THEORIES OF PUNISHMENT Utilitarian Theories of Punishment DETERRENCE (Create Public Fear of Punishment) The costs of punishing the offender

is justified by the effects it will have on society When society sees a criminal getting punished it will scare others from committing that crime. Cost of deterrence is outweighed by the benefit of preventing crime to society. MORAL INFLUENCE (Educate Society) The state is justified when punishing offenders will influence and shape the moral attitudes of citizens at large such that they commit fewer crimes. Problems with this theory: o Assumes that all citizens want to be good. o Arent the morals of right and wrong taught long before a law? INCAPACITATION (Remove the Offender from Society) Punishment is justified by taking them out of society (jail/death) to reduce a future harm and to give society a net benefit Problems with this theory: o Only thinking about 1 offender, not all o We dont know if an offender today will commit another offense in future o Offenders are more dangerous when they come out than they were they went in o Its harder for previous offenders to live a normal life when they get out REHABILITATION (Fix the Offender) Make the offender better as a person and make society safer when they return to the streets by making them less dangerous. Identifies the offender as a flawed person and thinks we can change that (ex. addiction rehab, psychiatric treatment, providing education & job skills) Problems with this theory: o It just might not work o Moral concern, is rehabilitation imposing your judgments over their judgments

Non-Utilitarian Theory of Punishment RETRIBUTION (Punish Only if the Offender Deserves it) State is justified in punishment when the offender deserves to be punished When is the punishment deserved? 2 Factors: o Offender must do voluntary wrong o They are responsible for doing so o Consider proportionality of the punishment to that deserved of the crime Problems with this theory: o Is this theory a moral disguise for our desire to get back at them? o The theory is sadist, vengeful, or bloodlust, an exercise of power? HYBRID THEORY In order for the state to be justified in punishing 2 factors must Retributive factor must be satisfied There must be a utilitarian benefit to society in punishing. be satisfied:

I.

II. III.HOMICIDES I.Intentional Homicides A.MURDER W/ INTENT TO KILL (intent + act + cause death) Intent Minimum Threshold: If a D uses a deadly weapon on a vital part on the Vs body likely can concluded D had intent to kill. Natural and Probable: If the natural and probable consequence of Ds actions is death MPC: Act that causes death with malice aforethought (purpose, knowingly, recklessness); without regard to level of premeditation CL Degrees: 1st Degree (Premeditation) 2nd Degree (No Premeditation) Premeditation Guthrie Approach - Must have time to reflect or calculate on intent to kill before actually killing Carroll Approach - No time is needed for premeditation or deliberation. It can happen in one second. ***Split in the law, on tests look at both points of view when discussing premeditation** VOLUNTARY MANSLAUGHTER (intent + act + cause death + mitigating circumstance) Mitigating Circumstance (Partial Defense) Common Law Approach (3/4): o Heat of Passion (Girouard) Actor must have experienced intense and powerful emotions (anger; jealousy; fear; sorrow; desperation) Passion must have been a result of adequate provocation (mere words are never provocation) Reasonable Person Approach-Would this provocation have enflamed the passions of a reasonable person (Majority) o Who is a reasonable person? Law individualizes, court will look at actual D in the specific case. Considerations: Yes: age, gender, height/weight, 3

physical/mental handicaps; Maybe: mental illness, cultural background; Not likely: temperament Categorical Approach- (MAWDA) o 1. Assault/Battery o 2. Mutual Combat (enter into conflict willingly) o 3. Adultery o 4. D has been illegally arrested by V o 5. Witness someone abusing a relative Cooling Time - Actor must not have had a reasonable opportunity to cool off (i.e. No long gaps between provocation and killing) Rekindling - Some jurisdictions allow for rekindling (reigniting of the heat of passion/provocation)

****Analyze both Common Law Approaches - Reasonable Person & Categorical - in an exam to determine if there was adequate provocation MCP Approach (1/4) o Extreme Mental/ Emotional Disturbance (Casassa) Must have reasonable explanation or excuse for having EMED - Does Court think there is reasonable mitigation for level of homicide to be knocked down? Not only passion, takes into account more disturbances I.Unintentional Homicides A.INVOLUNTARY MANSLAUGTER (act + cause death + negligence/recklessness) Common Law Approach: Negligence (Welansky) o Did D do something that created a substantial and unjustifiable risk? Does not matter if D did not know of the risk, if he did not take proper precautions MPC Approach: Recklessness o Look for conscious knowledge and reckless disregard about the risk A.NEGLIGENT HOMICIDE (act + cause death +unintentional negligence) MPC Only A.MURDER BY DEPRAVED INDIFFERENCE (Depraved Heart)/Extreme Reckless. (act + unintentionally cause death + gross recklessness) (Malone) Gross recklessness = coldly, callously disregard substantial & unjustifiable

