Professional Documents
Culture Documents
- Omissions:
o Acting voluntarily can include not doing something that you are
obligated to do.
o Possession as a voluntary act (MPC 4-2)
If you know that you have contraband, whether you took it or
were given it, then you could have acted voluntarily
o Four Instances Where a Failure to Act is a Breach of a Legal
Duty:
Where a statute imposes a duty to care for another
Where one stands in a certain status relationship to another.
Where one has assumed a contractual duty to care for
another.
Where one has voluntarily assumed the care of another and so
secluded the helpless person as to prevent others from
rendering care.
o Death resulting from omission is usually involuntary manslaughter
o There is no duty to prevent someone from abusing a child unless you
are the parent, adoptive parent, in loco parentis or are responsible for
the child.
In Pope v. State a crazy lady stayed at another woman’s house.
The crazy lady beat her own child and killed it. The home owner
was convicted of child abuse for failure to act. The appellate
term overruled because the mother was there the whole
time and the other woman was not the child’s other parent, etc.
o Life Support:
Pulling life support is considered an “omission,” because it’s a
failure to administer heroic life support (this is when doctors do
it at the family’s request). If someone else does it, then it could
suddenly become an act.
- Possession:
o Possession of contraband is a voluntary act if you know you have it and
have had sufficient time to get rid of it.
o State v. Bradshaw: A guy had 74 lbs of weed in his semi-truck while
crossing into Washington State from Canada. He was convicted of
possession because he failed to inspect his load properly (kind of
defeats the knowingly mens rea, but whatever).
V. MENS REA
- How Do You Prove Mens Rea?
o You must provide circumstantial evidence that shed light on the actor’s
state of mind
- Regina v. Cunningham
A man stole a gas meter out of a house so he could get the money out of it.
This resulted in the home owner almost dying from noxious coal gas. The
man was convicted of malicious administration of noxious gas with the
judge instructing the jury that malicious meant wicked. Court reversed
saying that malicious went to the mens rea of the crime, and that it
meant that the jury had to find intent or knowledge that harm may
occur, but continued to act anyway.
o How would Cunningham be judged in Illinois?
Intent -- No, his objective was not to administer the gas
Knowledge – No, can’t say he was consciously aware of the
result
Recklessness – No, he did not consciously disregard a specific
risk
Negligence – Probably, but you cannot use negligence to
convict unless the statute specifically allows it.
Otherwise, you must prove at least recklessness.
- Default Mens Rea Rule
o You may only base a prosecution on criminal negligence when the
statute specifically allows it.
When no mens rea is listed you must prove at least
recklessness
- Differences Between MPC and ILCS Mens Rea:
o Recklessness:
MPC – deviation from what a law abiding citizen would do
ILCS – deviation from what a reasonable person would do
• Theoretically, you could abide the law while being
unreasonable
o Negligence:
MPC – Should have been aware of the substantial risk
ILCS – Failure to be aware of the substantial risk
- General Intent versus Specific Intent:
o General Intent:
Any mental state, express or implied, in the definition that
relates solely to the acts that constitute the criminal offense.
o Specific Intent:
Designates a special mental element which is required above
and beyond any mental state required with respect to the
actus reus of the crime.
• E.g. possession of marijuana with intent to sell
• A special motive/purpose
• Some statutes require proof of awareness of attendant
circumstances.
o E.g. receipt of stolen property with knowledge
that it is stolen
Specific intent goes beyond just the mens rea of an actus reus
and has a second mens rea for some attending circumstance.
- Willful Blindness:
o If someone does not meet a mens rea required by a statute, but it can
be proved that the only reason he does not meet the mens rea is
because of purposefully disregarding knowledge of the
circumstances, that is called willful blindness and does not negate
mens rea
E.g. a guy has a secret compartment in his car and he knows
that his friend is putting something in there, but he refuses to
look at what it is. That is willful blindness and if that something
is pot, for example, then the car owner is still guilty.
- Absolute Liability
o Absolute liability offenses require no mens rea
o Common Law:
Disfavored by common law.
