Theories of Punishment Utilitarian: pleasure or pain experience or inflicted measured by the total happiness of community.

Purpose is to exclude mischief, so punishment mischief must be less than mischief of the crime. (Forward looking/ consequentialist theory) So, want to punish in a way that is less costly than the crime prevented to maximize net benefit to society. Assumes rational actors making risk/benefit calculations, which is dubious since most criminals probably are lacking in sound judgment. a. Sub-Theories as Part of Utilitarianism: i. Deterrence (Greenawalt): Individual/Specific or General 1. Individual/specific deterrence: Encouraging that person not to do that thing again a. Utilitarian perspective argues for more severe punishment of repeat offenders because they werent deterred the first time. 2. General deterrence: Setting an example to discourage society as a whole from doing that thing a. Benefits of crime outweighed by punishment, even when discounted by probability of avoiding detection i. POLICY: Would argue that the greater the temptation to commit a crime and the smaller the chance of detection need more severe punishment to deter. ii. Policy: Want to deter criminals from escalating crime, thus the need for graduated punishment; severity of punishment shoul d be proportionate to the crime so that criminals will have reason to not take crimes to the next level (marginal deterrence) 3. Punishment x probability > expected gain ii. Consequentialist: Better for society at large to have people know the consequences of their action (Perhaps punishment might one change his ways) iii. Incapacitation: Better for society at large to incapacitate individuals who committed crimes to prevent them from committing future crimes, but ONLY when the cost of doing so is cheaper than their potential crimes. You wouldn t just lock up everyone or kill off any minor offender, because the cost of doing so would be more than the cost of their crimes, which decreases net social benefit. iv. Rehabilitation: punishing individuals so they somehow rehabilitate, get better, and dont commit future crimes. Less prevalent last few decades. v. Expressive Condemnation: Using the stigma of punishment to get the D and others to internalize good social norms and change behavior. b. Benthams classical utilitarianism: Maximizing pleasure and minimizing pain. i. If your crime has no bearing on the magnitude of the punishment you receive, what's the point? Need proportional punishment to achieve deterrence. ii. Net happiness calculations: would even allow punishment of an innocent person to prevent greater negative impact. c. Criticisms of Utilitarian Theory of Punishment: i. Tries to reduce everything to net happiness or pain v. pleasure; this is a difficult task, because we all have different kinds of experiences in the world difficult to measure by utility. ii. Kant: Said that one man shouldnt be punished as a means subservient to the purpose of another; shouldnt allow one mans crime & p unishment to deter other men from committing such crimes. A criminal sentenced to death shouldn't be let off for medical experiments; justice wouldn't be justice. Retributivist: Moral Desert of offender is sufficient reason to punish; he did something wrong, and he should pay for it [deterrence just a happy surplus]. Notion that offenders are deserving of punishment because of what they did, so culpability not the harm of the crime or the wrongfulness of the act is what justifies punishment. (Backward looking theory) a. Factors: Mental state, voluntary engagement in socially harmful acts, actual social harm, lack of justification or excuse b. Negative retributivism: guilt as a necessary condition of punishment; i. Positive retributivism: guilt is both a necessary and sufficient condition of punishment-- Must be punished even if no deterrence goal can be served. ii. Negative retributivism: Moral desert is necessary for punishment, but is only one of potentially more factors c. Kant: judicial punishment can only come when someone has committed a crime; cant be done for the greater good of society. i. Punishment as striking a blow in the name of morality d. Why it's better for society to impose punishment rather than allowing for self-help: i. Practical effect would be disastrous otherwise; danger of cycle of vigilante violence. Dont want retaliation without due pro cess. ii. But: CJ system may be less accurate in determining guilt: 1. Destruction of eye-witness accounts and evidence over time; system doesnt always get questions of fact correct. iii. Moral condemnation by society: Crime as an offense against the community, while civil wrongdoings are only against individuals. Expressive Theory of Punishment: The messages we send [expressions] about crime are as important to society as the practical consequences imposed by punishment. a. Some things we deem morally culpable but not criminal or worthy of punishment. b. Sometimes we define a crime based on the aggregate consequences of that behavior at large; we want to send a message to potential future criminals that we dont tolerate that type of conduct in our society. i. Potential stigmatizing nature of having a criminal record, or idea that it shames a criminal gets at deterrence, but away from rehabilitation.

ii. All about protecting the community interest. Why do we need imprisonment? i. Wouldnt it meet our goals to just publicly condemn the action? Prison is costly to the state and the prisoners families. ii. But, expressive credibility of punishment needs proportionality : want the stigmatizing tool of imprisonment to be available. Key Ideas: Reason we think about punishment theory is that punishment means inflicting pain on people, so we need to somehow justify it to make it morally legitimate. a. Three questions that we need to address when discussing theories of punishments: 1. Is the social institution of punishment warranted? 2. What conditions are necessary for criminal liability and punishment in particular cases? 3. What form and severity of punishment is appropriate for particular offenses and offenders? b. Reasons why we punish divide into two categories: i. Forward looking: how it will deter future crime ii. Backward looking: focusing on what the person did in the past c. Expressive condemnation: law sends a message about the wrongfulness of conduct. Society thinks it's wrong for a criminal to elevate himself above the victim. Punishment as a way of restoring that balance. i. Can be expressed in consequentialist and non-consequentialist terms. ii. Helps to build social norms and change behavior in the long run. d. Why punishment matters: it matters how society defines crime. i. Different intuitions about appropriate punishments lead to different notions of what is criminal, and how criminal it is. ii. Also leads to different justifications and excuses (see DEFENSES) for crime iii. Weighs into sentencing: no concrete decision about which punishment theory is the best, so judges might weigh sentencing options based on these different theories. c.

Canons of Statutory Interpretation Prohibition on Common Law Crimes- No new judge-created common law crimes are allowed Limits on statutes 1. Must give fair notice (no ex post facto laws) 2. Can't deny due process to D Four ways to interpret a statute (FEDERAL ONLY, state courts are final authority on how to interpret state statutes): 1. Text of the statute (rebuttable presumption that text is constitutional) 2. Indicators of legislative intent: Can include goals/ structure of law, legislative history, prior judicial interpretations, common law, similar language in other provisions, assume words aren't superfluous. i. Fulfill legislative purpose, but give fair notice to D 3. Rule of lenity: If statute is still vague, courts define it narrowly. Strict construction. This is usually in favor of the defendant, but not automatic. 4. Void for vagueness: no plausible narrow reading that reaches only clearly covered conduct exists. Last resort. Principle of Legality: Prohibition on retroactive criminal lawmaking. Criminal statutes should be understandable to ordinary citizens. No crime without law. Person cant be punished unless her actions were defined as a crime at the time of commissi on. Idea of fair notice of the criminality of certain types of actions. 1. Cant be convicted of a crime unless it was a crime when you did it. a. Utilitarian rationale: Wouldnt serve a deterrence purpose if people are punished for things that werent crimes in the first place. Want people to be free to pursue their own happiness unless it directly conflicts with some principle society has already established b. Retributivist rationale: people arent morally blameworthy if it wasnt a crime when they did it [Legality principle as a RESTRAINT on Retributivist perspective] 2. Due Process and Ex-Post Facto rationales: [Ex post facto] constitution prohibits retroactive legislation and retroactive judicial lawmaking. [Due process] prevents courts from interpreting existing criminal statutes in ways that would be unpredictable to persons at the time of committing the act. 3. Is it there to protect people who are truly innocent or people whose actions would be elevated to a different, more serious crime based on the new law? Unclear. Lenity Doctrine: (also called Strict Construction) Judicial interpretation of ambiguous statutes should be interpreted in favor of the accused. Will often narrow the definition of the crime. A form of constitutional avoidance. Must be balanced with the obligation to vindicate legislative intent. Justices disagree on what degree of ambiguity triggers the Lenity Doctrine. Should be applied when courts can only guess what the legislature intended. (Muscarello v. US; Reno v. Koray). Rule of Lenity does not automatically permit a defendant to win. (Muscarello). Often used as a reason to overturn a conviction for other reasons that the court doesnt wish to disclose . Rule of lenity most likely to be used in favour of defendant when the crime committed is malum prohibitum, not malum in se. 4. Policy: Why we think people would be more on-notice of statutory law than common law? a. Codified law helps to reign in judges and hold them accountable. i. Issue of who is better at writing these codes: judges (who know law) or legislatures (who know their constituents and the issues in communities) ii. Maybe good to have legislature decide on the codes because they are democratically elected and are accountable to their constituents. But, unclear if legislatures are really representing the peoples interest, and Democracy isnt always a great check on state power. b. MPC Set up to codify the ideal penal code as developed by ALI. Motivated partly by lack of uniformity within the states, or coherence. Vagueness Doctrine: Criminal laws that are so ambiguous that they do not provide fair notice as to what conduct is prohibited may be struck down as void for vagueness. If statute is over or under-inclusive, and doesnt have broad literal meaning that is easy to determine, the n might be void for vagueness. Court decides, based on statutory interpretation, what the meaning is and then if that meaning is clear enough in the words of the statute. "No more than a reasonable degree of certainty can be demanded." (Boyce rule). Again, often used as a pretext for throwing out laws or reversing convictions decided on other reasons that the court doesnt wish to disclose. Cases