risk MURDER WITH INTENT TO INFLICT SERIOUS BODILY HARM (intent to inflict serious bodily harm, but not intent to kill + cause death) Serious Bodily Harm = break bones, disfigure, knock unconscious etc. A.FELONY MURDER (act + attendance circumstance (felony) + cause death) No required mental state, this is a strict liability crime, that can occur while attempting, during commission, or fleeing after the commission of a felony o Fleeing lasts only until offender reaches point of temporary safety o Different jurisdictions consider it 1st vs. 2nd degree murder Eggshell Skull - Take Your as Victim as You Find Him- Even if victim has some unexpected vulnerability or weakness, D will still be liable for victims death, as long as there is a direct casual link between Ds felony & the death of the victim Policies/Issues Argued that its justifiable b/c it deters criminals from committing felonies, or that they will now be more careful. If criminal is going to commit felony they must be held responsible for any proximate deaths. Counterarguments that criminals dont do cost analysis and shouldnt we just raise the punishment of felonies to encourage deterrence? Moral Luck Problem - should punishment be affected by luck or entirely dependent on the characteristics of the person who committed the crime? Cause of Death/Murderer Issue- does a person who causes a death deserve to be punished like murderer? Limitations/Requirements (both must be satisfied) Inherently Dangerous Felony Requirement o Abstract Approach - look at felony in abstract, do not take into account facts of actual case, but look at raw elements of crime, would the crime be an inherently dangerous felony? (Phillips Quack Doctor) Fraud - Not Inherently Dangerous Arson Inherently Dangerous Selling cocaine - *JURISDICTIONAL split o As Committed Approach - look fact facts & circumstances in which the specific crime in question was committed. (Stewart Crack Addict Mom) Independent Felony Requirement o Independent Felonious Purpose - actor can only be guilty of felony murder if the felony was independent from the death. Purpose

of felony was not inflicting the injury that led to death. *Prevents other homicides from turning into felony murder. 3rd Party Killing Limitations o 1 person commits a felony and as a result, a 2nd person dies, 3rd person is the killer (Ex. Joe is robbing a bank, the bank guard shoots at Joe, but the bullet hits a customer in the bank instead. Can Joe, be convicted of felony-murder?) Agency Approach (limitation) - Felon is responsible for any killings by his agent, someone who has agreed to commit the felony and is acting in furtherance of that agreement. If 3rd party kills the agent, 1st party is not held responsible for agents death. Proximate Cause Approach - Felon is responsible for any deaths that his felony proximately caused Reasonable Foreseeability Approach - D is guilty of felony murder for a killing committed by a 3rd party during the felon so long as the killing was reasonably foreseeable as a result of the felony A.MISDEMEANOR MANSLAUGHTER (act + cause death + commission of misdemeanor) No criminal mental state is required Most courts imposed an inherently dangerous misdemeanor requirement Example: Running a red light which results in the death of a bystander

HOMICIDE CHART
Murder (Four kinds) Type With ITK With DI / ER With ISBH Felony murder Vol MS (CL) Vol MS (MPC) Invol. MS (CL) Invol. MS (MPC) Misd. MS Act R (An act or Death qualifying omission) AC --MS Intent to kill * Depraved Indifference / extreme recklessness Intent to inflict SBH -IMPORTANT NOTE Each of these 4 kinds of murder can be said to be committed with malice aforethought **

-Felony ----Misd. --

Manslaughter (Five kinds)

ITK, but HOP ITK, but EMED Negligence Recklessness -Negligence ***

Negligent Homicide

* As the chart shows, a killing committed with intent to kill is murder. As discussed in class, in many jurisdictions you must also determine what degree of murder it is. In these jurisdictions, an intentional killing committed with premeditation is a first-degree murder; an intentional killing without premeditation is a second-degree murder. And, as discussed in class, jurisdictions have developed different definitions of premeditation (eg, the Guthrie approach and the Carroll approach). ** As discussed in class, some jurisdictions continue to use the classic definition of murder: murder is the unlawful killing of a person with malice aforethought. Please remember that the term malice aforethought is an umbrella term: it can be satisfied by any one of four different mental states: (1) intent to kill, (2) depraved indifference, (3) intent to inflict serious bodily harm, or (4) killing in the course of a felony. (The last one is not really a mental state, but it is nevertheless counted as malice aforethought.) For the purposes of this course, you must know the four distinct kinds of murder described in the chart; you must also know the classic definition of murder; and you must understand the relationship between them (namely, that the classic definition includes the four distinct kinds of murder). *** You may have noticed that negligent homicide has the same elements as Involuntary Manslaughter (CL). Please note that jurisdictions that use the CL approach to manslaughter do not have the crime of negligent homicide (since they would overlap with each other).

