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INTRO
Criminal Procedure: focuses on the rules that govern the process, the steps as a person moves through the criminal justice system & the various procedural rights a person enjoys in that system from the Constitution. Criminal Law: substantive- focuses on the crimes themselves, the conditions under which a person is guilty of a crime. Ubiquitous & fundamental.
Distinguishing Between Civil & Criminal Crimes:
Civil Criminal
Nature of the Wrong Some loss to an individual Loss to an individual + moral wrong that creates a social harm
Burden of Proof Preponderance of the evidence Beyond a reasonable doubt (higher standard b/c more severe sanction)
Purpose of Legal Action Compensate the loss of the plaintiff
To punish/deter/rehabilitate/etc the perpetrator
Person Bringing Suit Individual harmed or their estate The People- public prosecution b/c we want to protect the victim who may feel intimated/afraid, financial reasons b/c cases favor the wealthy, & it’s a social harm Interest Represented in Court
Exclusively the private plaintiff The people, not necessarily the victim
Sanction Damages, injunctive relief Announcement of the crime + the sentencing itself
Sources of Criminal Law: common law & statutes (MPC)
• 1850-1900: development of codes & statutes to fill gaps in the common law
• 1960s: rise of the MPC, project of lawyers & legal scholars to (1) put all of criminal law in statutes & take it out of the common
law & (2) bring uniformity to the criminal law across the United States.
• Constitution: prohibits, creates, limits punishments, etc to align w/ what the Constitution says
Criminal Law – Federalist System
• President Attorney General 98 Chief Federal Prosecutors (US Attorneys)
• FBI agents are parallel to police.
• State Level = state or district attorney (depends on the state)
Punishment
• Retributivism : eye for an eye, we punish b/c they deserve it
• Utilitarianism : punishment is justified insofar as it produces some net social benefit
• Deterrence : sending a message to other would-be law breakers- if they do this, there’ll be punishment. Assumes that the
people you’re trying to send the message to are rationale
• Rehabilitation : focused on the person who committed the crime, preventing them from doing it again
• Incapacitation : taking the crime-doer out of society for some amount of time
ACTUS REUS: a voluntary act that causes a social harm The physical or external portion of the crime w/ a slight mental requirement that the act be ‘willed’ (volition)
A voluntary act:
• Act: muscular contraction / bodily movement
• Voluntary: built into the definition of ‘act’, an act that follows from a person’s volition, willed
• Involuntary according to MPC: reflex, convulsion, movements during sleep, under hypnosis, physically forced, etc.
• Omissions: you cannot be criminally liable for failing to act
• For Requiring: no extra harm, greater sense of security, deterrence of criminals
• Against Requiring: fear of being involved, limits liability, intentional aversion of situation, autonomy, problems of proof
• Exceptions:
1. statutory requirements
2. special relationships involving dependence
3. contractual relationship
4. voluntary assumption of care excluding others
5. accidental creation of risk of harm to others
That causes: causation
A social harm:
• Result Crimes: defined in terms of some prohibited result
• Conduct Crimes: defined in terms of harmful conduct, even where there may be no harmful result
• Attendant Circumstances: condition that must be present, in conjunction w/ the prohibited conduct or result, to constitute the
crime
MENS REA: the mental or internal portion of the crime, the mental state of the defendant Rationale: we don’t want to hold the wrong people accountable
Uses of Mens Rea:
• Culpability:
• When a common law crime lacks an expressly stated mens rea , the court looks to whether the Δ had any morally
blameworthy state of mind [broad, unguided discretion to jury]
• Assumption: a common law crime always has a mens rea, & when the rule doesn’t expressly state one, the courts would
read the culpability sense of the mens rea into the rule.
• Common law crimes of this type are still applied to general intent offenses (i.e. rape)
• Elemental:
• The person who committed the act has a particular state of mind that is expressly specified in the offense (intentionally,
maliciously, recklessly, etc) toward the social harm
• Some common law crimes & almost all modern statutes use the mens rea in this sense.