Muscarello v. US (lenity): Does "carries a firearm" include transporting a firearm in the glove box of a car? SCOTUS rules that there is not enough ambiguity to invoke the Rule of Lenity and this definition does include transporting a gun in a locked glove box. SCOTUS analyzes text and intent to come to this conclusion. In re Banks (vagueness): Since the peeping tom statute required the activity to be done "secretly" this implied that intent was required, which limited the statute to not include innocent conduct, and therefore provided notice to a person of ordinary intelligence. It is not overbroad to proscribe legitimate conduct. Chicago v. Morales (vagueness): Chicago city council passes an ordinance which prohibited gang members from loitering. This statute is void for vagueness because it affords too much discretion to the police and too little notice to citizens who wish to use the public streets. Scalia has a convincing dissent. He believes the citizens of Chicago should be able to deprive themselves of the freedom to hangout on street corners. "Court has no business second guessing either degree of necessity or the fairness of the trade."

Voluntary act or omission (Actus Reus) MPC 2.01: Requirement of Voluntary Act; Omission as Basis of Liability; Possession as an Act 1) A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is capable 2) The following are not voluntary acts within the meaning of this section: a) reflex or convulsion, b) bodily movement during unconsciousness or sleep, c) conduct during hypnosis or resulting from hypnotic suggestion, d) a bodily movement that otherwise is not a product of the effect or determination of the actor, either conscious or habitual. 3) Liability for the commission of an offense may not be based on an omission unaccompanied by action unless: a) the omission is expressly made sufficient by the law defining the offense or, b) a duty to perform the omitted act is otherwise imposed by law. 4) Possession is an act, within the meaning of this Section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession. Test:

1. Was the act voluntary? Was the omission voluntary? Was there a legal duty to act imposed on D or was the omission illegal by statute? 2. Did you have a choice/ choose to do the action? Or was it a result of sleep walking, reflex, hypnosis, unconscious? 3. Possession
o o Mens rea is usually knowledge Awareness of the drug is required to meet voluntary act [constitutes constructive possession, inferred from driver, owner of property, quantity, acting suspecious ]

Actus reus is the [voluntary] physical or external part of the crime and must be proved beyond a reasonable doubt. Omissions Negative Acts: Failing to act as a basis for liability. [omissions liability is disfavored] a. Overview: Usually omissions can court as acts only if a statute says they do; either a statute of general application or the statute defining the crime. Omissions only count if the D has an affirmative duty to act, such as one based on the special relationship between the D and the victim, or an assumption of care, or the D created the danger for the victim. Must be a legal duty. No legal duty to prevent or report crimes, unless one of the special sources of duty exists. b. Classic source of affirmative legal duty: if you put someone in a position of being dependant on you to take actions to protect them, and you fail to take such actions [omission], you will be held culpable. c. Policy: too slippery of a slope to impose duties on everyone to help everyone else out; but maybe, morally, we want to impose that duty. If some sort of established relationship, maybe we should require the person to aid. d. Why we dont criminalize for failure to help: Non-doings are more ambiguous than wrongdoings; harder to determine motives and culpability. Sometimes wellmeaning bystanders might make matters worse by intervening. Laws requiring people to do things might infringe on individual liberties. e. Bystander responsibility: majority(no duty to report crimes except child abuse if mandatory), Minority (failure to report certain crimes is a misdemeanor) i. People just walk by a crime scene and do not help out the victim. Should people have a duty to help? Maybe they will be put in danger or mis-assess a situation. Run the risk of making the situation worse. Ray Billingslea Case (no legal duty, omission): Conviction overturned because there was no statutory duty to take care of his mother under the law at the time. People v. Beardsley (moral duty, omission): Man cheating on his wife with mistress in hotel room, goes on bender, mistress takes a lot of pills and man told others at hotel to take care of her, and she died. Prosecution tried to convict him of manslaughter, saying he had a duty to act [to care for the mistress] and failed to meet his duty. Has to be a legal duty and not just a moral duty to act. Omission is a basis for criminal liability only if there was a legal duty to act that was breached.

Cases

Mental state (mens rea) MPC 2.02 (See attached): If mental state not specified in statute, reckless is the required mental state. Purposely: aim with intent. [natural and probable circumstances: juries may presume one intends the natural and probable consequences of actions] Knowingly: knowledge of a high probability, but no aim. Substitutes for willfully. o High probability satisfies willful blindness. Non-MPC jurisdictions apply willful blindness as a type of recklessness. Recklessly: Consciously disregard a substantial and unjustifiable risk. Need gross deviation from expected behavior. Objective, considering circumstances. Negligently: Not aware but should be aware of a substantial and unjustifiable risk. Need gross deviation from expected behavior. Objective. o Criminal negligence is gross negligence, a substantial risk Other mental states? Malice (purposefully, knowingly or recklessly); Wilfully (generally, under MPC, means purposefully or knowingly); Intentionally (often means purposefully or knowingly, but some statutes say it just means purposefully). Must consider Mens Rea for all components of a crime: the conduct, result, and attendant circumstances Act the nature of the forbidden conduct Result of the conduct a. [natural and probable circumstances: juries may presume one intends the natural and probable consequences of actions] attendant circumstances a. Knowledge is satisfied by D knowing with a high degree of probability. Willful can be substituted with knowledge. Test: 1. 2.

Is the statute a strict liability statute? (public welfare can be implied SL under common law but not MPC) What mental state is required? (If not specified in statute, MPC default is reckless, federal is knowledge).