Those crimes which would carry a great stigma upon
conviction will require a mens rea.
o MPC:
MPC 2.05(1)
• The requirements of culpability do not apply to:
o Offense which constitute violations (defined in
MPC 1.04), unless mens rea involved is included in
the definition of the offense.
o Offenses defined by statutes other than the Code,
insofar as legislative purpose to impose absolute
liability for such offense or with respect to any
material element thereof plainly appears
oIllinois:
ILCS 4-9:
• A person may be guilty of an offense without having, as
to each element thereof, one of the mental states
described in Sections 4--4 through 4--7 if the offense:
o Is a misdemeanor which is not punishable by
incarceration or by a fine exceeding $500, or
o The statute defining the offense clearly indicates
a legislative purpose to impose absolute liability for
the conduct described.
o Absolute Liability for Felonies:
If a statute says that you don't have to prove culpability, then
that is the same as saying absolute liability. In the US that is
true even for a felony requiring incarceration. That is not
typical of foreign criminal codes.
• MPC 2.05
o If a statute does state that absolute liability is the
requirement to convict, then it is punishable as a
"violation" as defined in 1.04(5).
This has not been adopted by any state.
o Actus Reus in Absolute Liability:
State v. Baker
A man was cited for speeding because his cruise control
jammed. He says that speeding, being an absolute liability
charge, only does away with mens rea, and that the
prosecution still had to prove actus reus.
• Illinois would agree with that statement. Absolute
liability can be avoided if you can prove you did not
meet the actus reus
• MPC absolute liability does away with mens rea and
actus reus, so the Baker argument would not work.
- Wrong in Itself versus Wrong by Prohibition:
o Mal in Se – Something is wrong because of the act (e.g. murder)
o Mal in prohibitum – Something is wrong because the law says it is
(e.g. driving on left)
VI. RAPE
- Common Law Rape
o At common law, rape used to be only vaginal intercourse between a
man and a woman. It is only penis-vagina intercourse, and only a
male can commit rape. A woman could aid and abet a male in
committing rape, but cannot herself commit rape.
The common law has changed to allow both now.
- Statutory Rape
o Does not have to be against the will of the victim, she just needs to be
below a certain age.
o People v. Olsen
A guy had sex with a 14 year old when she had told him she was over
16. He was convicted of lewd and lascivious conduct. Court says his
mistake of fact did not change the conviction, because the law
has a special interest in protecting those of tender age.
Mistake of fact, as to consent, is only meant for when someone
is under 18 but over 16. DISSENT: At some point it is possible
to have done all that is reasonably possible to find out the true
age of a girl and still reasonably believe she is of age even if
she is not. At that point, it is unjust to convict because the
person is acting as society would want him to (reasonably
thinks the girl is over 16).
- Criminal Sexual Assault – ILCS 12-13
o Actus Reus:
The accused commits criminal sexual assault if he or she
commits an act or sexual penetration
• (a)1: by the use of force or threat of force
o Defined under 5/12-12(d)1&2
• (a)2: and the accused knew that the victim was unable to
understand the nature of the act or unable to give
knowing consent
• (a)3: with a victim under 18 years of age when the act
was committed and the accused was a family member
• (a)4: with a victim who was at least 13 but under 18 when
the act was committed and the accused was 17 or older
and held a position of trust, authority or supervision in
relation to the victim
Force/Threat of Force ILCS 12-12:
• "Force or threat of force" means the use of force or
violence, or the threat of force or violence, including but
not limited to the following situations:
o (1) when the accused threatens to use force or
violence on the victim or on any other person, and
the victim under the circumstances reasonably
believed that the accused had the ability to
execute that threat; or
o (2) when the accused has overcome the victim by
use of superior strength or size, physical restraint
or physical confinement.
o Mens Rea:
Recklessness at least: no mens rea explicitly stated, except:
• (a)2: knowledge that the victim was unable to
understand the nature of the act or unable to give
knowing consent
o Defenses:
ILCS 12-17:
• (a): consent is a defense if it is explicitly given – freely
given agreement to the act of sexual penetration or
sexual conduct in question
o Lack of verbal or physical resistance or submission
shall not constitute consent
o Manner of dress of the victim at the time of the
offense does not constitute consent
o Consent is only part of element (a)2, so mens rea
for the other 3 elements does not have to go to
consent (?)
o Mistake:
ILCS 4-8:
• A defense of ignorance or mistake should apply if it
negates the mens rea
o While consent is a defense to rape, mistake of age
is NOT a defense.