• Offenses of this type are called specific intent offenses (i.e. common law murder: killing a person w/ malice aforethought)
Terms in Common Law
• Intentionally: 1. desires to cause the social harm or 2. person acts w/ knowledge that the social harm is practically certain to occur
• Knowingly/With Knowledge: acting w/ near certainty or practical certainty that some result will occur even though that result is
not your intention- you set fire to a house, knowing that A is sleeping inside, you hope A doesn’t die, but still burn the house
• Willfully: intention synonym
• Negligence: unjustified risk taking- deviation from the standard of care that a reasonable person would observe (criminal & civil
negligence are different in degree- criminal negligence requires a more severe deviation)
• Recklessness: on a spectrum of degree of severity of departure: negligence → gross negligence → recklessness. Consider whether
or not the person is conscious of the risk they’re taking- negligence is not aware of the risk, recklessness is
• Malice: specific term w/ a technical meaning- intent to cause the social harm OR acting recklessly
• Constitutional (not on exam)
• Knowledge of the law as an element of the offense: legislature creates a crime & they make an element of the crime that you have
to knowingly violate it. Thanks legislature! “A person who knowingly violates this section is guilty of…”
• Different Law Mistake: ignorance of some law- usually some non-criminal law other than the criminal offense for which the Δ
was charged- the ignorance of which has the effect of negating the mens rea (prosecution cannot prove the mens rea BRD )
• Exception- Larceny: taking & carrying away of the property of another w/ intent to steal.
A takes her car to B for repair → A thinks the bill is excessive & refuses to pay, & leaves → A comes back at night w/ her spare keys & drives her car away → A is prosecuted for larceny → A is unaware that another state law says a mechanic retains legal possession of a repaired vehicle until the bill is paid.
■ Driving her car away, she was taking it from someone else who had lawful possession b/c she didn’t pay the bill.
■ A was ignorant of the law, therefore she had no intent to steal it. Doesn’t matter if it was reasonable.
CAUSATION: proof: BRD , not preponderance of the evidence (torts)- causal connection has to be stronger b/c the stakes are higher
• Result Crime: direct harm to the individual (i.e. murder) – issues of causation come up in result, not conduct, crimes
• Conduct Crime: may not result in a direct harm to an individual (i.e. driving recklessly)
Actual Causation / Cause-in-Fact / But-For Causation: Common Law & MPC
• But-for the Δ’s voluntary act, would the social harm have occurred when & as it did? if NO , Δ is an actual cause of the result
• An otherwise nonlethal act, concurrent w/ a lethal act, that accelerates a death is an actual cause of death
• Criticism: we need to separate the remoteness of causes b/c someone could follow causation back to ‘if I hadn’t been born…”
Proximate Causation / Legal Causation: all proximate causes are actual, not all actual are proximate
• 2 Main Qs : (1) was the harm reasonably foreseeable / a natural & probable cause? (2) was it too remote to hold Δ
responsible?
• Intervening Cause: another but-for cause, after the Δ’s but-for cause, that falls in the causal chain leading to the social harm
• Pattern: Δ gravely harms V (AC) another force intervenes as a second actual cause (i.e. third party, contributory negl.,
accident) intervening cause aggravates V’s injuries / accelerates V’s inevitable harm
• Superseding Cause: an ‘intervening’ cause is also a ‘superseding’ cause when it breaks the causal chain as to the Δ & thereby
negates any finding of proximate causation as to the Δ.
• Factors for Determining Proximate Causation:
1. De minimus contribution to the social harm
2. Foreseeability of the Intervening Cause
2.a. Responsive Intervening Cause: act occurs in response to Δ’s wrongful act
2.i. Does not negate criminal responsibility, not superseding, unless RIC was unforeseeable & highly
abnormal
2.b. Coincidental Intervening Cause: act does not occur in response to Δ’s wrongful act
2.ii. Does negate criminal responsibility, is superseding, unless CIC was foreseeable
3. Δ’s Mens Rea / Intended Consequences Doctrine
2.c. Δ who is a but-for cause can be criminally responsible as a proximate cause where the Δ intended that an
intervening cause would produce the social harm (mom wants kid dead, gives nurse wrong meds, kid grabs/takes meds)
4. Dangerous Forces That Come to Rest / Apparent Safety Doctrine
2.d. Decision to re-enter the dangerous forces
5. Free, Deliberate, Informed Human Intervention
2.e. If the victim makes a voluntary act that then results in the victim’s harm, that can break the causal chain & render
the Δ too far removed to be a proximate cause
6. Omissions
2.f. Will rarely break the causal chain. Ex. back seat passenger dies in car accident b/c she didn't have her seatbelt on-
doesn’t matter, driver is still a proximate cause.