Defense test 1. Was there an honest [subjective] mistake of fact? (this is a complete defense if it negates the required mens rea) 2. Mistake of Law: A misreading of the law (even an ambiguous law) is not a mistake of law. 1. Was there a reliance on a court opinion or an official statement by an agency interpreting the law (statute required)? 2. Mistake of law always a defense if it negates a mental state. [Affirmative defense under MPC 2.04(3)(b)] 3. Does Lambert exception apply? Was there sufficient notice of the law? (very rare, usually applies to obscure or very recent laws) 3. Given the mistake of fact as you perceived it, did you act as a reasonable person would? (objective) Definition Broad view: morally blameworthy state of mind, generally speaking. Narrow view: culpable mental state with regard to the social harm element of the offense. o Intent/Purpose v. Motive: Intent is what you knowingly or purposefully do, including the prohibited results you knowingly or purposely cause. Motive is why you do it. Motive is almost never an element of the crime; the law doesnt care why we did things. It cares what we did. Prosecut ors often discuss motive because they think juries are more likely to commit a crime if they understand why he might have wanted to do it. Intent (old common law) Common law definition: one intends not only those results that are the conscious object of the actor, but also those results that the actor knows are virtually certain to occur from his conduct, even if he does not want them to arise. MPC equivalent of purposefully or knowingly Natural and probable: one intends the natural and probable consequences of his actions... allows jury to infer, not presume. Transferred intent: the D's guilt is exactly what it would have been had the blow fallen upon the intended victim instead of the bystander. May be unnecessary because intent to kill could be sufficient instead of intent to kill a specific person. General intent: any mental state required that relates solely to the acts that constitutes the social harm. (an intentional application of force upon another) Specific intent: requires a intention to commit a future act, a special motive, or awareness to an attendant circumstance. (with intent to _____) Knowing v. reckless: level of certainty is the deciding factor. This is a question for the jury. Hierarchy of mental states: Set up in MPC 2.02(5) any lesser standard of care than described in the statute is also sufficient to create culpability under the statute.

Policy rationale: [R] purposefulness is especially bad because it says something nasty about D. How morally culpable do we think people are, based on their actions? Negligence is an exceptional basis for criminal liability: few statutes have negligence as the mental state; homicide does because we think death is the type of risk we want to incentivize people to avoid. Unless it is clear in the statute, a mental state provided at the beginning of the statute will apply to everything that follows it (rather than merely modifying the one verb that comes immediately before it) o MPC 2.02(4): if statute doesnt proscribe the culpability to a specific material element, it app lies to all material elements.**

Strict Liability Policy Justification (public welfare offenses and strict liability crimes) [U]- strict liability does not deter because you are punished regardless of mental state. If fines are low, may be treated as a license and not deter. May incentivize a very high level of care. [R]- it is unjust to punish a person who is not morally culpable. Dilutes moral force of the criminal law that was historically carried. Policy- cheap administrative costs. Maybe reflects community standards to punish for these crimes, but sometimes juries unwilling to convict without a mental state. Eliminating mental state may lead to a very slippery slope. There may be a due process problem as well. Court interpretation: extremely disfavored except for public welfare exceptions (MPC has no exceptions). Won't read it into a statute because of lenity doctrine. Mistake of fact v. mistake of law Mistake of fact negates the MPC mental state o Purpose- any mistake as to existence, knowledge- any mistake as to high probability, reckless- any mistake as to substantial risk, negligence- any reasonable mistake as to the substantial risk. SL: no mistake of fact defense, since no required mental state. o Given the mistake as you perceived it, did you act like a reasonable person? Objective standard. Mistake of law: ignorance of the law is not excuse, because knowledge of the law is not a material element of the crime. If it is, ignorance is a defense. o Lambert: if you didn't have fair notice of the law's existence, you have a due process defense. (usually omission or obscure law) o The MPC: denies mistakes based on the penal law, but mistakes about other laws (property law, contract law, whatever) are considered mistakes of fact or law that are a valid defense. We want to punish people who do bad things by breaking criminal law, but b/c property law, etc. don t have the same moral expressivity that the criminal law does, mistakes violating them lack the same level of moral culpability that can still be punished after mistakes of criminal law. o Mistake of law def. allowed when: 1) the statute says mistake of law is a defense; 2) knowledge is part of the offense; 3) when the defendant was relying on an official statement that was misleading (MPD: and was later deemed erroneous or invalid). Cases

Staples v. United States (strict liability, need to specify): D did not have required notice for a strict liability crime. Strict liability is disfavored and the common law generally requires a mental state unless if the public welfare law. Congress needs to clearly state a statute is a strict liability crime. Garnett v. State (strict liability, specific omission): this case involved the statutory rape case by a mentally retarded individual. Since the legislature put a mental state requirement in another part of the statute, their specific omission of a mental state constituted strict liability. Some states only require strict liability for very young girls, but require a mental state for older girls. People v. Navarro (mistake of fact): D convicted for stealing what he thought was abandoned government property. An honest mistake of fact or law is a defense when it negates a required mental element of the crime. Subjective standard. Mistake of fact not a defense for strict liability. People v. Marrero (mistake of law, misreading): A federal prison offer thought he was exempt from a no carry law because peace officers were exempted. Mistake of law is only a defense when relying on a court opinion or official interpretation by an official or agency (statute required). Misreading not a defense. Cheek v. US (willful, attendant circumstance, mistake of law): Cheek is part of a crazy anti-tax group and doesn't pay his taxes because he doesn't think wages are considered income. An honest but unreasonable belief can be enough to negate knowledge requirement for an attendant circumstance.

Causation Test: 1. Factual causation: Was the act a but-for cause of the result? 2. Legal/ proximate causation: Was the act a proximate cause of the result (see test below)? 3. Was there a superseding cause that negates the proximate cause of the result? (see Dressler test) 1. But-For Test. "Would the injury more likely than not (50%) have occurred but for D's conduct?" Use unless there are multiple sufficient causes (see below), in which case use the substantial factor test. Ds speeding was but-for cause of Ps leg breaking because but -for speeding, D may have been able to stop D cannot be held liable for conduct, even if negligent, if Ps injury is to unusual, too far removed from the type of harm to be anticipated from Ds negligence to warrant liability. 1. Directness Test (Polemis): Did Ds actions directly cause Ps injuries? Later dropped in favor of the foreseeability test. 2. Foreseeability Test (wagon mound). (majority test)"Was the injury the foreseeable consequence of D's negligent conduct?" (type of harm must be foreseeable, but not manner/extent). i. Was the risk reasonable foreseeable? ii. Was Ps injury the type of harm that was reasonably foreseeable? (just has to fall within the scope of the risk) iii. Was the accident caused in a way which could have been foreseeable? a. What DOES have to be foreseeable: that negligent conduct will cause an injury. b. What DOES NOT have to be foreseeable: (a) extent of harm (plaintiff dies instead of getting bruised), (b) precise manner in which harm came about (wind blows gun off table, it discharges and wounds child), (c) that particular plaintiff would be injured (just has to be part of a class of foreseeable injured parties), and (d) any additional injuries that occur in the course of treatment as a consequence of ordinary negligence or infection (P gets hurt in ambulance). 3. Scope of the Risk: "Was the injury a realization of the risk that made the conduct negligent?" a. Level of Generality. Courts can manipulate the "scope of the risk" by tweaking the level of generality (Jolley - more general risk of "children injuring themselves after meddling with boat" vs. more specific risk of "children falling through rotting boards). b. Danger invites rescue: if you were neg and someone is injured while trying to rescue the person in peril because of you, it is foreseeable that people will try to rescue. Intervening Cause. A force that takes effect after the defendant's negligence which contributes to that negligence in producing the plaintiff's injury. Intervening causes are either superseding causes (defendant relieved of all liability) or non-superseding causes (defendant and the intervening wrongdoer are both subject to liability). Dressler's Superseding Cause Test. Relieves first breach from liability. Policy rationale: provides a mechanism to limit liability for a minimally culpable party. Less important in this era of comparative fault, and apportioned damages. 1. De minimis: if intervening cause is minor, it doesn't break the chain of causation. 2. Intended consequences: if D got the result he was trying to bring, then the chain of causation is not broken. 3. Omissions: another person's omission will never break the chain of causation. 4. Foreseeability*: Most important factor. [objective] A coincidental intervening cause will not break the chain of causation unless if it was foreseeable. An intervening cause that is responsive will establish proximate cause. Hard to distinguish between these two. a. Medmal is responsive, acts of nature are coincidence, a third party response to the act is responsive, subsequent accidents are usually responsive 5. Apparent safety: When victim reaches a position of apparent safety, the chain of causation is broken. 6. Voluntary human intervention: The chain of causation is broken when a victim making a free, deliberate, and informed decision leads to an injury. 7. Other? of the defendant's negligence, even if the intervening cause itself was not foreseeable? o Concurrent Causes. When two events each necessary, but-for causes of the injury, occur at approximately the same time. Dont count as superseding causes. Cases People v. Rideout (proximate cause): Introduces Dressler's six factor test. Voluntary human intervention and apparent safety allow the court to conclude that the drunk driving was the proximate cause of the victims death. The victim made the decision to return to her car and that was what killed her. DeSean McCarty (proximate cause): police offer who dies during the police chase was charged to the Defendant under the felony murder rule that holds people strictly liable for murders that occur during the felony