• The rule of lenity could be used to argue that, since it is
unclear if mistake of consent is a defense, that the court
should exercise leniency in hear such a case.
o Burdens:
For affirmative defenses the burden of production is on the
defendant the burden of persuasion is on the prosecution. The
exception is when defendant pleads insanity, then he carries
both burdens.
• In determining force, some jurisdictions feel that the force
of normal intercourse is enough to prove force. Other
jurisdictions require a show of resistance to prove force.
- Force and Resistance: Common Law
o Fear can satisfy the element of force if it is a real and reasonable
fear.
- Mistake of Law
o Common Law:
Ignorance of the law is not a defense
o Ignorance of Criminal Code:
ILCS 4-3 and 4-8 deal with mistake. Essentially the same as
MPC.
MPC 2.02(9)
• Ignorance of the law defining a crime is not a defense,
and understanding of the law is not an element of the
offense unless specifically stated.
MPC 2.04(3)
• Can help if the law wasn’t reasonably made available to
the defendant.
o Ignorance of Other Legal Relationships:
Regina v. Smith
A guy refloored and paneled his apartment and put in surround
sound with the wiring in the walls. When he moved out he took
the wiring out and took the speakers with him. Court
convicted of intentionally damaging another person’s
property because improvements to rentals become
property of the landlord.
• In Illinois you could make an argument here. While
ignorance of criminal law is not a defense, ignorance as
to another legal relationship (such as property law)
could be a defense.
o Here, you would argue that Plaintiff did not
knowingly damage another person’s property,
because he did not know property law made his
speakers the property of the landlord.
Cheek v. United Staets
A guy was convicted of tax evasion, because he believed taxes
to be unconstitutional and he also did not believe that he
qualified as a taxpayer. Court said that the jury should be
allowed to consider whether his belief that he is not a
taxpayer is a viable defense.
• The court based its opinion on the fact that the crime had
to be willfully violating the Internal Revenue Code. Since
that Code is extremely complex it is possible that
someone could genuinely not understand that they were
violating the Code. This guy got convicted even after that
instruction because he was being a douche and wasn’t
ignorant of the law. However, the more complex the
other legal relationship, the better shot you have at
defense of mistake of law.
o Exceptions to Ignorance of Criminal Codes:
Lambert v. California
A woman was a felon, and L.A. law enforcement required all
felons must register with the police in order to stay longer than
5 days in the city. The woman did not register and stayed
longer than 5 days and was convicted of violating the statute.
Court overrules this based on mistake of law. They say
the only way to violate the law was to not do something
(you had to not register and not leave). This is a
violation of due process, because most states didn’t
have that type of rule so there is no reason for the
woman to have known that.
• This is a really unique exception to the rule. Usually,
mistake of law as to the criminal code carries absolute
liability.
• This is different from sex offender registration laws
because most states have them, and they are for the
public welfare, which is more likely to make them strict
liability. This statute was just to make law enforcement
easier.