Hypos:
• X intentionally stabs V in the chest. V will die from loss of blood in 15 minutes. Simultaneously, D intentionally shoots V in the
leg. V would not die from this wound by itself. V dies in 10 minutes
• X = Actual Cause & V would’ve died in 15 minutes w/o D, but D accelerated V’s death, so D = Actual Cause
• Same ^, but D unintentionally shoots V
• Same ^ , only differs regarding the mens rea, but they are both but-for causes, regardless of intention
• Same ^, but V dies in 15 minutes.
• X = Actual Cause & D ≠ Actual Cause , b/c D’s act alone wouldn’t have killed V & he didn’t accelerate death
• X stabs V. Simultaneously, D stabs V. Neither wound by itself would kill V. V dies b/c of blood loss from both.
• X & D = Actual Causes , but-for their voluntary acts, the social harm would not have occurred when it did.
• Extreme reckless disregard for the value of human life (mens rea: recklessness) 2 nd
• Intent to commit a felony other than homicide, during which a person is killed (felony murder) 1 st^ or 2nd
First Degree Murder
• Murders committed in some statutorily-specified manner
• Willful (intentional), deliberate, & premeditated killing
• Any homicide that occurs during commission of certain
other felonies [felony murder]
Second Degree Murder
• Intentional but not willful, deliberate, or premeditated
• Intent to inflict grievous bodily injury where death
results
• Reckless killings
• Felony murder- some jurisdictions make it 1 st^ , 2nd, or
both
High degree of risk of serious bodily injury or death to another person
Unjustifiable Aware
conscious disregard
Recklessness depraved heart + abandoned & malignant heart + extreme indifference
Murder 2nd degree, where distinguished
RAPE
Black Letter Law: rape is “the carnal knowledge of a woman forcibly & against her will”
Elements: Actus Reus:
• Conduct: vaginal intercourse
• Attendant Circumstances:
• Resistance Requirement : proxy for force & non-consent, given evidentiary challenges
■ Force (actual, or threat of, serious bodily harm) + Non-consent
Mens Rea: no term is stated, therefore a general intent offense (morally blameworthy state of mind)
Critical Questions: Why does the proof of this crime focus on the victim’s response? What if the victim’s response is passivity/ numbing/ freezing rather than resistance? What if resistance increases risk of harm? Why require force at all? Isn’t non-consent enough?
Traditional Requirements of Rape: force, non-consent, resistance requirement
• Second degree rape involves vaginal intercourse w/ the victim both by force/threat of force, against the victim’s will, & without
the consent of the other person.
• Consent by the victim is a complete defense, but consent which is induced by fear of violence is void & is no legal consent.
• Force is an essential element of the crime & to justify conviction, the evidence must warrant a conclusion either that the victim
resisted & her resistance was overcome by force or that she was prevented from resisting by threats to her safety
• The fear must be reasonable. This case turns on the resistance requirement.
• “Not only must there be entire absence of mental consent or assent, but there must be the most vehement exercise of every
physical means or faculty w/in the woman’s power to resist the penetration of her person, & this must be shown to persist until the offense is consummated” (Brown v. State, 1906)
• The resistance requirement has mostly been dropped/rejected by states (one of the reforms to the common law def.)
The Challenge
• Difficult to define in ways that don’t seem to plague other crimes because: there are so many levels of the crime & levels of the
harm, there isn’t a clear line. Homicide = dead body, Rape = ...?
• Rape: sexual intercourse w/ another person (AR) , morally culpable state of mind (general intent offense) (MR)
• The actus reus for rape, unlike murder, is a normal event that happens on a daily basis, so we have to define a very non-
criminal act as criminal based solely on the mens rea.
Possibilities for Reform
• Drop/diminish the resistance requirement, but still require force & non-consent
• Redefine force & consent
• Drop force requirement altogether
• New Federal Definition (for reporting purposes): penetration, no matter how slight, of the vagina or anus w/ any body part
or object, or oral penetration by a sex organ of another person, w/out the consent of the victim
Commonwealth v. Berkowitz : dorm room, girl didn’t scream, fight back, or leave. She said ‘no’ repeatedly in an encouraging moaning voice. She also made suggestive comments to him about his penis size & visited the dorm while drunk a few times.
• ‘88: a person commits a felony of the 1st^ degree when he engages in sexual intercourse w/ another person not his spouse
• By (1) forcible compulsion & (2) threat of forcible compulsion that would prevent resistance by a person of reasonable
resolution [ there’s no consent requirement!!]
