Actus Reus_________________________________

Each crime includes an actus reus Verb of the crime killing of another human being o Killing = Actus Reus Words alone can constitute the actus reus o Solicitation, Conspiracy, Aiding & Abetting A person forced w/ a gun to rob a bank has still voluntarily committed the crime, may have defense of duress later on. Must be a voluntary act or omission where there is a legal duty to act We dont punish thoughts Your act must not be compelled by the government Should not be punished for being a specific type of person status crimes o However, while a D cannot be prosecuted for first amendment beliefs or a certain status they can be prosecuted for illegal acts taken for those religious beliefs or the status (difference between being a crack addict and injecting crack) Law cannot deter involuntary movements

Omissions - A defendant is ordinarily not guilty simply for allowing harm to come to another, even if the D could easily have helped prevent that harm. - An omission may satisfy the actus reus requirement for a crime if the D has a duty to act and fails to do so: 1. Statute Tax statutes create a duty to file tax returns; failure to file returns constitutes the actus reus for a tax offense. Statute may require educators to help children who are in harm and by failing to do so, could be criminally liable. Statute makes it a misdemeanor to engage in any act of cruelty to any animal or any act tending to produce such cruelty by leaving the dog to go across the country would be an implicit omission of liability under the statute MPC a duty to perform the omitted actotherwise imposed by law 2. Status Relationship Parents/Children Failing to feed a child Employers/Employees Spouses Owners/Customers Innkeepers/Guests Captains/Passengers 3. Contractual Agreement Babysitters Caretakers Person has agreed to assist another person and by failing in that agreement, could have criminal exposure b/c of omission. 4. Voluntarily assuming the care of another

D has often isolated the victim from the help of others. If the D indicates that she will care for the V and then abandons that duty, the D has an actus reus for the crime. Could get off on the theory of causation if but-for your held, the man might have died anyway Even w/ a duty to help, D is ordinarily excused from duty unless she can fulfill it w/o harming herself. If the D put the victim in peril, he has a duty to help the victim.

Model Penal Code 2.01 - MPC doesnt actually define voluntariness at all, just lists acts which are and are not voluntary
Situations where the D did not act voluntarily Reflex/Convulsion The truck in front of you loses a beam and it is headed straight for you and you yank the steering wheel to the left into an oncoming car killing the driver. A reflex implies the absence of deliberation Bodily Movement during unconsciousness/sleep Bodily Movement under hypnotic suggestion Bodily Movement not otherwise the product of the effort or determination of the actor (conscious or habitual) When a person is acting like an automaton b/c her brain is not engaged with the body, may have a claim that her act was not voluntary. Under the MPC, actus reus encompasses conduct, attendant circumstances, and result. Under the MPC acts done out of habit are still VOLUNTARY Person speeds down the road without thinking act of speeding still voluntary b/c absentmindedness and habit are not the same as involuntary acts. A habitual choice is simply a conscious choice unconsciously repeated As long as the Ds actions INCLUDE a voluntary act, the defendant is culpable. If you drive tired/drunk/fishing around for something in the car the court is likely to find a voluntary act if you driving while tired/intoxicated, inattentive while driving

Mens Rea__________________________________
There is no crime w/o a vicious will Culpability is the extent to which a Ds mental state shows the D deserves to be punished for his acts. Mens Rea requirement only focuses on levels of awareness and intention with which the D acted Particular mental state provided for in the definition of an offense

Common Law
1. Maliciously D realized the risks her conduct creates and engages in the conduct anyway (MPC = Recklessness) D foresaw that his acts might cause harm but he nevertheless engaged in them

 D knew he was taking a risk and disregarded it. 2. Intentionally (distinguished between specific/general) (MPC = Purposely/Knowingly) D had the purpose to cause a specific harm. D is aware of the harm she is likely to cause, although that harm is not her primary aim If a D wants to destroy the briefcase her competitor is carrying and she plants a bomb on the competitors plane to do so, the D has still acted intentionally as to the competitors death. 3. Negligently Not exercising the standard of care a reasonable person would have under the circumstances Letting a small child play with a boa constructor if child is killed, its enough. Serving rancid sushi to ones guest not enough for criminal liability depending on why the mistake was made 4. Willfully Doing an act with the purpose of violating the law. Person who decides she doesnt believe in the tax laws and wants to protest them, acts willfully if she does not file a tax return. Willfully can also cover situations where the D doesnt necessarily want to protest the laws, but intentionally does an act that has illegal consequences A person who has nothing against the tax laws but knows that she should pay her taxes acts willfully if she does not file her tax returns.