Homicide [intentional]: murder MPC 210.2: Murder 1) Except as provided in Section 210.3(1)(b), criminal homicide constitutes murder when: a) it is committed purposefully or knowingly; or b) it is committed recklessly under circumstances manifesting extreme indifference of the value of human life. Such recklessness and indifference are presumed if the actor engaged or is an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape. 2) Murder is a felony in the first degree. Test:

Premeditated murder: an intentional killing that was planned. Poisoning, lying in wait, etc. are always premeditated killings by nature. o Carroll Approach: Premeditation is a legal fiction; court determined that premeditation can occur in the time it takes to form intent. So pulling the trigger to kill = premeditation. o Guthrie-Anderson Approach: Premeditation is given its psychological meaning, requires some sort of showing to suggest premeditation such as buying a weapon, casing the scene, motive, etc. that could suggest premeditation. MPC o Committed purposefully or knowing, or o Recklessly with extreme indifference to human life. (can be assumed, this is where Felony Murder fits into MPC)

Common law: Killing of another person; broad category, encompasses many acts. But two major divisions: Murder and Manslaughter. Murder: at common law, required malice aforethought and included four types a. Intent to kill: corresponds to purposeful MPC mental state or knowledge state b. Intent to cause serious bodily harm: purpose or knowledge that what you will do will create serious bodily harm; result element is different than the intended result element. Intended to cause serious harm, but actually caused death c. Depraved Heart Murder: similar to recklessness, because its about being aware of a risk and going forward anyway, but more than recklessness; almost extreme recklessness. Wanton and willful disregard of an unreasonable risk. d. Intent to Commit a Felony: felony-murder rule. Strict liability for homicide committed during the course of committing a felony. i. Only some states have the distinction between 1st and 2nd degree intentional murder Cases State v. Guthrie (premeditation): D and a co-worker got in a fight and D pulled out a knife and killed his co-worker. Court used Hatfield jury instructions to allow the jury to decide if the homicide was premeditated. A new trial was ordered for D. You want to punish "hot blood " homicides less than regular homicides. Anderson: Man brutally murders a young girl out of sexual frustration, stabbing her over 60 times and getting blood all over the house. The frenzied nature of the act suggested that there was no premeditation.

Homicide [intentional]: voluntary manslaughter MPC 210.3 Manslaughter 1) Criminal homicide constitutes manslaughter when: a) it is committed recklessly; or b) a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor's situation under the circumstances as he believes them. 2) Manslaughter is a felony in the second degree. [I'm just an asshole doesn't count, idiosyncratic moral values excluded] Test: 1. Voluntary Manslaughter a. How grave was the provocation (subjective)? Was it reasonable for a person or ordinary self-control to lose control (objective)? [see alternate tests below] b. Was the killing done in the heat of passion? c. Was there adequate time to cool off? d. Was there a causal connection between the provocation, the passion, and the fatal act? (just factual, not a proximate test) 2. EED: Did D act under the influence of EED? Was there a reasonable explanation of excuse as evaluated from the viewpoint of a person in the actor's situation under the circumstances as he believes them to be? [subjective + varies] 3. Who is the reasonable man? good to discuss Common law: Killing of another person; broad category, encompasses many acts. But two major divisions: Murder and Manslaughter. A. Manslaughter: wasnt always distinguished in common law, but it is now seen as a residual category for criminal homicides without malice aforethought; Common Law sees distinction between voluntary and involuntary manslaughter, and distinguishes between the two for sentencing purposes: a. Voluntary Manslaughter: heat of passion or provocation homicide that would typically be murder except culpability is reduced. (EED included in some states) b. Involuntary Manslaughter: resulting from unduly dangerous activity or from otherwise lawful activity; reckless or grossly negligent killing that does nt reach the level of extreme recklessness that would raise it to depraved heart murder. Provocation (key debate is whether D's individual circumstances should be taken into account when assessing whether his actions were reasonable) Common law: provocation was limited to: 1) walking in on a cheating spouse [few now recognize this]; 2) mutual combat; 3) physical assault. Girouard [objective]: those acts that are calculated to inflate passions of a reasonable man. Words are never enough. Policy: what does it mean to inflame the passion of a reasonable man such that a reasonable man would commit a killing? How closely should the D be held to this standard of a reasonable person? The only reason we have this distinction is because human are not perfect, and punishment for murder was death in the common law. Can provocation be a repeated event or one large event? [R] depends on the idea that we can control our behavior. [Fem] this rule just lets men get lesser punishments for killing their wives. Also, MPC focuses more on D's characteristics so the argument that victim had it coming is less plausible. EED (Patterson): an action influenced by an EED is not one that is necessairly spontaneous. Instead it may simmer in the subconscious and then inexplicably arise. Reasonable man standard Policy [pro subjective]: Courts allow sex-based and age-based generalizations about an individuals ability to exercise self -control but not usually ethnic or racial generalizations. Maybe if people are less able to control themselves, they didnt make a true choice to do something wrong and shouldnt be as morally deserving of punishment. Peoples life choices are heavily determined by factors outside of their control; not fair to punish them for tho se factors. Policy [objective]: Shouldnt allow people with bad values to get excused for having those values/impulses; need to draw the line somewhere. Core free will assumption of criminal law is that people should be expected to control their actions. [assumption breaks down at some points, like with in sanity defense, but shouldnt break down here] o Should there be a distinction between addiction and voluntary use that impacts self-control? Diminished responsibility doctrine appears in criminal law; maybe it needs to impact how we look at consumption. Cases Girouard v. State (provocation, words): words can constitute provocation if they are accompanied by conduct indicating a present intention and ability to cause D bodily harm. This court uses an objective standard for provocation. Attorney General for Jersey v. Holley (provocation, alcoholism): Results in instruction outlined above. Alcoholism is not to be taken into account when the jury is applying an objective standard. People v. Casassa (MPC, EED): D casually dated victim and kept going to her place after they broke up, and would listen to her with other guys. He eventually killed her and claimed her actions caused him EED. Jury is not required to find mitigation on any set of facts, but can do so. MPC= subjective + objective.