• The alleged victim need not resist the actor in prosecution under this chapter
• At least 24 states today have abolished the marital immunity (marriage = forever consent to your spouse)
THEFT: involuntary & unlawful transfer of property Larceny (common law crime) embezzlement (statutory crime) false pretense (statutory crime) robbery (aggravated larceny) burglary
Common Law - Larceny: the trespassory taking [caption] & carrying away [asportation] of the personal property of another [actus
reus] w/ the intent to permanently deprive the possessor of the property [mens rea].
• Larceny involves the trespassory taking of personal property from the possession of another person [caption].
• Common Law possession : doesn’t require taking something from owner- a person has possession when she has sufficient
control over the property to use it in a reasonably unrestricted manner, possession doesn’t turn on ownership
■ A taking is a transfer in possession & can be lawful or unlawful.
■ Lawful possession/non-trespassory taking: when the person who had possession consents to the taking
• Three questions to determine whether a trespassory taking :
• Who initially had possession of the allegedly stolen property? Must be the victim
• To whom possession transferred? Must transfer to the Δ.
• Whether such transferred possession (taking) occurred lawfully (non-trespassorily) or unlawfully (trespassorily)? Must occur
trespassorily (w/out consent of the victim)
Actus Reus; “Trespassory taking” [ caption ]
• Basic Analysis: turns on possession, not ownership + lawful v. unlawful possession turns on consent.
• Special Situation/Consent for temporary use : a person w/ temporary & very limited authority to use a piece of property has
mere custody of it. The person who gave custody retains constructive possession. Three Loopholes:
• Custody (contents) v. Possession (container): when someone has limited temporary use, we can hold them liable for larceny -
whereas we wouldn’t have been able to if we didn’t define custody versus possession
• Employer/employee & bailor/bailee relationships - ( application of possession/custody distinction)
• Bailment: the act of delivering goods or personal property to another person
• Bailor: the person who hands over the goods to be delivered.
• Bailee: the person who receives the goods
• Breaking Bulk: when a person is entrusted w/ a container for delivery in unopened condition, the bailee receives
possession of the container but receives only custody of its contents.
• Caption by fraud, larceny by trick : only custody where intent to steal concealed by fraud
• Once you have lawful possession- you can never be guilty of larceny. So the court wants to find a way to hold
certain people/situations guilty- so they need to find unlawful possession.
• Therefore- larceny by trick, if at the time of what would otherwise be lawful possession, you intend to steal the item,
it is unlawful possession, mere custody
“& carrying away” [ asportation ]: any movement of the property
• Almost any movement of the property away from the point of caption is sufficient to satisfy the carrying away requirement.
“of the personal property” + “of another”:
• Larceny doesn’t cover/apply to real property (cutting down a tree) or intangible property
• A car in a shop- mechanic has temporary lawful possession, so taking your car back w/out paying is larceny.
• “of another” – no larceny against property you own, unless victim has lawful possessory interest
Mens Rea: “ w/ the intent to steal” = permanently deprive the possessor of the property
• Concurrence of the Elements / Continuing Trespass: to be able to hold someone liable who originally did not intend to
permanently deprive, but later decided to do so - there’s no concurrence of the elements in this situation, so larceny would ‘t work. Therefore, if the trespass can be considered to be happening at every point in time, the elements will line up at some point to allow for larceny Hypo: A boy steals a bike from a boy who was throwing oranges at him w/ the intent of returning it to him at the end of the day. He is charged w/ burglary (breaking into a dwelling at night time w/ the intent to commit a felony).
GENERAL DEFENSES: set of conditions which, if proven, prevent conviction/acquittal [ total , i.e. self-defense] or result in conviction for a lesser offense [ partial , i.e. heat of passion, voluntary manslaughter]
Types of Defenses: Failure of Proof / Negative Defense: elements are not satisfied, therefore not culpable Traditional Defense / Affirmative Defense: elements are satisfied, but not culpable for some other reason
• Justification Defense : a set of conditions which prevent conviction b/c the otherwise criminal act was the right or permissible
action in this instance. Socially acceptable/desirable. Objective. Must be disproved by government.
• Excuse Defense : a set of conditions which prevent conviction b/c the actor, while committing an otherwise criminal act, is not
morally blameworthy. Punishment is not merited. Personal. Must be proved by Δ.
Self-Defense
• Common Law: a non-aggressor is justified in using force upon another if she genuinely & reasonably believes such force is
necessary to protect herself from imminent use of unlawful force by another person. Force must be proportional.
• Deadly force is only justified if the actor reasonably believes it is necessary to prevent imminent & unlawful use of deadly
force by the aggressor.