Model Penal Code 2.02

1. Purposely A person acts purposely if it is the Ds goals/aim to engage in particular conduct or achieve a certain result Intent To is often used in statutes to indicate that the D must have a specific purpose in mind when she commits an unlawful act i. To be guilty of burglary, the D must enter a building with the purpose of committing a crime in that building, if D does not enter with that specific purpose, she may be guilty of trespass but not burglary. Specific Intent To is used in a statute is also a signal that the level of mens rea is purposely Highest level of mens rea under the MPC most crimes do not require this high of level i. PREMEDITATED MURDER REQUIRES THAT DS HAVE A SPECIFIC PURPOSE IN MIND 2. Knowingly A person acts knowingly if she is virtually or practically certain that her conduct will lead to a particular result i. If you shoot at a car w/ the purpose of breaking its window but know that it is virtually certain to kill the occupant of the car, D has acted knowingly w/ respect to occupants death. Often used in statutes prohibiting knowing possession of narcotics

i. Prosecutors MUST SHOW that the D knew that the substance in her possession was a narcotic. Willful Blindness: i. the courts will often recognize that conscious avoidance of confirming the contents of the suitcase is the equivalent of knowing the contents and therefore the Ds willful blindness if not a defense. Might not be your purpose but you should know that the result would happen

MPC2.02(7): When we need to establish knowledge, a conscious disregard of facts satisfies knowledge 3. Recklessly A person acts recklessly if she realizes that there is a substantial and unjustifiable risk that her conduct will cause harm but consciously disregards the risk. i. D who is late to work takes a shortcut and drives her car through a local playground and hits one of the many children playing on the playground. D subjectively realized that there was a risk of hitting a child and she took the risk anyway Gross deviation from the conduct of a law-abiding person when the D knew she was taking a risk makes the Ds intent reckless. RECKLESSNESS IF THE MINIMUM MENS REA STANDARD FOR MOST CRIMES!!!!! GENERAL INTENT MALICIOUSNESS = RECKLESSNESS **If no mens rea is given for a particular offense, the mens rea is established if the person acts purposely, knowingly or recklessly** 4. Negligently Usually crimes that cause grave harm to other persons only require that the D act negligently. A person acts negligently if she is unaware of and takes a risk that an ordinary person would not take. If a D is unaware that her child is suffering from a life-threatening illness, but an ordinary person would be aware, that D acts negligently if she does not seek medical treatment for the child. Objective Standard focus is not on the Ds state of mind, but on what an ordinary person would have known and done in the Ds situation. MPC 2.02(4): Jurisdictional requirement is not a material element of the crime and thus is not required for mens rea. MPC 2.02(6): One can be found guilty of a mens rea even if it was conditional of a victim not acquiescing to Ds demands.

Ambiguous Culpability Requirements

What part of the statute does the mens rea apply too?

MPC 2.02(4): When the law defining an offense prescribes the kind of culpability that is sufficient for the commission of an offense, w/o distinguishing among the material elements thereof, such provision shall apply to all the material elements of the offense, unless a contrary purpose plainly appears Material Element An element of an offense that does not relate exclusively to the statute of limitations, jurisdiction, venue, or to any other matter similarly unconnected with the harm or evil, incident to conduct, sought to be prevented by the law defining the offense, or the existence of a justification or excuse for such conduct A state of mind spelled out at the beginning of a statute travels to all the material elements of that statute unless the legislature expresses a clear indication that it should not Carefully follow the rules set out in 2.02(4) and remember that reckless is the minimum culpability if the prescribed state of mind does not extend to a material element.

Specific Intent v. General Intent

General Intent Crimes that only require that the D intent to commit the act that causes the harm. D NEED NOT INTEND THE CONSEQUENCES OF HER ACTS D is charged w/ battery for hitting a victim. Battery is a general intent crime. It is sufficient then that the prosecutor prove that the D intentionally swung her arms in a manner that might hurt someone. Does not need to prove that the D intended to inflict a particular harm on the victim when she swung her arms. ACTING IN A RECKLESS MANNER, D WILL SATISFY THE REQUIREMENTS OF GENERAL INTENT Specific Intent Crimes that require a higher level of intent. Solicitation/Conspiracy/Attempt Prosecution must prove that the D acted either w/ the specific purpose to cause the harm or while knowing the harm would result. With Intent To, Further Intent Burglary D must enter a building w/ the intent to commit a felony inside. The requirement that the D have a specific purpose when she engages in her unlawful conduct makes the crime a specific intent crime. Distinguishing between specific/general intent crimes is most important regarding the defenses that a D may use!! Intoxication Diminished Capacity D is claiming that she could not have formed the purposeful intent required to be guilty of the charged offense. Burglary b/c D was drunk, she could not and did not form the specific intent for that crime.