THE ACT REQUIREMENT Formula: A (+R)+AC+MS = (ACT (+RESULT) + Attendant Circumstance + Mental State) Act - Described in a type of conduct Result - What the act brings about Attendant Circumstance - Some further circumstances that must have been true for D to be guilty of the crime/not every crime has this (i.e. felony for felony murder) Mental State - Must prove D had a certain state of mind to be guilty of the crime Examples Murder Involuntary Manslaughter Felony Murder Selling Drugs Selling Drugs Near a School Act An Act An Act An Act Sell drugs Sell drugs Result Cause death Cause death Cause death AC Arson Within 1000 ft. of a school Intent Intent and... Intent Recklessness/Neg. MS

Voluntary Element Requirements Must actually do something and act must be voluntary Non-Voluntary Acts (Look to choice and awareness) - Physical coercion; Seizures/reflexes; Unconsciousness; Sleepwalking; Hypnotism (Juris. split) Omissions (Failure to Act) General Rule - A person has no criminal law duty to act to prevent harm to another, even if the person is imperiled and may lose her life in the absence of assistance. However, in certain circumstances some omissions can hold a duty to act. 5 Circumstances When Omissions are Treated as Acts: o Status Relationship Parents/Stepparents to their children; spouses to one another; employer to employee (Must be a legally dependent relationship) No siblings to each other, parents & adult children to each other; live in bf/gf to non-biological children o Contractual Obligation

 Doctor to a patient; babysitter to child; nursing homes o Statute Good Samaritan Law - If the person has a legal duty (conferred by statute) to act but fails to act. There is a duty to act when a statute in that jurisdiction imposes such. (i.e. Doctors have a duty to report abuse) o Omissions Following an Act Assumption of Care/Voluntary Assistance - If one voluntarily begins providing aid they must finish, to avoid putting victim in a worse position then they were in before Creation of a Risk - a person who wrongfully harms a person or their property or places one in harm, is responsible to help that person from the situation the actor created

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THE MENS REA REQUIREMENT Mens Rea is an Actors mental attitude towards his acts. Mental state must be broke apart into elements, cant answer it in 1 sentence. MPC Mental States Purposely - conscious objective of what D wants to accomplish Knowingly - aware that it is practically certain (99.9%) that the result will happen Recklessly - actor consciously disregards, a substantial and unjustifiable risk of which he was aware of the probability and the magnitude. Substantial means a high likelihood that the crime will occur Negligently - should have known that the conduct created a substantial and unjustifiable risk o Gross deviation from standard of care a reasonable person would have ***Recklessness is the default mental state for any crime that does not explicitly convey a mental state requirement. For example, statute it says, It is murder to kill a person. (no mental state show so add Recklessness) ***Any higher mental state can still satisfy a lesser mental state Act Murder Manslaughter Negligent Homicide An Act An Act An Act Result Cause death Cause death Cause death AC MS Purposely OR knowingly Recklessly Negligently

Common Law Mental State Terms: Intent - can be satisfied when actor acted with either purpose or knowledge Transferred Intent - does not apply if the D succeeded in their actual 11

objective Willful - usually with purpose or knowledge, AND with awareness of illegality Malice - purpose or knowledge or recklessness General Intent actor had a culpable mental state, that does not rise to the level of specific intent, to commit the initial action, but not necessarily resulting actions Specific Intent - actor intended not only to do the act, but also to bring about some further consequence (2 Tier mental state) Conditional Intent - conditional purpose counts as intent. (i.e. Criminal intends to hijack a car and only kill the victim if he resists. He doesnt resist so criminal doesnt kill him.) Doctrine of Willful Blindness - treated as knowledge (worse than recklessness) o Aware of a high probability that some fact was true o Purposely avoids learning truth Strict Liability Strict liability is a rule of criminal responsibility that authorizes the conviction of a morally innocent person for violation of an offense, even though the crime, by definition, requires proof of a mens rea. Mental state is not taken into account; the act only of committing certain crimes is enough. (i.e. statutory rape) Issues Clear Legislative Intent o Look to see if there is a clear legislative intent to impose a mental state requirement on the crime. Regulatory Law o Mala in Se (Evil In Itself) crimes are NOT regulatory (ex. Murder/Rape) o Crimes that incur serious & widespread punishment are NOT regulatory o Socially beneficial but potentially dangerous. Something that can be done to benefit people but if done carelessly is dangerous IS regulatory Ad Hoc Crimes (Concrete) o Statutory Rape o Felony Murder Public Welfare Offenses o Health, safety, welfare of the public. A single violation of such offense can simultaneously injure a great number of people o The standard imposed by the statute must be reasonable (i.e. a fine) o Rarely damages the reputation of violator

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Exceptions If it is a new statutory crime; The policy behind the statute will be undermined; Standard imposed by the statute is reasonable; The penalty is minor; and Conviction does not have a social stigma. ***Dont add a mental state to a crime if it is clear that the legislature did not means to add one. The leg. not including a mental state is not enough to conclude legislature meant for none to be used. Look for language such as without regard to mental state