VIII. HOMICIDE
- Murder/Murder in the First Degree:
o Common Law:
Unlawful killing
Of a human (or fetus)
With malice aforethought
• Malice:
o Express: intent
o Implied: showing an abandoned and malignant
heart
• Aforethought:
o Some thought must go into it according to Guthrie.
o According to Carroll, acting on an intent to kill is
premeditation enough to convict.
o MPC: Murder:
Committed purposely or knowingly; -OR-
Committed recklessly under circumstances manifesting
extreme indifference to the value of human life
o Illinois:
Unlawful killing
Intending to kill or do great bodily harm to and individual or
another or knows that such acts will cause death to that
individual or another (express malice); -OR-
He knows that such acts create a strong probability of death or
great bodily harm to that individual or another (implied
malice); -OR-
He is attempting or committing a forcible felony other than
second degree murder (does not translate to the other
statutes)
- Second-Degree Murder
o ILCS 9-2
(a) A person commits the offense of second degree murder
when he commits the offense of first degree murder as
defined in paragraphs (1) or (2) of subsection (a) of Section
9-1 of this Code and either of the following mitigating
factors are present:
• (1) At the time of the killing he is acting under a
sudden and intense passion resulting from serious
provocation by the individual killed or another whom
the offender endeavors to kill, but he negligently or
accidentally causes the death of the individual killed;
or
• (2) At the time of the killing he believes the
circumstances to be such that, if they existed, would
justify or exonerate the killing under the principles
stated in Article 7 of this Code, but his belief is
unreasonable.
Provocation:
• People v. Chevalier
o The only categories of serious provocation are:
Substantial Physical Injury or Assault
Mutual Quarrel or Combat
Illegal Arrest
Adultery with the Offender’s Spouse
o MPC 210.3 – Manslaughter
Criminal homicide constitutes manslaughter when…
• It is committed recklessly [creating an unjustifiable and
substantial risk]
• It would otherwise be murder but is committed under the
influence of extreme mental or emotional
disturbance for which there is reasonable
explanation or excuse.
o 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 to be.
o In Illinois, MPC, and Common Law emotional distress/provocation
cat drop charges from murder to manslaughter/2nd degree murder
o Common Law
Girouard v. State
A man’s wife was taunting him with words so he took the next
logical step and stabbed her 17 times. He was convicted of
murder but said it should be manslaughter because he was
provoked. Words alone are not provocation enough.
- Felony-Murder
o Two Approaches to Felony-Murder
Certain Felonies may themselves create a recognized
danger to killing people, for which people can be charged
with murder.
• This is not because of the felony murder rule, but because
the acts are so dangerous to human life
• You need to prove that the person knew of the danger to
human life
• Most common in the United Kingdom and in the MPC
Strict Liability
• Most prevalent in the United States
• You commit a forcible felony and kill someone, that is
murder
o Merger Doctrine
When the felony is so wrapped up with the killing that you
must find malice aforethought, the felony-murder rule does not
apply. i.e. When the felony is committed for the purpose of
killing the defendant must be charged with malice
aforethought. When a felony committed for the purpose of
that felony, and a killing happens, then you can use the felony-
murder rule
• E.g. assault with a deadly weapon cannot be used for the
felony-murder rule if the assault leads to death.
Read notes on the rationale of the felony-murder rule (p. 439)
o Regine v. Serné
A man burned his house down to get the insurance on it and his
retarded (literally) child died in the inferno. Prosecutor wanted
to charge the man with murder because he should be
responsible for the injuries caused by his arson. Court says no,
but arson can be used to show malice aforethought or a
depraved and malignant heart
o Common Law:
For the felony-murder rule to apply, the predicate felony must
be inherently dangerous to be used, but not so wrapped up in
the killing that malice aforethought must be charged.
People v. Phillips
• A chiropractor claimed to be able to fix eye cancer, he
killed his patient in surgery….because he was a
chiropractor…performing surgery…on a man’s head.
Court said that this felony, medical fraud, was not
inherently dangerous enough to use the felony-
murder rule
People v. Stewart
• A mother went on a crack binge and neglected her child.
It died. Court said that it is up to the JURY to decide
if the predicate felony is inherently dangerous
enough to use the felony-murder rule.
- Illinois
o Felony-murder bumps lower murder charges up to first-degree
murder because the predicate felony replaces the malice
aforethought requirement
o People v. Morgan
A kid killed both of his grandparents. He was convicted of first-degree
murder against his grandmother under the felony murder rule. The
predicate felony was unlawful discharge of a firearm. He was
convicted of second degree murder of his grandfather. Defense
argued that the predicate felony was wrapped up in the killing and
should not be used to bump second-degree murder up to first degree.