Assault if you assault someone when drunk, would not have a defense. Assault if a general intent crime and even the drunk can form the intent to engage in the physical act of swinging your arms.

Mistake of Fact______________________________
One of the defenses raise to rebut a claim that a D intentionally committed a crime. Mistake of fact is a claim that the D did not have the necessary mens rea for the crime b/c the D made a mistake or was ignorant of a fact she had to know to be guilty of the charged offense. If successful = complete defense. Whether a D is ignorant of a fact or makes a mistake regarding it, the D may still have a mistake of fact defense if her ignorance or mistake precluded her from having the required mens rea for that offense. Despite her ignorance/mistake did the D know enough to be guilty of the crime? If yes mistake of fact is not a defense, if no mistake of fact is a defense. Mistake of age in prostitution doesnt matter because still wrong to engage in prostitution IF THE CRIME IS LABELED A SPECIFIC INTENT CRIME IT IS MUCH MORE LIKELY THAT THE D WILL BE ENTITLED TO A MISTAKE OF FACT DEFENSE THAN IF THE CRIME HAS BEEN LABELED A GENERAL INTENT OFFENSE If D is charged with knowingly receiving stolen goods, if the definition of the crime requires that the D know that she has received STOLEN goods, the D is not guilty if she makes a mistake and does not realize that the goods she has received are in fact stolen. Not guilty b/c her mistake has prevented her from having the necessary mens rea for the offense. Specific Intent honest mistake that negates the specific intent required for commission of the offense will be a complete defense (only needs to be honest and made in good faith) DOESNT HAVE TO BE REASONABLE General Intent mistake of fact that negates an element of the crime must be BOTH honest and REASONABLE

Model Penal Code 2.04

The MPC asks that basic question of whether the mistake has caused the D not to have the required mens rea for the offense. If so = defense, if the D has the required mens rea regardless of the mistake =no defense.

What Mistake Matter? - A mistake of fact only matter if it shows that the D didnt know something she needed to know to be guilty of the crime D is charged w/ possession of a controlled substance, but claims that the mistake was she thought she was carrying heroin not cocaine. D still guilty of possessing a CONTROLLED SUBSTANCE b/c the statute does not require that the D know exactly what type of controlled substance she possesses as long as D knows it is some type of controlled substance, she has met the requirement of the statute.

Mistake of Law______________________________

General rule mistake of law is not a defense Ordinarily it is not a defense for a D to claim he didnt know what the law required or that he checked the law but misread or misunderstood its requirements

1. When Mistake of Law is just like Mistake of Fact When the elements of the crime require that the D know what the law requires but the D lacks the mens rea for this element b/c of his ignorance or mistake of the law. Can be a defense is cases where the statute specifically requires that the D knowingly use food stamps in an unauthorized manner. Most statutes do not have a requirement that the D know that he is engaging in behavior unauthorized by the law LOOK FOR WHERE A STATUTE DOES NOT THIS AN ELEMENT OF THE CRIME THOUGH MODEL PENAL CODE Ignorance or mistake as to a matter of fact or law is a defense if the ignorance or mistake negatives the purpose, knowledge, belief, recklessness, or negligence required to establish a material element of the offense. I i. If the law requires that the D know that he is acting contrary to the law, and he doesnt know that fact, he does not have the mens rea for the crime 2. When the D is misled by official authority D can be misled by: i. Reliance on a judicial decision Must have been issued by controlling jurisdiction ii. Reliance on an invalid statute iii. Reliance on an administrative order iv. Rate Situations reliance on an official interpretation of the law Can only be made is he is receiving the interpretation from the highest official charged with interpreting that law Cop doesnt count States Attorney General does count If the D is misled by the law as expressed NOT AS INTERPRETED, he has a mistake of law defense. i. When D relies on a recently posted law that states the sale of tobacco to a person over the age of 16 is permitted law was incorrectly posted, should have said 18. D would have a mistake of law defense b/c he relied upon the official statement of the law at the time it was posted ONCE THE OFFICIAL STATEMENT OF THE LAW IS CORRECTED, THE D WOULD NO LONGE RHAVE A MISTAKE OF LAW DEFENSE. 3. When there has been no reasonable notice of the law (Lambert) Due process requires that the D have sufficient notice as to what acts constitute a violation of the law. COURTS HAVE INTERPRETED THIS EXCEPTION AS NARROWLY AS POSSIBLE MPC If a law-abiding and prudent person would not have learned of the laws existence, the D may argue ignorance of the law General Rule though if that a person is presumed to know what the law requires Usually able to defends on mistake of law with a regulatory crime