I.CAUSATION Actual Cause (factual cause) Apply but for test. But for the defendants action would the crime have occurred. Proximate Cause (legal cause) Apply foreseeability test. Was it reasonably foreseeable that the defendants action would result in the crime? (Acosta) Eggshell Skull Exception: Take Your as Victim as You Find Himeven if victim has some unexpected venerability or weakness the court will not take that into account (Stamp) Intervening Cause An independent force, which only comes into play after the defendants voluntary act or omission has already been committed, it is another but for cause that contributes to the defendants previous voluntary act; e.g., the intervention can occur as a result of wrongdoing by a third party, as the result of a dangerous or suicidal act by the victim, or a natural force ("an act of God"). When an intervening cause contributes to the social harm, the court must decide whether such intervening cause relieves the defendant of liability. If so, the intervening event is deemed a "superseding cause" of the social harm. 13

Superceeding Cause Intervening causes that break the chain of causation (Relieves D of liability) Factors: (Look at them as a group) o Foreseeability of the Intervening Cause If it is foreseeable then it is not a superceeding cause o Contribution to the result If the actors causal responsibility for the ensuing harm is exceptionally insubstantial in comparison to that of the intervening cause then it is a superceeding cause, the law will treat the original action as a proximate cause of the harm o Responsive When an act occurs as a result of the defendants prior wrongful conduct. Generally, a responsive intervening cause does not relieve the initial wrongdoer of criminal responsibility, unless the response was highly abnormal or bizarre. (i.e. a defendant who wrongfully injures another is responsible for the ensuing death, despite subsequent negligent medical treatment that contributes to the victims death or accelerates it. However, grossly negligent or reckless medical care is sufficiently abnormal to supersede the initial conduct o Intent Was the Defendant was trying to bring about the ultimate result? Intervening Cause in Human Acts: Intervening person caused ultimate result by mistake. o A defendant may be held criminally liable for the death of another where there is evidence that defendants conduct was a proximate cause of the resulting death. o D invites X to go drag racing. X then wrecks his car and kills V. Xs actions were not an intervening cause. D still on the hook. (McFadden) o When D does something that does something to contribute to the Vs injury, apply same 4-factor analysis for intervening cause cases for this. Intervening person intentionally causes ultimate result. o Intervening human actor, who intentionally causes the ultimate result, is a superceeding cause, breaks the chain of causation and lets the Defendant off the hook. BUT when the intervening human actor who causes the ultimate result is irresponsible, then case defaults back to 4-factor test. (Stephenson) o Actor are irresponsible when: 14

 1. Mentally ill 2. Intoxicated 3. Under duress 4. In emergency or crisis situation 5. Suffering emotional distress o D acts, X acts, result. Court says Xs actions were superceeding cause, because human beings have FREE WILL (Kovorkian)

A.RAPE Mental State Element Intent is the required mental state for rape Model Definition: Intercourse without consent by force, threat, fraud or where the victim is unable/incapable of consent. (Majority of jurisdictions do not have this definition) 1.1) Sexual intercourse At least slight penetration, and Law sometimes will recognize other sexual contact 1.2) Without consent Unwilling, unwelcome o External (communicating) - V must show that they demonstrated by words or conduct that the V did not want to engage in the activity 15

o Internal (mental) What counts as non-consent? Many jurisdictions its physically fighting back Would a reasonable person have understood that a V was not consenting? Shifting the burden: D offers a defense that there was consent (not all jurisdictions have adopted this) 1.3) By force, threat, or fraud, or where victim was unconscious/incompetent Force - no injury, no proof of resistance-can force element be satisfied? Today, YES Threat - whether the victim reasonably feared bodily injury o Fear must be reasonably o Can threats to commit economic or reputational harm? Most say NO. o Implicit threats are recognized. But, in real world litigation judges & juries have been insensitive (Rusk) o Express threats Fraud - Deception regarding the act of intercourse o V is unconscious or incompetent (mentally impaired) o Medical procedure o Exceptions: lying about loving someone or promise of marriages does NOT count for purpose of this element A.Resistance Requirement 1. Used to be universally required to satisfy elements, if the V didnt resist in every way possible the D could not be convicted of rape 2. Then, some Courts required reasonable resistance-that a reasonable person would understand that there was consent (must be resistance sufficient to show no consent) I.Unlawful Requirement Jurisdictional Split: intercourse (rape) btw husband and wife is lawful, some say its not Husband who engage in what would otherwise be rape in jurisdiction that dont recognize it as unlawful, can still be prosecuted for aggravated battery or assault A.Mistake Defense (What if V was not consenting but D really thought V was) Negligence Approach o D must have been at least Negligent, AND o D Reasonably and honestly believe there was consent, but shouldve known Recklessness Approach

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o More protective of D than the Negligence approach o ONLY guilty of rape if D made a reckless mistake (neg or reasonable ok) Strict Liability Approach o Ds mistake is irrelevant, mistake is no defense