Self-Defense Components Necessity Component: force should not be used against another person unless it is necessary
• Corollary : there would be no need for self-defense unless it was suggested in the first place
• Corollary 1: Imminence Rule
• Use of force in self-defense ins permissible only where the threat of force is imminent - just moments away
■ MPC 3.04(1): use of force justifiable for protection of the person…
■ The use of force upon or toward another person is justifiable when the actor believes that such force is
immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.
• Corollary 2: Provocation Rule
• The right to use deadly force in self-defense is not available to someone who provokes a conflict or is the aggressor in
it, unless the Δ first w/draws from the conflict in good faith & informs the other parties to the conflict of that w/drawal by words or acts.
■ MPC 3.04(2)(b)(i): the use of deadly force is not justifiable… if the actor, w/ the purpose of causing death or
serious bodily injury, provoked the use of force against himself in the same encounter.
■ Hypo: A sticks out his foot & trips B as he’s walking by. B gets mad & pulls out a gun on A. Should A be able
to claim self-defense under the MPC if he uses proportional force to protect himself & kills B? Yes, b/c the tripping was not w/ the purpose of causing death or serious harm.
• Corollary 3: Retreat Rule / Castle Doctrine (exception)
• Retreat Rule: A person cannot invoke the doctrine of self-defense where that person had some means to safely retreat
(retreat in complete safety) & avoid the harm.
• Majority: a person can use deadly force to repel a deadly attack even if he is aware of a place of complete safety (no
duty to retreat, stand your ground)
• Castle Doctrine: a non-aggressor is not ordinarily required to retreat from his dwelling, even though he knows he can
do so in complete safety, before using deadly force in self-defense.
• MPC 3.04 / Retreat Rule : the use of deadly force is not justifiable… if the actor knows that he can avoid the necessity
of using such force w/ complete safety, except that the actor is not obliged to retreat from his dwelling or place of work
• Hypo: Dina walks down a certain road. Bully informs her that if she walks down that road again, he will kill her. Dina arms
herself w/ a visible, licensed gun & walks down that road. Bully appears & comes toward her menacingly, Dina shoots & kills him. She cannot claim self-defense b/c she had no duty to walk down that road.
Proportionality Component : a person is not justified in using force that is excessive in relation to the harm threatened
Reasonable-Belief Component:
• Subjective Prong : person must believe that she needed to use (deadly) force to repel
• Objective Prong : person’s belief must be one a reasonable person in the same situation would have possessed.
Defense of Others: available on behalf of any third party, generally applies where 3 rd^ party could’ve claimed defense, or where 3rd party would apparently have been justified in using force in self-defense- same force the third party would’ve used
Defense of Property: a person may use non-deadly force against a would-be-dispossessor if she reasonably believes such force is necessary to prevent imminent, unlawful dispossession of property
Defense of Habitation: a person may use deadly force if she reasonably believes such force is immediately necessary to prevent an imminent & unlawful entry of her dwelling.
Excuses Necessity: lesser evils defense, only applies to natural forces
• Common law elements:
• Clear/imminent harm directed toward a person/property
• Reasonable belief that action will abate the danger
• No adequate alternative
• Harm caused not disproportionate to harm avoided
• None of the following apply
■ Δ caused the danger
■ Defense limited to naturally-caused
emergencies
■ Legislature balanced harms otherwise
• MPC 3.02 broader in three ways
• No imminence requirement
• No automatic loss of defense b/c of fault
• Not limited to emergencies from natural causes (as in some states under common law)
• Harm avoided > harm caused
• Common law denied defense in cases of murder (MPC does not per say deny)
Excuses Duress
“The major difference between duress & necessity is that the former negates the existence of the requisite mens rea for the crime in question, whereas under the latter theory there is no actus reus.”
• The effect of duress is not to negate the mens rea = affirmative defense → excuse.
• Necessity is a balance of evils, when balance of good is sought = affirmative defense → justification
Definition of Duress: an immediate (imminent) threat of death or serious bodily injury + a well-grounded fear that the threat will be carried out + no reasonable opportunity to escape the threatened harm + Δ is not at fault for creating the situation
• Doesn’t apply if someone threatens to harm your property. Must be from a person to a person.
• Common law limits this defense to threats against you or your immediate family, not a distant third party (most statutes reject that
today).
• Can’t claim duress for reputation (blackmail).