Homicide [unintentional]: accidental murder MPC 210.2: Murder 1) Except as provided in Section 210.3(1)(b), criminal homicide [requires negligence, 210.1- most states don't adopt this limit] constitutes murder when: a) it is committed purposefully or knowingly; or b) it is committed recklessly under circumstances manifesting extreme indifference to the value of human life. Such recklessness and indifference are presumed [jury can infer] if the actor engaged or is an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape. 2) murder is a felony in the first degree. Test: 1. Common law a. Was there a homicide? MPC abandoned heart: Was there a conscious disregard of a risk of death AND callousness toward the value of life? i. Was there express or implied malice toward the value of human life? Does the implied malice satisfy the Phillip's test? b. Did the homicide occur during the perpetration of a felony? CL- SL, Other- in the abstract, was the felony inherently dangerous, or Hybrid approach i. Does the merger rule exclude the felony [arson and rape don't merge]? ii. If both IDF and merger used, the only felonies inherently dangerous to life but that do not constitute homicide are left. 2. MPC: Committed purposefully or knowingly, or recklessly with extreme indifference to human life(jury can infer) [Depraved Heart Murder] Implied Malice Mental State (key necessary to meet the 1(b) requirement of murder under the MPC) Thomas: a base, anti-social motive and with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death. Phillips Test: an act, the natural consequences of which are dangerous to life, which act was deliberately performance by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life. (high probability of act causing death is objective, conscious disregard is the subjective mental state) o High probability only attaches to the act element, not the mental state o [R] want to punish people more who have contempt for human life. [U] maybe will deter people from acting with contempt toward human life. Watson: decided Thomas and Phillips were the same test, but Phillips was less confusing for juries. Policy: Special emphasis that the community places on the sanctity of life. Causing death is just that much worse than causing other harm. But, if there is a serious risk of maiming, maybe you should know there is a serious risk of death. Including conscious disregard of serious bodily injury might be the best way to reach the deterrence goals. Or, maybe serious bodily harm is harder on society than death, in the long run. Gross negligence policy [pro gross]: Serves no deterrence purpose, and from [R] perspective, Ds arent as morally blameworthy because they didnt perceive the risks associated with their conduct. Maybe the Williams conduct would have met a gross negligence standard anyway and we dont rea lly need to set the bar so low. [con gross]: Want to encourage people to be careful, motivate people to take better care. Felony Murder: any homicide committed in the perpetration of committing or attempting a felony is murder (strict liability) Enumerated Felonies= M1, otherwise M2 Policy: felonies used to be much more severe than they currently are, so this rule made more sense. Felonies today are any crime that carries potentially more than a year of imprisonment. Most jurisdictions have 100's of felonies. Punishment: majority rule is first degree murder, [minority] MPC is the equivalent of a depraved heart murder, [minority] depends on underlying felony "In the perpetration of" means basically any connection (escape, attempt, accomplice). Police can kill people too or if your accomplice is killed Modern limits on felony murder rule: [some states apply both. Everything is excluded except inherently dangerous felonies that don't constitute homicide in themselves] o Limits on what felonies qualify: Federal: crimes carrying more than a year of potential imprisonment. MPC limits felony to homicide (which requires negligence), but most states didn't adopt this limit. o Merger rule: felony has to be in addition to the felony used to cause the battery/ assault. Prevents prosecution from taking every murder and dispensing with mens rea by charging felonious assault that results in death as felony murder. ENUMERATED FELONIES NEVER MERGE o Inherently dangerous tests: 1) always included in the definition of a felony (CL) OR, 2) done in the abstract looking at the elements of a crime so dangerous does not turn on the individual facts. Yes: kidnapping, manuf. methamphetamine, shooting an inhabited house. No: false imprisonment, grand theft, child abuse, prison escape o Assaultive Felonies Always Merge- California Sup. Ct. Based on the elements of the crime, not specific facts. Not an assaultive felony if there is any way to commit the crimes elements in a non-assaultive way. UNLESS ENUMERATED- EFs never merge Cases People v. Knoller (disregard for life): the dog case. Jury convicted on ground of second degree murder. Owner appealed because owning the dangerous dog was only disregarding a risk of serious bodily injury, not a risk of death. A risk of death is needed for a murder conviction. Some probability of death + antisocial motive. People v. Fuller (Strict liability): Since the statute included burglary under felony murder, this was a strict liability crime. This burglary was not inherently dangerous.

People v. Howard (inherently dangerous): Is driving with a willful or wanton disregard for the safety of persons or property while fleeing from the police inherently dangerous? No, intent of leg. when expanded felony to include more than inherently dangerous acts. For jury to decide if this was reckless + malice. Homicide [unintentional]: accidental manslaughter MPC 210.4: Negligent Homicide 1) Criminal homicide constitutes negligent homicide when it is committed negligently. 2) negligent homicide is a felony of the third degree. Test: 1. 2. 3. 4.

[jx] MPC: 2 different homicide theories for reckless and negligent killings [jx] Recklessness for manslaughter [jx] Gross negligence for manslaughter Misdemeanor manslaughter: analogous to felony murder

MPC Homicide Hierarchy Intentional murder Extreme indifference (felony murder is a variation of this) Manslaughter (reckless) Negligent homicide

Intentional Killing M1 M2 Premeditated Murder Unpremeditated Adequate Provocation + Heat of Passion Cooling Time

Man

Unintentional Killing Felony Murder (Enumerated felonies) Gross Recklessness Depraved Heart/Depraved Indifference Felony Murder (Non-enumerated felonies) Gross Negligence recklessness (negligence standard used only in Welansky, night club owner)

Defenses 2 Definitions: 1) [loose] any argument that could lead to an acquittal. 2) [narrow/ affirmative defense] set of facts that will result in acquittal even if prima facie case is made. Partial defense: results in a less serious crime Complete defense: no crime results Sources: statutes [crimes will always be in statute], and common law Types of defenses: 1. Failure of proof: an element of a crime was not proven. a. Mistake of fact: a defense if it negates the mental state of the crime b. Many mistakes of law arguments also concern negation of the mental state. c. Alibi [presumption]: negates all elements of a crime. 2. Justification: offense was justified to prevent a greater harm. Society praises these things as right thing to do. [situation based] a. self-defense, self-defense of others, necessity 3. Excuse: special conditions reduce or eliminate the actor's culpability- forgiveness. Concession of human frailty that leads to sympathy or forgiveness [individual based] a. Insanity, duress, provocation/ EED (partial defense to murder) 4. Other a. Statutes of limitation, immunities, constitutional Justification v. excuse Expressive difference: praise v. forgiveness Right thing to do v. frailty of human nature Practical difference: justification applies to the action of the crime, but excuse applies to the defendant (not necessarily co-defendants) Burden of proof (factors to consider) Access to information, allocation of risk (type I v. type II error), social interest v. individual interest Affirmative defenses: state does not need to disprove all affirmative defenses to satisfy Winship rule!! [Patterson] Most states require D's to prove defenses by POE (manslaughter is the exception- must be proved BARD by prosecution) Production: amount of evidence necessary for a jury instruction, and who needs to bring it up. Persuasion: ultimate burden of proof once the issue is raised. Cases

Patterson v. New York [burden of persuasion]: This case involves the allocation of the burden of persuasion between Plaintiff [prima facie case] and Defendant [affirmative defense]. Is manslaughter a reduction of murder or a separate crime? Separate crime. The state can't require a defendant to prove his innocence but if the state is not required to provide a manslaughter crime, they are not required to either make the reduction either an affirmative defense or a separate crime. Large deference to the legislature when determine if crime shall include: not x is an element, or x is an affirmative defense.