Disagreement w/ the law is no defense, if a D disagrees with the law is it often the best evidence that the D knew what his legal duty was and intentionally ignored that duty

Causation__________________________________
Causation is not an issue in every criminal case. Usually only arises in crimes that require a specific result not crimes that just require specific conduct Homicide v. speeding DEFENDANT CHARGED W/ CONSPIRING TO DISTRIBUTE DRUGS NEED NOT HAVE ACTUALLY CAUSED DRUGS TO BE DISTRIBUTED Causation is the basis that links the actor to the social harm. To determine when a D has caused a criminal result, CL and MPC use a similar approach o Is there actual cause (but-for cause)? Was the defendant a link in the chain of causation? o Is there Proximate Cause (legal cause)? Were the Ds actions a sufficiently direct cause of the harm to warrant imposing criminal liability? Still is ultimately a jury decision. The crimes of conspiracy and attempt DO NOT REQUIRE A HARMFUL RESULT

1. Actual Cause But for Ds conduct, would the harmful result have occurred when it did? If no there is actual cause. Essentially, just figuring out if the Ds acts were a link in the chain of causation not whether the Ds acts were sufficient enough for criminal culpability. The But-For test does not require that the D be the sole or exclusive factor in the victims death nor must the Ds actions be the first link in the chain of causation. When there are multiple causes for harm, the causes are concurrent causes. A D who accelerates a death that would have occurred anyway may also be an actual cause of the death. Acceleration Theory. If two people inflict a mortal blow on the victim at exactly the same time, the but-for test is relaxed and the law tends to view both Ds has having met the first part of the causation standard. Even w/ causation being proven there still must be concurrence between the actus reus and the mens rea If murder is defined as intentionally causing the death of another person and when you shoot someone intending to kill them but instead merely wound them, this is only attempted murder b/c the result element in the offense of murder differs from the actual result 2. Proximate Cause Common Law = Proximate Cause MPC = Legal Cause Proximate cause is a jury question to determine whether or not the D should be criminally responsible. First courts consider whether the harm was foreseeable. Second, they determine whether intervening acts should break that chain of causation and relieve the D of criminal responsibility.

 Direct Cause Intervening Causes Factors that the jury may consider: o What was the nature of the intervening cause? (Act of nature or deliberate harmful act by another perpetrator?) o Was the intervening cause foreseeable? o Who had control over the intervening cause? o How must harm did the intervening cause contribute? Ds robbed a man and leaves him in his underwear on the side of a country road in a blizzard. Victim freezes to death. o It is foreseeable that the victim must succumb to the elements. o Could have been fairly easy for the Ds to have controlled the impact of nature allowing the victim to freeze to death. Ds robbed a man and left him in his underwear on the side of a rad where he is swallowed up by an earthquake. o Freak act of nature, less likely Ds will be found to be the proximate cause. o No one has control over an earthquake. Superseding Cause some event has happened that relieves the D of responsibility for the victims death, the chain of causation has been broken. Acts by Victims Ordinarily, acts by the victim do not break the chain of causation It is foreseeable that victims will do desperate things to escape from a difficult situation, even if it means harming themselves. o Victim who sleeps outside of parents house while escaping and freezes to death Eggshell Victim Generally D takes his victim as he finds him. Medical Maltreatment Unless intentional or grossly incompetent, bad medical treatment does not break the chain of causation. Acts of Other Perpetrators 1. Multiple Perpetrators o Multiple actors intending to cause harm o A stabs X, but before X bleeds to death, B shoots X. o Some courts hold them both as causes of victims death if either shot alone would have been enough others might charge B as the cause of Xs death if it accelerate it and A of convicted attempted murder. o If A & B are intentionally working together they are responsible for each others actions and are therefore both the proximate cause of Xs death. 2. Complementary Actors o Neither A nor B intend to kill the victim, but their joint activity nonetheless leads to death.