MPC 2.09: duress is an affirmative defense if:
• (1) Δ was compelled to commit the offense by the use or threatened use of unlawful force by the coercer upon Δ or another
person; & (2) a person of reasonable firmness in Δ’s situation would have been unable to resist.
• Note: no language about an imminent threat | MPC impliedly allows duress as a defense to a homicide, common law does not
• Differences from common law – MPC is more lenient
• No requirement of an immediate (imminent) threat of death or serious bodily injury
• May be raised in homicide cases
• No requirement that victim be Δ or a member of Δ’s family.
Defense to Murder? You can always choose to resist- using duress as defense to murder may let gang members off the hook (weak arg). 17 states expressly exclude duress as a defense to murder in their state statutes & 14 do so based on case law. A few states recognize it as a partial defense.
Control Test / Irresistible Impulse Test - in ADDITION to M’Naghten
• Volition: A person is insane if, at the time of the act:
• Prong 3: she acted from an irresistible & uncontrollable impulse; OR
• Prong 4: she lost the power to choose between right & wrong b/c her free agency was destroyed
• Criticism:
• Doesn’t recognize degrees of incapacity - all or nothing
• No test for measuring volition
Product Test / Durham Test
• A person should be excused if her unlawful act was the product of some mental illness or defect
• Criticism:
• lots of other conditions which we recognize which haven’t judged to be insane in past would be encapsulated
• dwindle jury’s function b/c battle of the experts except for which expert to believe
MPC Test - 4.01 (broad)
• A person should be excused if, at the time of the conduct & as the result of a mental defect, the person lacked substantial
capacity to:
• Prong 1: appreciate the criminality (“wrongfulness”) of her conduct; OR
• Prong 2: to conform her conduct to the requirement of the law
Insanity Tests among the States
• Predominant test is the M’N Test – to limit defense
• Burden of Proof: most states it is on a preponderance of the evidence (no states require beyond a reasonable doubt)
• Burden of Persuasion: on the Δ now, pre-Hinckley it was on the prosecution
Criticisms:
• Take into account both cognitive & volitional aspects
• Take into account degrees of insanity
• Ensure experts don’t supplant role of jury
• Discern moral responsibility (ultimate issue)
INCHOATE CRIMES: impose liability for acts done before the harm intended fully occurs Inchoate Crime → Target Crime: class of incipient offenses that criminalize acts taken w/ the requisite mental state toward a target crime Stages of a Crime:
2. Conceiving the idea of committing a crime
3. Evaluating the idea
4. Forming intention to go forward w/ crime
(mens rea)
5. Preparing to commit the crime (actus
reus)
6. Commencing w/ commission of crime
(perpetration)
7. Completing the crime
• Stage 4 & 5 are Inchoate Crimes
• Stage 6 is the Target Crime
ATTEMPT: occurs when a person, w/ the intent to commit an offense, intentionally performs some substantial step towards carrying out that intent Incomplete Attempts: Δ does some of the acts necessary to achieve the criminal goal, but quits or is prevented from moving forward before taking the final acts to complete the crime. Complete Attempts: Δ performs all of the acts that she set out to do to commit the crime, but fails to attain the criminal goal. Rationale: we want the police to be able to prevent crimes (debatable whether general deterrence too)
Grading Attempts for Punishment
• If the target crime makes you liable for death or life in prison → the attempt makes you liable for 10-50 years
• If the target crime makes you liable for something less than death or life in prison → the attempt makes you liable for ½ max for
target crime.
• MPC 5.05 Grading: attempt is a crime of the same grade & degree as the most serious offense that is attempted. An attempt to
commit a capital crime or a felony of the first degree is a felony of the second degree.
Common Law Mens Rea: dual intent requirement… same MR as target crime
• Intent #1 : the Δ must intentionally commit the act that constitutes the actus reus of an attempt. (Δ must intentionally perform the
act that brings Δ into proximity of committing the substantive offense- the “substantial step”)
• Intent #2 : the Δ must perform these acts w/ the intent of committing the target crime.
Hypo: A is hunting. B is mushrooming. As B bends over to pick a mushroom, A shoots at A & shoots right over her back.
■ The first question is: did A intentionally fire the gun? Assuming she did intentionally fire the gun, the second
question is: did she intend to commit the target crime of murder?
■ If A knew B was somewhere around there but still had no intention of shooting her - A was just reckless.
• A fired at B & was disappointed that she missed.
■ (1) Intentionally performed the act- yes. (2) Did she intend to commit the target crime- yes.