Self- Defense/Defense of Others [justification] Non-deadly common law test 1. D must honestly and reasonably [objective] believe the threat is immediate, unlawful 2. and that the response is necessary [more than words required, except threat] , proportional, and 3. D can't have been the aggressor. [Clean hands rule: if D started fight, can't ever claim self-defense] 4. Defense of Others: If A has the right to use self-defense, B may use same force to defend A. B substitutes in place of A. Deadly force common law 1. D must honestly and reasonably [objective] believe the threat is deadly, immediate, unlawful [sleeping is never immediate-- Norman] 2. and that the response is necessary, and [CL imposes no duty to retreat before using deadly force] 3. D can't have been the aggressor. [escalation: D is aggressor if he is the first to use deadly force][Clean hands rule: if D started fight, can't ever claim self-defense] 4. Defense of Others: If A has the right to use self-defense, B may use same force to defend A. B substitutes in place of A. Who is the reasonable person discussion?: What can be considered?: The circumstances facing the defendant or his situation. Physical movements of the potential assailant, relevant knowledg e that the defendant had about that person or persons, the physical attributes of all people involved, including the defendant, any prior experiences he had which could provide a reasonable basis for a belief that another persons intentions were to injure him or use deadly force. What CANNOT be considered: Prejudices of the defendant, facts not possibly known to defendant, etc. MPC 3.04 Use of Force in Self-Protection 1) Use of force justifiable for protection of the person. Subject to the provisions of this section and of section 3.09, 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. 2) Limitations on justifying necessity for the use of force. a) [list of limitations omitted] b) the use of deadly force is not justifiable under this section unless the actor believes that such force is necessary to protect himself against death, serious bodily harm, kidnapping or sexual intercourse compelled by force or threat; nor is it justifiable if: i) [the actor provoked the use of force], ii) the actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action that he has not duty to take except that: [no duty to retreat from dwelling or place of work, or if actor is a public official justified in using force]. c) Except as required by paragraphs a and b of this subsection, a person employing protective force may estimate the necessity thereof under the circumstances as he believes them to be when the force is sued, without retreating, surrendering possession, doing any other act which he has no legal duty to do or abstain from any lawful action. -Others: allows for innocent mistakes when defending others. Otherwise same as number 4 of common law test. MPC v. Common law MPC: immediately necessary to act, CL: threat is immediate. MPC: subjective, CL: objective MPC: deadly force can be used to respond to non-deadly but serious threats, CL: deadly force can only be used on deadly threats. MPC: (14 states) duty to retreat. (16 states) no duty to retreat, CL: no duty to retreat. Mistake of fact: CL (no defense), modern majority (ok if reasonable), MPC (ok, reasonable from subjective point of view) Retreat requirement, deadly force (in 14/30 states that adopted MPC, CL: no duty to retreat) 1. Are you in a jurisdiction that requires a duty to retreat before using deadly force? You have duty to retreat if: a. D reasonably believes he can retreat to complete safety b. D is not in his own home or workplace 2. There is a high threshold here: P must prove knowledge of complete safety. 3. Stand your ground: no duty to retreat anywhere, against unarmed home or car intruders, and to prevent serious bodily harm or forcible felonies. Battered Woman Syndrome in Self Defense: Even where the science and psychology of BWS is not admissible as a defense, repeated beatings and a history of abuse alone is relevant, since it lends evidence to the defendants belief of the threat of imminent ha rmshe would know. Similar application in Goetz as previous muggingsit helps explain why he perhaps recognized something as a mugging where a reasonable person wouldnt realize it was.

BWS is also important to the jury, when allowed, to explain why defendant never left her partner, so they assume she is lying about the abuse because otherwise she would have left had it been bad. Jury might assume she is lying about this, so is lying about everything she says. BWS is sometimes argued on a more controversial groundthat there is a mental deficit caused in defendants by BWS that should change the standard of reasonableness to include the mental deficiency caused by BWS: a reasonable battered woman standard. Cases: State v. Norman (immediate, CL): abused spouse syndrome does not constitute an immediate necessity to justify deadly force. Killing someone while sleeping is never self-defense.

Duress and Necessity Duress v. Necessity Duress is an excuse and necessity is a justification Duress usually results from force of man and reflects human frailty, and necessity results from force of nature and promotes the general welfare Duress has no mental state so it is hard to deter. Necessity has mental state but society is encouraging the action Duress does not have a lesser evil requirement Duress usually requires human coercion via threats of serious violence, but necessity is generally brought about by acts of nature. Necessity (MPC 3.02 Justification generally): 1) Conduct that the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that: a) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged; and b) neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and c) a legislative purpose to exclude the justification claimed does not otherwise plainly appear. 2) When the actor was reckless or negligent in bringing about the situation... necessity is unavailable for any reckless or negligent mental state crime. Necessity Common Law Test (Objective, evaluate using info available at the time) 1. Immediate and dire evil 2. No adequate alternative 3. Proportional response 4. Necessity not D's fault 5. Not an intentional homicide 6. Mistake of fact: D must honestly and reasonably believe the facts establishing the defense. Differences between MPC and CL MPC assesses from D's perspective instead of objectively. No imminence requirement in MPC. MPC doesn't bar defense for fault (except when mental state of crime is reckless or negligent crimes that create necessity) MPC allows a complete defense for intentional homicides. [R] Unrealistic to expect someone to take their own life. Duress (MPC 2.09 Duress): 1) It is an affirmative defense that the actor engaged in the conduct... because he was coerced to do so by the use of, or threat to use, unlawful force against his person or the person of another, and a person of reasonable firmness would be unable to resist. 2) Defense is unavailable if actor recklessly placed themselves in the position, or negligently placed themselves in the position if negligence establishes culpability for crime charged. 3) No presumption that woman acting in presence of her husband is coercion. 4) Duress Common Law Test (Objective, evaluate using info available at the time) 1. Another person threatens imminent death/ serious bodily injury 2. Well-grounded fear (both subjective and objective) (such that a man of ordinary fortitude would yield to the fear) 3. No reasonable escape 4. Situation is not D's fault (judged on information available to D at the time) 5. Not an intentional homicide Differences between MPC and CL MPC is complete defense for intentional homicides, not in common law. [R] Unrealistic to expect someone to take their own life. Instead of escape and fear, uses reasonable firmness standard No imminent requirement in MPC, and threat just needs to be unlawful force. Cases: US v. Contento- Padron (Duress): The threat to his family was deemed credible and immediate because the drug lord knew personal information about D. The police were corrupt and fleeing the country with a family was not an option. He should have been permitted a duress defense. Dudley and Steven (necessity, CL): Threat of starvation while on a boat. Still no justification for homicide, you are expected to take your own life first.