***Look at a fact pattern on an exam, start by working though the 3 elements of the model definition (intercourse, without consent, force/threat/fraud/incapable of consent), Secondly, work through the additional issues (resistance, unlawful - make sure to note jurisdictional splits). Finally, only if the fact pattern suggest the possibility, discuss the mistake defense discuss which of the 3 approaches the defense would fall under). A.STATUTORY RAPE (Strict Liability) 1. 2.Engaging in sexual intercourse with a victim who is underage (typically under 18) 3. 4.There is no mental state requirement. Even reasonable mistake by defendant of victims age is no defense. If the facts suggest the not only the victim was under age but also force against consent, look to apply a regular rape charge. Defenses: D and V were within 2-3 years of each other then it is not Statutory Rape, not followed in every jurisdiction 2 Categories: -Under 12 yrs of age is punished by similar sentences to Rape -If V is older than 12 and consented, than it is a less serious crime SUBSTANTIVE CRIMES (Common Law Only) BATTERY (Result Element Required) Reckless or Intentional unlawful applied force to another person and there by caused bodily injury or offensive touching. (Must have physical contact) Intentional or Reckless Unlawful Application of force to another person o The application of force maybe Direct or Indirect Causing Bodily Injury or Offensive Touching (Must do causation analysis) o Can be done by voluntary act or voluntary omission under the rules o Bodily injury (physical injury, poisoning someone) Is a mere bruise w/o pain deviation from bodily injury? 17

Some: yes. o Offensive touching (unwanted sexual contact, spitting, if it offends a reasonable sense of personal dignity) Aggravated Battery-battery with the INTENT to kill, or cause serious bodily injury Defenses to Battery: Parents and schools are authorized to use some of force to control children/pupils. Consent Serious limitations (i.e. tattoo painful but typically done w/ consent) ASSAULT (Used When An Attempt to Batter Fails) 1.Attempt to Batter Must have had intent to batter and taken a substantial step/dangerously close/proximity to battery I.2.Cause Apprehension of Battery Must intentionally cause the victim to have a reasonable apprehension of imminent bodily harm (battery). (look to Vs mental state) D cannot be convicted of both Battery and Assault when Battery happened, except when they arise from separate acts. Prosecution can chose to only convict of Assault. Both: Felony, more than a 1 year in prison, up to 20 yrs or more. I.KIDNAPPING 1.To intentionally (with purpose or knowledge) unlawfully confine or move a victim without consent by force, threat, or fraud Intentionally (purpose or knowledge) o If accidental or D thought what they were doing was lawful/not guilty Confine o Direct - grabbing someone o Indirect - locking a door Move - traditional approach - some jurisdictions say that the movement must put the person in more danger When D doesnt satisfy ALL these elements: may be False Imprisonment. Cant overlap crimes with this one, unless D moves V substantially more than normal from the other crime. Law seeks to avoid double punishment. ROBBERY (part of the family of theft crimes) (frightening-taken in Vs presence) Taking property from Victims person or presence of Vs person without consent by force of threat, with intent to permanently deprive the V of the property Take Property - D must do something to acquire control. (Taking gum from a 18

store and putting it in Ds property. Just picking it up is not likely to be sufficient) o Traditional: The property must have been tangible. o Modern: property is defined as, thing of value an amorphous concept From Vs person or presence - from them personally, not sneaking into house and taking a ring, literally take it off of Vs person By force or threat - physically coercion-taking something off of someone With intent to permanently deprive the V of the property intent requirement take property intending to keep it for themselves and/or not give it back o Example: D takes Vs painting and burns in, then puts ashes into jar and gives it back. Did V intent to permanently deprive V of painting? Yes, if intent was to burn in and then return in, b/c value is destroyed. 1. 2. Distinguished from: EXTORTION - exactly like robbery but different by (#5) Threat of FUTURE force. (ex. Give me your wallet or else tomorrow my buddies will break you leg.) Robbery Defenses Claim of Right Defense: person says that had a right to take the property b/c it as mine. Must have a good faith belief property is yours. ***Jurisdictional Split - Can NEVER be a defense in robbery b/c it was a violent crime. Some say if you can satisfy 2 elements you are not guilty of Robbery, but might still be guilty of other crime. (Battery or Assault) BURGLARY Breaking and entering anothers dwelling or business with specific intent to commit a felony therein. Breaking - physical act to get access w/o consent or by threatening someone. Does not require that you actually break anything Entering - cross the threshold-physically or an extension of D Must meet the specific intent requirement from the initial decision to commit the burglary, can not have formed the intent after already inside. Further, even if once inside D decides not to commit the felong, they are still gulty of burglary because she had initial intent. A D who breaks in & commits a felony will be guilty of 2 crimes. (Burglary & Another) CRIMINAL ATTEMPTS Mental State Element General Rule: D must have had the specific intent or purpose for