Rule : attempt always requires an intent to commit the target crime & you cannot intentionally commit an unintentional crime. So, only target crimes that have a mens rea of intent (purpose) can give rise to attempt crimes + can’t have “attempted felony murder”
Actus Reus for Attempt in the Common Law:
• No single rule for what satisfies AR of an attempt crime. Courts come up w/ these tests. The decision about what the test should
be is how far back in time do we want police be able to act about a crime- too early could criminalize behavior that isn’t criminal
• Preparation alone is not enough, there must be some appreciable fragment of the crime committed.
• Factors to Consider: proximity, seriousness of harm, & evidence of the mens rea
• Common law does not punish preparation, only perpetration
• MPC draws the line sooner, allows earlier charges, focuses on what acts have already been taken- may criminalize in stage 4
Common Law Tests- Attempt Actus Reus:
• The Last Act: a criminal attempt only occurs when the person performs all the acts necessary to commit the target offense
• Criminalizes a complete attempt only. Most restrictive.
Rationale : creates incentives to report the crime & not participate, it’s a means to help prevent crime. Avoid group/peer pressure. & pulling off a crime alone is more challenging- more power in numbers. (extra punishment b/c of increased danger of the collective + early intervention)
Common Law Elements: Actus Reus: an agreement (+ overt act, in some jurisdictions) Mens Rea: (1) intend to agree + (2) intend that the object of the agreement be achieved Overt Act: any act, no matter how insignificant, that is done in furtherance of the conspiracy Agreement: express or implied, can be between people who don’t even meet each other, does not require knowledge of all of the members of the conspiracy.
Relationship between conspiracy & target crime - the Merger Rule (target crime + conspiracy)
• Can you be liable for murder & attempted murder of the same victim? No - one or the other. There is a merger rule- if you’re
convicted for the target crime, the attempt crime merges w/ it & you are only charged for the target crime.
• Under the common law of conspiracy - there is no merger rule! You can be liable for the conspiracy & the attempt or the
conspiracy & the target crime.
• Additional Hypos:
• If a person is successfully prosecuted for murder, can they also be convicted of attempted murder? No, the attempt merges
w/ the target crime.
• If a person is successfully prosecuted for murder, can they also be convicted of conspiracy to commit murder? Yes, no
merger.
• If a person is unsuccessfully prosecuted for murder (acquitted), can the person be successfully prosecuted for conspiracy to
commit murder? Yes, conspiracy is a crime separate & distinct from the target offense
Punishment
• Few states still treat it as a misdemeanor + most states relate the punishment to the target crime (if tc: felony, conspiracy: felony)
MPC Differences | MPC 5.03:
• Requires an overt act when the target crime is minor- major target crimes don’t need an overt act b/c we want to charge easier
• Punishment same for conspiracy as target crime (unless target crime is a 1 st^ degree felony, punishment is 2nd^ degree)
• Merger Rule Applies: you cannot be convicted of target offense & conspiracy (unless the offense includes something that has
not yet been committed or attempted) [charged w/ robbery of bank 1 & conspiracy of robbing bank]
• Common law recognizes an increased danger of people working collectively, so conspiracy accounts for an
additional offense. Whereas the MPC accepts the merger rule b/c it recognizes one rationale- preventative law enforcement measures.
• Unilateral approach b/c it looks at each Δ individual, not the entire scheme, considers single perspectives (only look at A’s
conspiracy with Middle Man and not held liable for Middle Man’s conspiracy with B, C, & D)
MPC Requirements: agreement with one or more people with the purpose of promoting/facilitating the crime and possess intent as to conduct and result Actus Reus: agreement to commit an unlawful act or series of act (+ an overt act when the target crime is minor)
• Agreement can be implied, it need not be expressed. When implied, can be established through circumstantial evidence of a
mutual understanding.
• Parties to agreement don’t need knowledge of all details; only need to be aware of its essential nature- scope & objective
• Where an overt act is required, any act is sufficient no matter how minor, if in pursuance of the conspiracy.