Incapacity defenses [excuse] 1. Infancy (complete defense for all crimes) <7 is never responsible, 7-13: rebuttable presumption of not responsible, >/= 14: responsible 2. Diminished Capacity: 4 Approaches. Failure of proof defense, govt cant prove mens rea. Examples of DC: retardation, mental illness, etc. that dont rise to insanity. 1. Brawner (MPC): Admissible whenever it is logically relevant and tends to defeat a mental element of the crime 2. Arizona: Clark: Expert testimony on mental capacity due to disease/defect is never allowed to rebut mens rea, even if logically relevant. Can use observational testimony from those around D, including from an expert interviewing him, but must be based on state of mind, acts, and observations, not professional opinion. 3. McCarthy (Federal Approach): Only admissible to defeat specific intent crimes, and ONLY if there is a lesser included offense that can be charged instead. 4. Wetmore: Allows mental health evidence to defeat specific intent, even if there is no lesser included offense. 3. Voluntary Intoxication (Veach) 4 approaches to allowing evidence of intoxication as defense: 1) Available, but only for specific intent crimes; legislature limited this to mens rea requirement, not malice (Hood case) 2) Rejects evidence on the issue of mens rea altogether; defendant cant rebut prosecutions mental state proof with evidence of intoxication even when it is relevant (Montana and a dozen states). Intoxication is only allowed for premeditated murder to rebut premeditation, also allowed for permanent mental impairment caused by alcohol damaging brain. Otherwise, not admissible. Public safety demands that there shouldnt be a defense since drunken c onduct too harmful to society. Perhaps allowed at sentencing (New Jersey: Stasis) 3) MPC 2.08 Intoxication: is a complete defense if it negates an element of a crime. No distinction between general and specific intent crimes. If you would have been aware of the risk had you been sober, then you are regarded as being reckless. Redefines recklessness. 4) German Approach: Create a separate crime out of committing a wrongful act after recklessly or negligently getting drunk. Majority: no intoxication defense. 3. Involuntary Intoxication: Almost all jurisdictions recognize inv. Intox defense, but it is rarely successful. Affirmative defense typically. 4 scenarios. 1. Forced to knowingly ingest an intoxicant, or being drugged by another individual 2. Pathological intoxicationgrossly excessive intoxication considering the amount of the intoxicant, defendant had no way to know of his extreme susceptibility. 3. Intoxication by mistake 4. Unknowingly intoxicated by a prescription drug What effect must the intoxicant have? D has to establish that the effect of the intoxicant rose to the level of temporary insanity he lacked the substantial capacity to appreciate the criminality of his action or absence of the capacity to conform to the law. Even if D claims he wouldnt have performed an act while sober, so long as he has the required mens rea (so long as his intoxication didnt negate the required MR) there is no defense. 5. Insanity (affirmative defense in most states): Policy: Very unlikely to convict anyways, and it is easier for a D to be committed. [R] no moral culpability, [U] can't deter, too many resources needed to lock up o How do you draw line between control and no control? What is substantial capacity? Categories of impairment: o Cognitive (M'Naghten): nature, wrongfulness, criminality o Volitional: impulse control M'Naghten Test (majority) o D was laboring under a defect of reason, from a disease of the mind, such that: 1. D did not know the nature and quality of the act that he was doing, or; 2. If D did know what he was doing, he did not have the capacity to know what he was doing was wrong. o Problems: All or nothing, too unrealistic. Requires no knowledge of the wrongfulness of conduct, which is different than the MPC approach that recognizes that an individual can have the ability to distinguish between what society tells him is right and wrong without being able to internalize that to understanding Irresistible Impulse Test o D is irresistibly [totally unable to resist] driven by an insane impulse [sudden]. o Problems: only works for sudden explosions, can't build over time. MPC 4.01 (14 states) o As a result of mental disease or defect, D lacked the substantial capacity to: 1. Appreciate the criminality [wrongfulness] of his conduct, or; 2. Conform his conduct to the requirements of the law

o Thoughts: covers volitional conduct more than M'Naghten test. Substantial capacity is vague, discussed below. 3 views on what it means to appreciate [wrongfulness], it has a moral element 1. Conduct is not wrong (personal standard), easiest standard for D 2. Society approves the conduct, hardest standard for D 3. If society had facts that D has, society would approve conduct (adopted in State v. Wilson), also good for D 4. 1 and 3 difference: no dispute on the facts, delusional view of society. Deific command covered under wrongfulness

Cases

U.S. v. Veach (intoxication, specific intent): The individual had intent to threaten but did not have the intent to threaten for the specific purpose of intimidation. Intoxication here served as a defense against specific intent. Egelhoff (intoxication, evidence): it is constitutional for states to pass laws restricting the use of intoxication evidence at trial [plurality opinion]. State v. Wilson (defines wrongfulness): D may appreciate criminality, but truly believes that society would agree with him if it has his facts. Deity option.

Attempt [inchoate crime] Inchoate crime definition: these are crimes before the intended object is achieved. Causation is not necessary to prove. Attempt: try and fail to commit a crime, but if you are successful, the inchoate crime merges with the final crime. In majority of jx, the punishment is less than the completed crime. Policy: punish less because a person is less morally culpable, and it is worse for society for them to follow through with the attempt. a. Why punish attempt crimes if they dont cause the same social harm? Its not really about deterrence, but more giving the law enforcement a basis to intervene before the crime is completed. Some say punishing in absence of social harm is unjustifiable. i. Retributive: Still an immoral decision being made, and person has a culpable mental state. ii. Deterrence: Conviction for attempting a crime might deter people from even trying or moving towards commission of a crime. Makes someone think twice; about weighing of risk of getting caught and risk of getting away with it against risk of being successful and risk of being unsuccessful. If you punish people who get caught but arent successful, it tips the scale to the negative. The only time you wont have any negative weight is if you dont attempt at all. iii. Incapacitation: Dont want someone with a criminal mind on the loose in society. iv. Expressive: Might want to condemn them, and make a statement that attempting to do something bad is still bad in and of itself. Mens Rea of act: MPC: knowledge (complete), purpose (incomplete); Common Law: intent (usually purpose). o Complete attempt: the intended act was completed but the result element was not achieved. (fired gun but missed) o Incomplete attempt: intended act, but have not completed it yet (stopped by police). Mere preparation is not a crime because it is hard to infer intent, and people still have time to make the right choice. Mens Rea of Result: Same mens rea as the underlying crime. Mens Rea of attendant circumstance: keep the mens rea of attendant circumstances for original act. MPC declines to address this. Attempt Test 1) Did D have the requisite mental states? Did D meet act requirement? Was the act preparation or an attempt? ...see below tests. 2) Unequivocal act test (Miller): the act itself has to be enough to clearly infer intent, and act cannot be deterred without outside influence. 3) Sliding scale (luna, stokes): evidence of intent reduces the need for the act to be equivocal. 4) Dangerous proximity (Rizzo): need to have evidence of intent and D has to be close enough to make society nervous. 5) Substantial step (Reeves, similar to MPC): if we have evidence of intent, did the actor take a substantial act toward doing the crime? 6) MPC 5.01: Criminal Attempt (substantial step, allows police to apprehend early) a. Purposefully engages in conduct that would constitute the crime if the attendant circumstances were as he believed them to be, OR b. When causing a particular result is an element of the crime, he does or omits to do anything with the purpose of causing or with the belief that it will cause such result, OR c. Purposefully does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in the offense. [substantial includes: lying in wait, enticing, reconnoitering the place of contemplated act, unlawful entry, possession of materials that are specifically for an unlawful use, soliciting an innocent agent, possessing unlawful materials near place] 7) Was there a double failure in the attempt (no bullet and stopped by police before pulling trigger?)- still an attempt. Cases

People v. Gentry (attempted murder, purpose): The mens rea for attempted murder is purpose (intent). No other mental states are valid. You can't attempt reckless murder and risky behavior does not constitute attempted murder. Poured gasoline on the body of wife, and it ignited later... he did not intend to kill her. Miller (unequivocal act): Act itself has to be enough to clearly infer intent. Walking in field with loaded gun is not enough, needs to raise it. Stokes (sliding scale): Act in furtherance of intent, intent can be established outside of the act. Luna (sliding scale): an act done toward commission of a crime may be sufficient for an offense, even if act is not equivocal. Rizzo (dangerous proximity): Driving around town looking for a particular victim to rob. Were not close enough to be within dangerous proximity. Reeves (substantial step): The students putting their poison next to the purse was enough evidence of a substantial act toward the intent. Williamson (preparation): A murky twilight zone exists between acts of preparation and perpetration.