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committing the target crime o Reckless Endangerment - recklessly creating risk of serious injury Attendant Circumstances - only need knowledge of AC Unintentional crimes? o Can a D be guilty of attempting an unintentional crime? No Intent. o Cant have the purpose of endangering someone by mistake Act Element (at what point have you done enough to be guilty of attempt?) Jurisdictional split Common Law (MAJORITY) o Dangerous Proximity Approach (Rizzo) Dangerously close to success Must have become dangerously close to committing target crime Ex. Bomb under the bed (if V was not on vacation) Would D have succeeded But For some interference? If answer is YES, its a factor in strongly suggesting that D was dangerously close and is guilty of DPA MPC o Substantial Step Approach (Jackson) Person must do more than just mere preparation. Must have been actively trying Attempt Defenses 1. Abandonment - If D abandons attempt, then D wont be guilty of a criminal attempt. (policy is amnesty as an incentive for D to not commit the crime) o Abandonment must be complete & voluntary. Postponing is not completely abandoning. Also not abandonment if D stops b/c he realizes he might be caught/detected/apprehended or its more difficult) 2. Impossibility - Argument that D could not have succeeded no matter how hard they tried. o Common Law Approach Factual Impossibility - under the circumstances it wasnt possible for the D to complete ACT element of target crime I.e. D pulls trigger, but no bullets in the gun (Dulash killing someone whos already dead?) Legal Impossibility - D was able to commit the ACT, but not the Attendant Circumstance I.e. D sets out to buy stolen property, buys property but its not stolen = not satisfied Attendant Circumstance

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On Exam: Watch out for D attempting a crime, but something keeps him from completing it. Then decide which approach. o MPC Approach (*Impossibility is almost never a defense*) Factual Impossibility - If D conduct wouldve been a crime, if the circumstances wouldve been as he expected them to be, he would be guilty of criminal attempt Incomplete Attempts: if D had the purpose of commit the crime and took a substantial step toward committing the crime. Completed Attempts: If you purposefully did the conduct required for the crime, but some attendant circumstance wasnt satisfied you would be guilty of attempting the crime if you would have been guilty of the completed crime if the circumstances had been as you thought they were/ I.e. Pick pocket picking an empty pocket = crime Legal Impossibility = GUILTY I.e. Dulash (killing someone whos already dead?) YES under MPC 3. True Legal Impossibility - if D sets out to commit a crime that is not really a crime, even if they succeeded, they would not be guilty of a crime. o I.e. Dr. goes to perform an abortion in a state where its illegal, on a non pregnant woman 4. Implausible Attempts - D thinks he could kill someone with his thoughts, cannot be guilty Court will have the authority/discretion to: 1. Reduce sentence, or 2. Throw out Prosecution entirely

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ACCOMPLICE LIABILITY (could also be an Conspirator) To be guilty of being an accomplice D must possess specific intent or purpose to aid or encourage the primary actor in committing the target crime. D will be guilty of the same crime as the primary actor. D does not have to cause the crime. He just has to help or encourage some how (there is no causation but for test). Accomplice liability is an alternative to causation to hold a person liable for a crime. It is not a crime, it is a doctrine used to determine liability. Mental State Element Specific intent (CL), or Purpose (MPC), it was the goal, desire, conscious object to help Primary Actor to commit crime Attendant Circumstances + Results Accomplice only needs to possess the same mental state that the primary actor would have need to actually commit the crime. So look at the elements of the target crime and find what mental state the primary actor needed. ex. Statutory Rape - accomplice must have the purpose or specific intent of aiding or encouraging the act element (here, intercourse) Alternative Approaches Fountain Approach-for accomplices where the primary actor committed a serious crime, knowledge is enough to be convicted of the crime. o Hypo: Is the 7/11 clerk selling plastic baggies to the drug dealer a serious crime? He is guilty of accomplice if he provides the means or opportunity, and do it believing that its probably that he is helping them to commit the felony Criminal Facilitation-if you recklessly help an actor commit a crime you are not guilty of accomplice, just criminal facilitation, not guilty of murder or crime but of a lesser one Foreseeability Consequence Rule (Luparello - Juris SPLIT) o 1. D must purposely aids or encourages one crime, AND o 2. for any further crimes that the actor(s) commit D will be liable as long as it was foreseeable consequences in addition to the first crime. o Controversial-a back door strict liability, punishing someone who really had no idea another crime would happen

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Hypos: A & B are robbing a bank. B goes inside the bank, and A stays outside in the get away car. If B kills the bank mgr, is A guilty of murder as well? Yes, b/c it entirely foreseeable that in robbing a bank someone will be killed. What if B goes inside the bank and sexually assaults to bank guard. Is a guilty of accomplice? No, b/c it is NOT foreseeable when D commit bank robbery sexual assault will be involved. Act Element Common Law - accomplice must actually, successfully provide some aid or encouragement (just a sliver) to the Primary Actor. If aid never reached the primary actor, then not an accomplice (Wilcox - mere presence is not enough) MPC - if D actually, successfully aided or attempts to aid or encourage, regardless of whether it actually reaches the primary actor, still an accomplice. Mere presence or failure to stop a crime does not make you an accomplice, but if you tell the primary actor that you will help him, if needed, but your help is ultimately not needed, you are still guilty of being an accomplice Accomplice Defenses Abandonment Defense - D must establish: o Abandonment o Voluntarily o Completely o Communicate withdraw - must tell PA that D has changed his mind o Make an effort to neutralize the PAs crime (ex. taking back gun) Victims victims cannot be held to accomplice liability. (i.e. statutory rape) Necessary Parties - when a crime is defined such that it needs a 2nd willing participant, they are a necessary party and cannot be convicted as an accomplice Innocent Agents A person cannot be convicted of being an accomplice if they are not aware that they are aiding the primary actor.