Court says this is sound logic, but the jury was instructed on
both felony-murder and murder in the second degree and
returned a general guilty verdict.
Wrap-up of Morgan:
• When a general verdict is given, the gravest offense is
assumed as the one convicted of
• The heat of passion defense from Chevalier DOES NOT
apply to felony-murder. Heat of passion negates malice
aforethought which does not have to be proven under
felony-murder.
o People v. Burton
You may only be convicted of felony-murder if the felony was
being committed independent of the homicide.
o ILCS 2-8 – Forcible Felonies
Only forcible felonies will qualify as predicate felonies under
the felony-murder rule
Forcible Felonies:
• Treason, first degree murder, (second degree
murder does not count for felony-murder),
• Predatory criminal sexual assault of a child,
aggravated criminal sexual assault, criminal sexual
assault,
• Robbery, burglary, residential burglary, aggravated
arson, arson,
• Aggravated kidnapping, kidnapping, aggravated
battery resulting in great bodily harm or permanent
disability or disfigurement and
• Any other felony which involves the use or threat of
physical force or violence against any individual.
- Death Penalty
o Illinois:
The jury must find one or more aggravating circumstances
existed at the time of the killing, then they would be able to
hear a death penalty request.
• This calls for a bifurcated trial. A trial on the murder
charge and a trial on the aggravating circumstances
ILCS 9-1(b)-(k) – Aggravating Circumstances:
• Lists the aggravating circumstances leading to a possible
death penalty sentence
o Other States:
First-degree murder is a capital offense period.
o Supreme Court Rulings:
The death penalty may not be given to:
• Rapists (unless the victim dies)
• The mentally retarded
• People under 18
IX. ATTEMPT
- Illinois:
o ILCS 8-4:
(a) Attempt requires that someone, with intent to commit a
specific offense, does any act which constitutes a substantial
step towards the commission of that offense.
(b) It is not a defense to attempt that, because of a
misapprehension of the circumstances, it would have been
impossible for the accused to commit the offense attempted.
o Illinois charges attempt as a separate crime, therefore there is a
separate mens rea and actus reus for the offense.
Attempt is an inchoate crime
o Attempt is punished a grade below the actual crime
E.g. attempt first degree murder is sentenced as second degree
murder
- Common Law:
o Attempt is prosecuted as a misdemeanor
- MPC:
o Attempt carries the same sentence as the crime itself
E.g. attempt murder carries the same sentence as murder
- Sentencing:
o Why are the sentences different under the MPC and ILCS?
It goes to the view of the crimes. People don’t agitated as much
over people who try to kill but fail versus people who succeed
at murder.
• The MPC is more utilitarian. It charges success the
same as failure because they want to keep society safe
from killers, even if they aren’t very good at killing
• Illinois is more for retribution in their sentencing. Failure
should not bring as grave a punishment as success
• Supporters of deterrence would not approve of the MPC
model because if you are punished the same for attempt
as success then why not keep shooting until you get the
kill?
- Intent as an Element of Attempt
o You must intend to commit the crime which you end up attempting.
Therefore, you cannot attempt manslaughter, or any involuntary
crime. You could maybe attempt voluntary manslaughter (killing in the
heat of passion) if, for instance, you shoot at someone in the heat of
passion and miss.
o Illinois
Under ILCS 9-2(a) the Supreme Court of Illinois has said you
cannot commit attempted voluntary manslaughter. This is in
reference to 9-2(a)(2), the unreasonable self-defense issue.
• Norton does believe that it could be possible to attempt
2nd degree murder under 9-2(a)(1), the “heat of passion”
modifier.
o Substantial Step:
Illinois & MPC 5.01(2) Rule:
• Norton believes that ILCS has incorporated the dangerous
proximity rule into its code, even if it has not been
expressed.