While we ordinarily do not blame victims for the harm that befalls them, some courts will relieve a D of responsibility if the victim is another actor in the criminal scheme o Other courts hold that Ds mutual encouragement in the joint criminal enterprise was sufficient to prove proximate cause. o Ordinarily when the reckless or negligent conduct of complementary actors leads to the death of an innocent person, all surviving participants are held responsible. It is foreseeable that their careless activity will lead to serious injury or death and there is no good policy reason to hold that the contributory actions of fellow participants should break the chain of causation. 3. Blameless Intervening Causes o D puts in motion a series of acts that causes the victims death, but other actors inadvertently contribute to the result. i. A person wants to poison her enemy but the actual poison is administered by an individual who does not realize the vial contains poison? D is the proximate cause notwithstanding the actions of others who unwittingly lead to the victims harm.

Model Penal Code 2.03

To be guilty of an offense, the Ds conduct must be the cause-in-fact of the prohibited result. Cause An antecedent, but for which, the result in question would not have occurred. MPC focuses on determining whether the D was the legal cause of the harm. Under the MPC, every question of legal cause consists of two questions: o Did the actor have the requisite mode of culpability regarding the actual result? o If not can she still fairly be said to have caused the actual result? For transferred intent the MPC provides that an actual result will be treated as having been caused by my act even w/o the requisite mode of culpability if it differs from the intended result only in the respect that a different person or different property is injured or affected Only if a Ds actions are not too remote or accidental in occurrence to have a just bearing on the actors liability or the gravity of his offense is the D the cause of the harm. o D accidentally hit a bicyclist w/ car when she accidentally ran a stop sign. Bicyclist was only stunned and would have been fine had she not been intentionally run over by another car that killed her. If charged w/ Murder the first motorists would not be convicted under the MPC as it fails the MPCs causation test. The manner in which the killing occurred INTENTIONALLY BY ANOTHER CAR makes the result too remote/accidental to hold the first motorist culpable. Second motorist is the cause. If charged w/ recklessly or negligently causing a particular result MPC holds that causation is not established unless the actual result is within the risk of which the actor was aware of in the case of negligence, should have been aware.

MPC sets out a separate legal cause analysis for recklessness and negligence result offenses: o The result within the purpose of the contemplation of the actor become the result within the risk of which the actor is aware or of which he should be aware For strict liability offenses When causing a particular result is a material element of an offense for which absolute liability is imposed by law, the element is not established unless the actual result if a probable consequence of the actors conduct o Remember that the MPC rejects a strict liability felony murder rule

Different Injury than Intended - Under both the CL and the MPC, if you cause a different injury than intended (I intended to kill but only caused serious bodily injury) you would still be liable for assault MPC 2.03(2)(a) Discrepancy between actual and intended injury is irrelevant if the injury or harm designed to contemplated would have been more serious or more extensive than that caused

**Remember that attempt only applies to intentional result offenses (result offenses that require intent as the mode of culpability attaching to the result element). The match between attempt and causation is only perfect in the case of intentional result offenses. In offenses that require a lesser mode of culpability with respect to the result (knowledge, recklessness, or negligence), the absence of causation does not go to attempt, it means an acquittal of the consummated offense**

Transferred Intent
The issue of whether the D is responsible if she harms someone other than her initial target is actually a causation issue b/c the focus is still on whether the D is responsible for the harm she causes or only the harm she intends. Under both CL and the MPC, if A shoots at X, but accidentally hits Y, A is still the cause of Ys death. o A shoots at a person she believes to be her neighbor but instead she accidentally shoots the President, a penalty which is greater than shooting her neighbor. Common Law = A would be responsible for the harm she caused and punished for killing the President. MPC = A D may only be responsible for the harm she intended. MPC = If a D causes less harm than she intended, she is only responsible for harm that resulted.

Murder____________________________________
The unlawful killing of another human being w/ malice aforethought. Malice generally focuses on the intent of the D. In most jurisdictions, Malice can be demonstrated by: 1. Intent to Kill 2. Intent to cause serious (grave) bodily harm 3. Callous or wanton disregard for human life (gross recklessness) 4. Killing during the commission of a felony (felony murder)