Impossibility and Abandonment [Defenses for attempt] CL Factual Impossibility (not a defense): would be illegal if facts were as D perceived them. Pick pocketing an empty pocket, shooting an unloaded gun. [R] morally culpable mental state. [U] can try to deter/ reform people from thinking they are committing crime CL Legal Impossibility (a defense): You think something is illegal when it isn't. You can't be held to an imaginary legal standard. Sleeps with a 17 year old thinking AOC is 18, but in fact it is 16. [R] no moral culpability of specific crime. [u] not an effective use of resources to deter, but maybe need to deter people from placing personal views over society views. CL Hybrid Legal Impossibility (Not recognized in most jx) : includes both a mistake of fact and law. (actually factual uncertainty trying to pose as legal) pick pocketing a statue. Shooting a dead person thinking they are alive. Impossibility Test 1) Common Law: see above tests. Mistake about what the law is, or about a fact of the situation? 2) MPC 5.01(a) Criminal Attempt: purposely engages in conduct that would constitute the crime if the attendant circumstances were as he believes them to be. a. Factual impossibility is not a defense. Abandonment (jx divided if this is a defense, if not then jx draws weird lines btwn preparation/ act): What constitutes abandonment differs. Policy: [U] want to maximize deterrent effect. Not worth it for society to prosecute until act is almost complete. [R] not culpable until act almost attempted. Common Law (some): appears to be able to abandon an incomplete attempt before you are caught. Uses preparation/ act to decide when you can abandon. (McCloskey) MPC 5.01(4): abandonment is an affirmative defense if abandonment is 1) complete and 2) voluntary. o Complete: does not include postponing until later. o Voluntary: change in circumstances that makes it harder to be successful, or easier to get caught, is not voluntary. Conspiracy v. Attempt 1) Conspiracy, allows you to stop it at the very early stages (no overt act requirement) 2) No merger rule with conspiracy o Conspiracy is more likely to succeed, less abandonment due to peer pressure, crimes can be more complex, and the crimes tend to escalate. o Doesn't address the fact that it is more likely for someone to expose the plan. 3) [R] drawing more people into a crime makes you more morally culpable 4) [U] dealer is more dangerous to society, want to deter conspiracy more, prevent risk spreading (moral hazard) Cases

People v. Thousand (factual impossibility): Police posing as a 14 year old girl lures a creeper into a McDonalds, and charges him with attempted distribution of obscene materials to a minor. Factual impossibility is a not a defense, so the creeper can be charged. Commonwealth v. McCloskey (abandonment, CL): Guy tries to escape from prison, but stops before he finishes cutting wire. Majority says he was still preparing so could abandon before the act was complete. Dissent wanted this to be an affirmative defense. Problem with using act element, is drawing a line sets precendent.

Conspiracy [Inchoate and completed crime] and Withdrawal Dual functions of conspiracy Inchoate crime: agreement itself is a crime. Causation is not necessary to prove. Mode of liability: all members liable for finished crime. Can't be charged with inchoate and mode of liability for the same crime. Two types of conspiracies Wheel: knowledge of existence of other spokes is sufficient, but more than a suspicion is required. o [U]: don't want to over deter. [R] Not culpable if you don't know it is going on. Chain: Agreement may be implicit, but supplier must share in the purpose [acquire a stake in venture, no lawful use of service, charge higher rates] (Lauria) o Can infer agreement from stake in venture, or knowledge of serious crime. [prostitution isn't serious, don't want to hold Taco Bell liable for 4th meal] Common law conspiracy test 1) Inchoate: Agreement to criminal objective: a. Intent [purpose or knowledge] to combine with another person [Wharton Rule: crime can't be defined as requiring multiple people, prostitution] b. Intent [purpose or knowledge] to complete objective of conspiracy [Maj: no overt act, Min: act requirement is not demanding] 2) Mode of liability (majority/ Pinkerton): elements of inchoate conspiracy proved (above test) plusa. Co-conspirator commits crime in furtherance of conspiracy b. Crime is a foreseeable consequence [objective from D's perspective] 3) Withdraw a. Inchoate: can't withdraw b. [R/U] still want to punish conspiracy for reasons listed above. [U] risk over deterring. [U] still provides an incentive to stop before crime occurs c. Mode of liability: can withdraw before crime is completed, but this only limits liability for crime itself. i. Affirmative and bona fide repudiation communicated to co-conspirators [doesn't need to be verbal, skipping town can count] MPC 5.03 conspiracy test 1) Inchoate: Enters conspiracy with purpose of promoting or facilitating crime if: a. Agreement that someone will commit or attempt crime; and [Wharton Rule: crime can't be defined as requiring multiple people, prostitution] b. Agreement to aid in planning or commission of crime. (overt act required for all crimes other than most serious) c. [merges if crime is completed] 2) Withdraw a. Both types (affirmative defense): D must manifest a complete and voluntary renunciation of criminal purpose, and thwart the success of the conspiracy. b. [U] better for society to have crime stopped. If you withdrawal, co-conspirators still on the hook for conspiracy. Cases

Pinkerton v. US (Mode of liability, CL): Two brothers conspire to commit tax fraud regarding their business. One brother goes to jail but is still held liable for the tax fraud because conspiracy is continuous, and an affirmative action is needed to withdraw. Lauria (supplier, conspiracy): Owns a phone message service that is used by prostitutes. He is not held liable because he neither shares in the purpose, and because prostitution is not a serious crime. People v. Sconce (withdraw, CL): Sconce pays for a murder but calls it off before murder is committed. Murder is committed by hit man anyways. Sconce cannot withdraw from the inchoate crime (after over act, aka paying hit man) under the common law, but he has withdrawn from the murder itself.

Accomplice liability [mode of liability] Accomplice (aiding and abetting): the punishment is generally the same as for the underlying crime. This is a mode of liability, not an inchoate crime. [R] morally culpable mental state. [U] can try to deter/ reform people from thinking they are committing crime Higher mens rea policy: [U] don't want to cast net too wide and chill commerce. [R] risk of convicting non-culpable people Common Law Accomplice Test [crime must be complete, all elements proven with respect to principle!!] CL: D must render aid in fact, failed attempts to aid and abet are not sufficient for liability since no aiding or abetting actually occurred. Under MPC, attempting to is enough! Crime must also occurotherwise aiding and abetting a legal act, which is perfectly acceptable as no crime has occurred. 1) Act: Purpose of aiding the principal AND purpose of facilitating the success of the crime a. [crime must be complete, all elements proven in respect to the principle before aider is considered] 2) Mens Rea for result: same as required for principle (majority), purpose (minority) 3) Natural and probably consequence (NPC) doctrine: intent may be found if: a. D intended to assist with another crime b. The charged crime was foreseeable (natural and probable) result. 4) Causation: majority does not require because contribution is sufficient if it makes the crime easier. a. Useless acts don't satisfy causation element, because they don't make the crime easier. NPC v. Pinkerton conspiracy 1) NPC doesn't require an agreement, but 2) Conspiracies can be broader (and include an inchoate crime) 3) NPC requires concrete aid toward the crime, conspiracy just requires an agreement. 4) NPC act is directly assisting in the crime, but in conspiracy the act is the agreement to commit the crime. MPC 2.06: Accomplice liability provisions 1) Purpose in facilitating criminal act 2) Mental state for result, tracks requirement for the principle. 3) Causation: attempt to aid crime is an inchoate crime. 4) Withdrawal: no responsibility if: 1) terminate complicity before the crime, and wholly deprive prior complicity of effectiveness. [not stop crime, just withdraw your help] 5) Attempt to aid: separate inchoate crime Cases

Hoselton (intent of principle): kid is present when his friends break into a boat storage container, and he leaves to go back to the car. Since he did not have the same intent as the principle, he cannot be convicted as an accomplice. State v. Linscott (natural and probable): breaks into a house and his friend has a sawed off shotgun. The plan was just to break into the house but his friend ends up shooting the owner of the house. Since the shooting was foreseeable, Linscott is charged as an accomplice to murder. State v. VT (presence is not an act): Presence is not enough to be considered "purpose for facilitating the success of the crime." Wilcox v. Jefferson (England, presence): England court held that journalist presence at an illegal concert was encouragement with purpose of facilitating success. People v. Genoa (crime did not occur): can aid and abet a crime that never occurred although the MPC (minority) allows accomplice liability to be inchoate.