Abandonment Defense:
• The MPC allows a defense of “abandonment” of the
attempt. ILCS does NOT.
o This is a good reason to think that Illinois uses the
dangerous proximity test to determine a
substantial step, because if you were not
dangerously close you wouldn’t need to abandon
your attempt, there would be no crime to begin
with.
Therefore, MPC probably requires less to
have been done to constitute a substantial
step than ILCS
o Impossibility Defense
If something is inherently impossible then that is a defense to
attempt (e.g. using a voodoo doll to commit murder is inherently
impossible [a.k.a. legally impossible]. Sticking your hand into an
empty pocket is not a legal, inherent, impossibility, it is a
factual impossibility.
• Factual impossibility is not a defense. I guess the
difference is that sticking your hand in a pocket, you
could steal something if something were there. No matter
what you do with a voodoo doll, you cannot kill someone.
o Attempt of Non-Crimes:
If the crime you attempted is not a crime, then you cannot be
convicted of it.
• E.g. you cannot be convicted of attempted hop-scotching
because it is not illegal to hop-scotch
If the offense you attempt is real, but what you do is not, you
may still be convicted because mistake of law is not a
defense.
• E.g. if you traffic in oregano, thinking that oregano is
illegal, then you can be convicted of attempted
trafficking of a controlled substance.
o This is because “trafficking of a controlled
substance” is illegal, and you attempted it, but
failed. (seems weak sauce because you didn’t
really take a substantial step, you had oregano).
o Attempt is an inchoate crime, so if the crime is actually committed
then there is not attempt. Attempt means the crime failed.
X. ACCOUNTABILITY
- Illinois Rule:
o The issue is if someone is accountable (defined in ILCS 5-1; 5-2; 5-
3)
o ILCS 5-2:
A person is legally accountable for the conduct of another
when:
• (a) Having a mental state described by the statute
defining the offense, he causes another to perform the
conduct, and the other person in fact or by reason of
legal incapacity lacks such a mental state; or
• (b) The statute defining the offense makes him so
accountable; or
• (c) Either before or during [i.e. NOT after] the
commission of an offense, and with the intent to promote
or facilitate such commission, he solicits, aids, abets,
agrees or attempts to aid, such other person in the
planning or commission of the offense.
o [The “having a mental state described…in 5-2(a) is
only relevant when you use a juvenile or innocent
to do your dirty work. 5-2(c) uses the term
“intent,” and that is the prevalent mens rea]
Defenses:
• Unless the statute explicitly express otherwise, a person
is not accountable if:
o He is a victim of the offense committed; OR
o The offense is so defined that his conduct was
inevitable incident to its commission; OR
o Before its commission, he terminates his effort
to promote the offense AND either: (1) wholly
deprives his prior efforts of effectiveness in such
commission, or (2) gives timely warning to the
proper law enforcement authorities, or (3)
otherwise makes proper effort to prevent
commission of the offense
o The principal actor does not need to be convicted of the act for
accountability to be found.
o In Illinois you must prove that the crime was committed in order to
convict someone for aiding and abetting.
If the crime is not committed you could still charge the person
with attempted aiding and abetting
CAVEAT:
• The accountability charge will be tried separately from
the principal. I.e. the principal could be acquitted in his
trial, but in the accountability trial the prosecution could
convince the jury that the principal did commit the crime.
Therefore, it is possible to be convicted of
accountability even if the principal is acquitted in
his trial.
- MPC:
o The issue is if someone is an accomplice
- Common Law:
o Two Categories:
Principal
• These people actually took part in the crime
o First degree: actually committed the crime (thief,
etc.)
o Second degree: Aided in the crime while there
(lookout, getaway driver, etc.)
Accessory
• These people aid before or after the fact.
- When you are accountable for a crime you are aiding and abetting that
crime.
- Mental State for Accountability
o Intent must be shown.
o United States v. Hicks
Two men were talking with the victim and one of the men pointed a
gun at him. The other man shouted words which seemed to
encourage the gun-wielder. The man with the gun shot and killed the
decedent. Court says that the man who shouted words of
encouragement did not meet the standard of accountability
because he did not intend to support or further the crime.
