law Enforcement/Private Citizens for Escape
a. Force must be reasonable.
if he did not act the way he did .
b. Reasonable only if threat of death or serious bodily harm and deadly force is necessary to prevent escape.
c. Ex: Garner: Officer cannot use force for an unarmed, non-dangerous felon that poses no threat to officer.
d. Same limits for private citizens except escapee must be actually guilty of offense.
4. f
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6 Except in self-defense cases, one person cannot kill another to save himself. There is no unqualified justification for self-
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G. DURESS
1. differs from defensive force because the offense is committed to further rather than to resist the criminal project of the
aggressor (CB 663)
a. duress is an excuse, not justification
i. deflects responsibility for a coerced wrongful act from the perpetrator onto the person who coerced it
even if affirmative defense not available, still can use the different level of mens rea arguments
Look at affirmative defense, lapse of time, change of circumstances can take away or grant an affirmative defense.
H. MENTAL ILLNESS
1. INSANITY – an affirmative defense; necessarily need a mental disease or defect
a. “competence”: legal std. that requires the Δ be able to reason and understand what is going on
i. Δ must be able to assist his counsel at the present
b. “insanity”: refers to mental state exclusively at the commission of the crime
c. insanity defense places preponderance burden on Δ
i. if found insane, then Δ excused from the punishment of the crime
(a) may violate notions of retributive justice to punish those who cannot be held morally blameworthy
(b) whether punishment serves as a deterrence depends on what other persons the one is trying to
influence
d. defense of insanity rests on an internal cause, not external factors (e.g self-defense, necessity, duress)
e. M’Naghten Test (The “Cognition” Test) [lecture notes 11/20/2003]: “it must be proved that, at the time of the
committing of the act, the party accused was labouring under such a defect of reason from disease of the mind, as not
to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what
was wrong.” (CB 698)
i. “incapable of distinguishing right from wrong” refers to a person’s cognitive inability, due to a mental
disease or defect, to distinguish right from wrong as measured by a societal standard of morality, even though
the person may be aware that the conduct in question is criminal” – People v. Serravo (CB699)
ii. requirements:
(a) proof of a disease of the mind
(b) caused a defect of reason (does not KNOW nature and quality of act), or…
(c) such that the Δ lacked the ability at the time of his actions to either:
(1) know the (legal) wrongfulness of his actions; or
(2) understand the (moral) nature and quality of his actions
iii. might be that Δ does not know the nature of his act or not aware that he is doing the act
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(a) premised on idea that if Δ knows nature of his act, then can stop himself
(b) “A person in an extremely psychotic state might be aware that an act is prohibited by law, but due
to the overbearing effect of the psychosis may be utterly without the capacity to comprehend that the
act is inherently immoral.” – People v. Serravo (CB 696)
(1) “Conversely, a person, although mentally ill, has the cognitive capacity to distinguish right
from wrong and is aware that an act is morally wrong, but does not realize that it is illegal,
should nonetheless be held responsible for the act, as ignorance for the law is no excuse” (CB
696)
iii. does not ask whether Δ could control his behavior
§ 4.01(1): Mental disease or f. ALI/MPC Test
Defect Excluding i. broadened question of “knowledge” to whether Δ had “substantial capacity to appreciate the criminality of
Responsibility: his conduct”
ii. added the alternative “volitional question”: whether Δ, even if he could appreciate the criminality of his act,
A person is not responsible for
criminal conduct if at the time of
nevertheless lacked “substantial capacity to conform his conduct to the law”
such conduct as a result of (a) “appreciate” substituted for “know” holds that a sane offender must be emotionally and
mental disease or defect he intellectually aware of the significance of his conduct
lacks substantial capacity either
to appreciate the criminality
(i) demands more from prosecution
[wrongfulness] of his conduct or ii. specifically mentions conduct
to conform his conduct to the (a) conduct is presumed under M’Naghten test.
requirements of law.
g. Quasi-Insanity defenses rely on some mental element/reaction to an outside factor
i. alcohol & other drugs (drugs interact with mental illness)
(a) General Rule: any mental condition that derives from voluntary intoxication, including permanent
psychological damage that mimics the symptoms of insanity, is treated like the short-term effects of
intoxication
(1) does not exonerate Δ except in certain cases where it might negate “specific intent”
ii. Specific disorders (CB 737-744)
(a) Post-Traumatic Stress Disorder
(b) Postpartum Psychosis – women murdering/attempted murder of their infant children
(c) Premenstrual Syndrome
(d) Gambling
(e) Multiple Personality Disorder
h. “Diminished Capacity”
i. refers to cases where a Δ who cannot win on pure NGI claim, benefits through acquittal or mitigation of the
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