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CONSPIRACY (could also be an accomplice) Act Element Agreement communication link with another mind, shared intent & mutual goal. Agreement can be inferred by circumstantial evidence Overt Act (SPLIT) - a step towards actually committing the target crime; mere preparation can count as long as its an act forward. Policy: some jurisdictions are hesitant to prosecute just for an agreement Mental State Element Purpose/Specific Intent to agree AND purpose to promote the target crime. Lauria Inferences: When evidence shows that D knowingly promoted the target crime/had a stake in it, a leap can be made that there was PURPOSE. Look to see how many agreements were made each instance of agreement on separate crimes counts as a new instance of conspiracy. (i.e. agreeing to commit 2 bank robberies & 1 murder.) Punishment Split target crime punishment in half. ex. target crime = 20, conspiracy=10 yrs Give an overall punishment, ex. conspiracy =5 yrs, regardless of target crime, Give conspiracy same amount of time target crime would have Additional Issues Plurality Rule (SPLIT) - both people must be in total agreement. For example, undercover cop sets D up, is D then guilty of conspiracy? Under CL no, b/c there arent two people really agreeing. Many have rejected this & say unilateral agreements are ok Pinkerton Rule (SPLIT) - Conspirator will be convicted if the co-conspirators commit crimes in furtherance of the original conspiracy & those crimes are reasonably foreseeable. Other Jurisdictions - 1st Conspirator is only liable for other conspirators crimes if he qualifies as an accomplice to those crimes under normal

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accomplice analysis (i.e. purposefully aided the other conspirator in their crime) Conspiracy Defenses Abandonment Some Jurisdictions say it will completely remove D from liability. Others say it will only get D off for other crimes than conspiracy. D must establish: o Abandonment o Voluntarily o Completely o Communicate withdraw - must tell PA that D has changed his mind o Make an effort to neutralize the PAs crime (ex. taking back gun) Victims victims cannot be held to conspiratorial liability. (i.e. statutory rape) Necessary Parties - when a crime is defined such that it needs a 2nd willing participant, they are a necessary party and cannot be convicted of conspiracy. Except: if a NON necessary party is added, everyone is now guilty of conspiracy Innocent Agents A person cannot be convicted of being an accomplice if they are not aware that they are aiding the primary actor. You can be guilty of conspiring with people youve never met, know, or communicate with. Courts will look at you knowledge of the scope of the conspiracy and whether you have something at stake.

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DEFENSES Justification Self-defense Defense of others Not considered to have committed a crime in circumstances b/c it was necessary Doesnt say anything bad about actors character Can be carried over to others Insanity Duress Admit to committing a crime, but because of special circumstances it was ok Bad character on actor Cannot be carried over to others Excuse

Justification: Defendants actions area crime but D not liable under the circumstances. SELF- DEFENSE (Justification) Self-Defense occurs where D reasonably believes; force is necessary to protect himself; from an imminent; and unlawful attack; and the force that he uses is proportional to the threat; and he were not the first aggressor. Elements Threat: must be Imminent AND Unlawful (deadly or to inflict serious bodily harm). Force: the force used by D in return must be Necessary AND Proportional First Aggressor: D must not have done something unlawful that is reasonably calculated/likely to evoke a violent response o When the First Aggressor withdraws and communicates his

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withdrawal, they are no long first aggressor o Where D is the First Aggressor, but the other party escalates the aggression, then the first aggressor will usually be allowed to claim SD Reasonable Belief: D must reasonably believe that the threat was imminent, and unlawful. He doesnt have to be right. Retreat Rule v. True Man Rule Retreat Rule: requires a D to retreat if he can with complete safety. True Man Rule: D is allowed to stand and fight even if he couldve retreated A. Castle Doctrine Even if D is in a Retreat Rule jurisdiction, he does not have to retreat if he is in his own home (What if attacker is a co-inhabitant? SPLIT: some say stay, others say to retreat) Imperfect Self-Defense If D believed all the necessary elements were true, but was unreasonable in thinking so then Self-Defense can only used as a partial defense (i.e. murder down to manslaughter) DEFENSE OF OTHERS (Justification) I.Two Approaches: Majority: Reasonable Belief (Ds belief) - D must show that he reasonably believed (only reasonable not necessarily true) that the victim was facing ALL the necessary elements of Self-Defense (basically that the victim could claim SD in his own right) Minority: Alter Ego (Vs belief) - Put D into the victims shoes, D must prove that the victim could definitely claim self-defense. Reasonable belief is not enough. If the person would not have had a defense than D can not claim defense of others NECESSITY (Justification) Lesser of Two Evil Defense. D must have reasonably believed it was necessary to commit a lesser crime to avoid a greater crime Common Law D faced with imminent harm from a natural threat and D reasonably believes the crim is necessary to avoid the greater harm and his action is the Lesser Evil MPC Does not require imminent harm or natural threat and allows a defense to homicide