Common Law Conspiratorial Liability/ Pinkerton Doctrine: w here a conspiracy is formed, the conspirators will be guilty for any crimes committed by a party to the conspiracy if (1) the crime is committed in furtherance of the conspiracy, & (2) the crime is reasonably foreseen as a necessary or natural consequence of the conspiracy/unlawful agreement, the other conspirators will be guilty for the substantive offense. [MPC rejects]
• Hypo: A is the organizer & ringleader of a conspiracy to rob banks. He hires B & C to rob banks 1 & 2. B & C don’t meet face to
face, but both know they are members of a large conspiracy & they know of each other’s assignment. At A’s instigation & w/ B & C’s knowledge, D steals a car for use in the robberies, & it is used. A, B, C, & D are parties to a single conspiracy
• Assuming no Pinkerton Doctrine, what crimes did each personally commit? All four are guilty of conspiracy, B: robber of
bank 1, C: robber of Bank 2, D: car theft.
• Applying the Pinkerton Doctrine, of what offense is each party guilty? B: C’s bank robbery & D’s car theft. C: B’s robbery
& D’s cart heft. D: both bank robberies. A: everything.
• Everyone is guilty of every crime, since every crime was either an object of the conspiracy or in furtherance of this object.
Hypo: Jacob & Ken agree to detonate a bomb in a building that they both know is occupied, in order to destroy it. Although they do not want anyone to die, they believe that people inside will be killed as a result of their actions.
• MPC Mental State = purposefully (want to detonate) & knowledge (of people in the building)
• MPC crime = criminal homicide constitutes murder when (a) it is committed purposely or knowingly or (b) it is committed
recklessly under circumstances manifesting an extreme indifference to the value of human life.
• If the bomb doesn’t go off - a person is guilty of attempt to commit a crime if… the person does or omits to do anything w/ the
purpose of causing or w/ the belief that it will cause such result w/out further conduct on his part.
• For a criminal attempt/result crime, knowledge is sufficient to satisfy the second of the dual mens rea requirement for attempt
under the MPC.
• Are Ken & Jake guilty of the conspiracy to commit murder? Regarding the mens rea, only requires purpose, not knowledge
(insufficient to satisfy conspiracy under the MPC) Murder wasn’t their purpose, so no conspiracy to commit to murder.
Rule from Case Law: the intent necessary to satisfy the mens rea component of conspiracy (second of the mens rea) is satisfied where a supplier knows the criminal activity connected w/ the supplies he furnishes & there is: (1) Direct evidence that the supplier intends to participate; or (2) evidence that supports the inference that the supplier intends to participate, based on;
• Δ's special interest in the activity (stake in the venture, no legitimate use for goods, high proportion of business); or
• Aggravated nature of the crime itself
Defenses:
• Common law & MPC say that there’s no “impossibility defense”
• Abandonment/Renunciation Defense
• Common law doesn’t recognize it as a defense to conspiracy, but does to conspiratorial liability/pinkerton doctrine
• MPC recognizes “Renunciation” as long as it is complete, voluntary, & the Δ thwarts the success of the conspiracy.
• Wharton’s Rule – only Common Law:
• No conspiracy where offense by its nature requires 2+ people
• An agreement by two people to commit an offense that by definition requires the voluntary concerted criminal
participation of two persons, cannot be prosecuted as a conspiracy. (adultery, bigamy, receipt of bribe, sale of contraband
- certain crimes require at least two people) Important rule b/c of Conspiracy Rationales (prevention & power in numbers)
• Exceptions:
■ 3 rd^ Party Exception, if more than the minimum number of people necessary to commit the offense agree to do so
■ If two persons involved in the conspiracy are not the two-people involved in committing the target offense.
SOLICITATION: intentionally inviting, requesting, commanding, hiring, or encouraging another person to engage in conduct constituting any felony, or a misdemeanor relating to obstruction of justice or a breach of the peace, w/ the intent that the other person commit the solicited crime. [specific intent crime]
Common Law Elements: Actus Reus: invite / request / command / hire / encourage another person to carry out a target crime Mens Rea: (1) must intend to invite/request/command/hire/encourage + (2) must intend to have the solicited act/target crime carried out Merger: Where a person is held liable for the target crime under a theory of accomplice liability, which is a basis of liability for the target crime, the solicitation merges w/ the target crime (or the attempt to commit the target crime. Or the conspiracy to commit the target crime).
MPC 5.02 : a person is guilty of solicitation to commit a crime if w/ the purpose of promoting or facilitating its commission he commands, encourages or requests another person to engage in specific conduct that would constitute such crime or an attempt to commit such crime or which would establish his complicity in its commission or attempted commission.
Conspiracy w/out solicitation: spontaneous agreement to conduct the target crime (robbers robbing at the same time) Under MPC, renunciation = defense: but must be complete, voluntary, & thwart the success. Convince the person solicited not to act.