The court says that the accountable party must share a
common criminal design with the offender, which was not
present here.
The court also says that mere presence when an act occurs
does not constitute accountability (common criminal
design).
• Wilcox v. Jeffry
A Jazz Music Magazine writer went to a jazz concert which
was being illegally performed and clapped and wrote a
positive article about it. Court convicted him of aiding
and abetting illegal activity because his presence
there was evidence of his intent to support and
further the behavior.
o Presence alone is not enough, but he was there and
he was supporting the event. If he went there to
protest the event it would have been different
o State v. Gladstone
A guy went to Defendant to buy weed. Defendant didn’t have any, but
he drew a map for the guy to find the house of someone who may
have had some to sell. Defendant was charged with aiding the sale of
narcotics. Court says that Defendant did not show a purposive
act in furtherance of the crime. He drew a map showing where
someone may or may not have been able to commit the
offense.
The dissent said the jury should have been allowed to determine
if the map drawing was a purposive act or not
- Group Criminality
o People v. Luparello
A guy told people he wanted some information no matter what. Those
people kidnapped, tortured, and killed a man to get that information.
Court said that the original guy was accountable because he
should have reasonably foreseen that as a possible outcome.
The reasonable foreseeability of the consequences shows a
common criminal design, and that is good enough to satisfy
the general intent requirement of accountability. According to
People v. Perez (TWEN) intent can be shown by (1) showing that
the accountable party shared the criminal intent of the principal
or (2) shared a common criminal design with the principal
• That is also why the negligence of the steamship captain
in the steam boiler case was accountability for
manslaughter. He shared a common criminal design
(criminal negligence) with the principal actors.
o People v. Russell
A group of people had a gun battle and someone shot and killed a
bystander, but it is unclear who actually fired the fatal shot. All men
were convicted of second-degree murder (not first degree due to
provocation of either “mutual combat” or “substantial physical
assault” not sure which). Court says that the men knowingly and
intentionally engaged in hazardous activity which encouraged
the other men’s actions. Just because the men were
adversaries does not mean they were not supporting and
furthering the criminal act.
The court basically says that if the other men weren’t there
shooting, then the crime of second-degree murder would not
have happened. So their actions were intentional furthering of
murder.
XI. CONSPIRACY
- Two Aspects of Conspiracy (State Level):
o Inchoate Crime
Under Illinois law you cannot be convicted of an inchoate crime
and the object of that crime. You can be charged with both the
inchoate and the principal offense, and the jury can return a
verdict on both, but if the conviction comes back for both then
the principal offense is the only one sentenced.
• MPC and ILCS follow the rule that the conspiracy and the
object of the conspiracy merge.
o The Federal rule does not call for merger. So you
could be convicted of conspiracy to commit robbery
AND robbery
o Pinkerton v. United States
Two brothers were bootleggers during Prohibition.
One brother was in prison and the other was selling
unlicensed alcohol. The imprisoned brother said
that he could not be convicted because he was in
prison the whole time. Court says that he was
in conspiracy with his brother on the outside
and he could be charged with that conspiracy
and the object of that conspiracy.
As stated above, MPC and ILCS reject the
Pinkerton rule
o Conspiracy is a crime striking against the special danger
incident to group activity
- Illinois
o ILCS 8-2
A person commits conspirace when, with intent that an offense
be committed, he agrees with another to the commission of
that offense.
- Differences Between Federal and State Conspiracy:
o Venue Shopping:
A federal conspiracy trial can be held in any district where any
act of any part of the conspiracy took place.
• E.g. A plot to blow up the Statue of Liberty was tried in
the State of Washington, alleging that some act in
furtherance of the conspiracy was conducted in
Washington.
o In reality, the Attorney General just wanted to ship
a dissident group out of New Jersey for a while so
he forced them to go to Washington to face trial.
o Degree of Punishment:
At the federal level conspiracy is a felony. Therefore, you could
be convicted of conspiracy to commit a misdemeanor, but the
degree of the punishment would be a felony.