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Limitations Clean Hands: D must not be at fault in anyway. (i.e. joining a criminal organization, the mob, D culpably put himself in the situation & cannot claim duress) Homicides: D can never claim a defense of necessity if he kills someone Excuse: It is wrong to hold the D responsible under the circumstances INSANITY (Excuse) Cognitive test: Not responsible if actor did not understand what she doing Volitional test: Not responsible if actor cannot control actions MNaghtens Rule (Common Law Approach) D is not responsible if at the time of act D was suffering from defect or disease of mind; and did not know the nature/quality of the act; or that the act was wrong. To show guilt one would have to show that D knew he was acting contrary to what is right Qualifying Mental Elements Disease - seriously disruption of mental/emotional processes, or ability to control behavior (can get better) Defect-brain damage (cannot get better) Drug addiction or anti-social personality disorders WILL NOT count Split: Some court look at if D did not know what he was doing, or that it was wrong (what most people think is wrong); others look to see if D knows that the law says it is wrong In many jurisdictions: finding D insane equals automatic committal to mental institution where the state may keep D until he is no longer ill, or a danger to himself or others MPC Approach D is not responsible, if at the time of conduct as a result of mental disease or defect D lacked substantial capacity to appreciate the criminality/wrongfulness of conduct or to conform conduct to requirements of the law Deific Decree D claims an order from God, will be treated as if the D did not know it was wrong DURESS (Excuse) Common Law D must reasonable believe that he is being coerced into committing a crime through threat of imminent deadly force against the D, Ds family, or an unrelated 3rd party and that the he has no other alternative (the commission of the crime is necessary)

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Threat to property, reputation, or business does not count. Limitations Homicides: D can never claim a defense of duress if he kills someone Clean Hands: D must not be at fault in anyway. (i.e. joining a criminal organization, the mob, D culpably put himself in the situation & cannot claim duress) MPC D coerced to commit a crime by threat or use of unlawful force on the D, Ds family, or an unrelated 3rd party, which a person of reasonable firmness in his situation couldnt resist. No imminent harm & deadly force requirement and does not rule out duress as a defense to homicide Threat to property, reputation, or business does not count. 1. MPC Reasonable Firmness Test: In the midst of threat of unlawful force, would a person of reasonable firmness have complied under duress (jury issue) Limitations Clean Hands: D must not be at fault in anyway. (i.e. joining a criminal organization, the mob, D culpably put himself in the situation & cannot claim duress) Imperfect Duress: In homicide cases, D can claim imperfect duress to mitigate murder down to manslaughter.

ENTRAPMENT Two Prong Test: The criminal design (plan) must have originated with law enforcement AND The Defendant must not have been predisposed to commit the crime. o Two Tests for Predisposition: Subjective Standard Majority Rule: Was defendant predisposed to commit the crime? Objective Standard Minority Rule: Look at governments inducement Would a reasonable person be induced to commit the crime by the officers acts? MISTAKE Mistake of Fact

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Common Law/Traditional o Ones mistaken belief of the circumstances may remove culpability, but only if it negates the mental state: Specific Intent Any mistake. An example is larceny because one must specifically deprive someone else of their property). Mistake negates the intent of permanently depriving someone of their property as long as there was a genuine belief. General Intent Reasonable mistake. An example is rape in which the violator genuinely believed he had the consent of the victim, but he would have to show that the belief was reasonable. o Exceptions: Moral Wrong Doctrine If an individuals belief was immoral or wrong, the court will remove the mistake of fact defense. Legal Wrong Doctrine: If what D thought he was doing taking into account a reasonable mistake was illegal; he cant use the mistake of fact defense Can not negate Strict Liability Crimes MPC/Modern o Defense only if negates mental state, regardless of specific or general intent o Exception: No defense if D would still be guilty of a crime had the facts been, as he mistakenly believed them to be. o Mitigation: Mistake will reduce defense to that of which he would be guilty if the circumstances were as he believed them to be

Mistake of Law General Rule: Ignorance/Mistake of the law is not a defense. o Exceptions: Statute: Statute requires knowing of the law (Ex: tax evasion) Lack of Notice: If D fails to comply with a law and was not given fair notice of the law. Fair notice would be any law that was passed and published and reasonably available. Cannot be convicted of breaking the law if you didnt have

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knowledge about the specific law. Very narrow exception. Reasonable Reliance Doctrine: a person is excused for committing a criminal offense if he reasonably relies on an official statement of the law, later determined to be erroneous, obtained from a person or public body with responsibility for the interpretation, administration, or enforcement of the law defining the offense.

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