• In Illinois, you will not be convicted of a felony for
conspiracy to commit a misdemeanor EXCEPT for
conspiracy drug charges, which is handled by its own
statute.
- Other Criticism of Conspiracy
o Evidentiary Exception
A statement made by co-conspirators can be used as evidence
against all other co-conspirators even if it would only qualify
as hearsay evidence.
• This applies at State and Federal levels
o Mass Trial:
Conspiracy trials will often be a series of vague charges laid
against several co-conspirators
• Juries will often have a difficult time determining specific
culpability with regard to a particular defendant
o I.e. an innocent person is much more likely to be
wrongfully convicted when he is tried in a mass trial
with other suspected criminals.
- Impact of Conspiracy on the Statute of Limitations
o The statute of limitations to bring a conspiracy charge begins to run
when the conspiracy has ended. This means that if the conspiracy
is “ongoing” then the statute of limitations is not running.
Particularly pertinent for terrorism charges
- Elements of the Crime:
o ILCS 8-2(a):
A person commits conspiracy when, with intent that an
offense be committed, he agrees with another to the
commission of that offense. No person may be convicted of
conspiracy to commit an offense unless an act in furtherance of
such agreement is alleged and proved to have been committed
by him or by a co-conspirator.
• The fact that other co-conspirators have been acquitted or
not even charged does not negate charges or convictions
for other co-conspirators
- What is Required for Conspiracy?
o An agreement:
Illinois:
• Requires a bilateral agreement to commit the crime in
order to convict of conspiracy to commit that crime
o Both people intend to commit the crime
o The majority of jurisdictions use this approach.
MPC:
• Requires only a unilateral agreement.
State v. Hayes
Defendant tried to convince a Mr. Hill to rob a store with him.
Hill was related to the store owners, so he agreed with the
intent of getting Defendant arrested for burglary. Court said
that since Mr. Hill did not make an unlawful entry with
intent to steal therein he did not commit a crime and
Defendant cannot be accountable for it.
• This case goes to accountability and conspiracy. The
two concepts are liked closely.
o Here, Defendant is not accountable because no
crime was committed.
o Defendant was not a conspirator (in Illinois)
because there was no bilateral agreement. There
was a feigned agreement.
MPC may still allow conviction for conspiracy
here.
• This would not be entrapment
because Hill was not a public officer
- Entrapment
o ILCS 7-12
A person is not guilty of an offense if he was induced to commit
that offense by a public officer, unless there is evidence that
he was predisposed to commit the crime before
inducement.
- Duty to Retreat
o Common Law:
The right to self-defense is a defense of necessity, so if you
could avoid killing someone by retreating then you must.
• In defense of a dwelling, the home is a castle, and no
duty to retreat applies.
- Mental Illness
o Execution of the Mentally Ill
Those who cannot understand that they are about to die
may NOT be executed.
• This is because they cannot make peace with their
Creator beforehand.
o Insanity Defense
Insanity is a legal term, not a medical term
• Mental illness alone is not enough.
The M’Naghten Rule:
• It is perfectly useless for the law to attempt, by
threatening punishment, to deter people from committing
crimes if their mental condition is such that they cannot
be in the least influenced by the possibility or probability
or subsequent punishment; if they cannot understand
what they are doing or cannot understand the
ground upon which the law proceeds.
MPC on Insanity:
• MPC 4.01(1)
o A person is not responsible for criminal conduct if
at the time of such conduct as a result of mental
disease or defect he lacks substantial capacity
either to appreciate the criminality [wrongfulness]
of his conduct or to conform his conduct to the
requirements of law.
Federal Law:
• It is an affirmative defense to a prosecution under any
Federal statute that, at the time of the commission of the
acts constituting the offense, the defendant, as a result of
a severe mental disease or defect, was unable to
appreciate the nature and quality or the wrongfulness of
his acts. Mental disease or defect does not otherwise
constitute a defense.
o Very similar to M'Naghten and the Illinois rule.