1. Intent to Kill o Express Malice o Use the evidence regarding the killing to determine whether the D purposely killed her victim. 2. Intent to Cause Serious Bodily Harm o Second way to prove malice is to prove that the D acted w/ intent to cause serious bodily harm to the victim. o Use of a deadly weapon can allow the jury to infer that D intended serious bodily injury o D intended to injure the victim in a manner that could easily lead to the victims death. D shoots an arrow at the victims shoulder, doesnt intend to kill, only to incapacitate her. D is not a great shot and the arrow goes into the victims heart. 1. Under CL D has acted w/ malice even though he did not intend to kill the victim, it is sufficient if he intended to cause serious bodily harm. 2. Extreme Recklessness/Abandoned and Malignant Heart o CL phrases like depraved heart and abandoned and malignant heart were used to describe a category of malice. o It is a state of mind of a D who demonstrates extreme indifference to the value of human life. o Implied Malice o Under the MPC = Gross Recklessness o Intentional killings that are not premeditated and deliberate o Prosecution needs to show: D realized that her conduct posed a risk to human life Ds recklessness was particular extreme/gross o D who drives his car down a crowded sidewalk.

First Degree Murder

Ds convicted of first-degree murder received the death penalty. Many jurisdictions use a model to classify what constitutes first-degree murder: 1. Specific types of intentional killings/intentional killings of certain types of victims Poison/Lying in Wait Police Officers 2. Willful/Deliberate & Premeditated Killings 3. Certain Types of Felony Murders Burglary Arson Rape Kidnapping Robbery Mayhem

2. Premeditated Murder Some courts classify any willful murder has premeditated as long as the D had a cool moment of though, even for a second, and then purposely killed the V. 1. Barest purposeful conduct will satisfy. Other courts require evidence of more deliberate though and planning by the D. More evidence of the Ds cool deliberation before the killing must be shown.

1. Planning Activity 2. Motive 3. Manner of Killing Mercy killings are not a defense to a premeditated murder.

Second Degree Murder

Often called a catch-all category for any killing that is committed w/ malice that does not otherwise qualify for first-degree murder. All intentional killings w/o premeditation All killings committed w/ intent to cause serious bodily harm All Killings committed by Gross Recklessness

Model Penal Code Murder

Criminal Homicide constitutes murder when the D kills purposely, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life. No degrees of murder. All murders are considered first-degree felonies that carry a possible sentence of one year to life imprisonment or death. Questions of malice or the means of perpetration might be considered at the sentencing phase. If the D has as her goal to kill, or knows that a death will be the consequence of her acts, or acts w/ extreme recklessness, she is guilty of murder.

Manslaughter______________________________
CL manslaughter is the unlawful killing of another human being w/o malice. 1. Killings in the Heat of Passion or under Extreme Emotional Disturbance (voluntary) 2. Reckless Killings (involuntary)

Voluntary Manslaughter
Traditionally, only applied when a D was provoked. Today, jurisdictions apply it to killings of: 1. Provocation (heat of passion) Requirements: Actual Heat of Passion o D must have actually been in the heat of passion at the time of the killing Legally Adequate Provocation o Determining whether the D has been subject to legally adequate provocation: 1. Categorical Approach A. Aggravated Assaults B. Observations of Adultery by a Spouse C. Illegal Arrest D. Mutual Combat

E. Attacks against a close family member 2. Reasonable Person Approach A. Some courts take an objective approach and allow jury to consider Ds age and gender in deciding whether a reasonable person with those characteristics would have been provoked. B. Minority of courts go further and allow taking into consideration the Ds emotional background (taken from MPC) Very Pro Defense. 3. MPCs Extreme Emotional Disturbance Approach Insufficient Cooling Time o Traditionally A D was only entitled to argue provocation if he killed immediately after being provoked. D comes home and sees his wife in bed w/ another man, D went out bought a gun and returned to kill the man cheating with his wife. Under Traditional CL, D could not argue provocation as he had sufficient time to cool off. o Modern Approach courts have recognized two doctrines that relaxed the traditional cooling off period: Long-Smoldering Reaction if the D can show that his emotions continued to smolder even after the act occurred. Re-Kindling Doctrine Ds can argue that even though they may have cooled off after the initial provocative act, their heat of passion was rekindled by some kind of reminder of the victims provocation. 2. Extreme Emotional Disturbance 3. Imperfect Self Defense *HG is a bouncer in a bar. He reasonably mistakes HL as a disorderly person and physically ejects him. HL, becomes enraged, rushes back into the bar and kills HG - The ejection was not necessary. While HLs actions were for no good reason either, they are the kind of lawful force that the laws will recognize as provocative. He will be treated as any other person who has been subjected to a violent assault and a charge of voluntary manslaughter would seem more appropriate than a charge of murder.

Involuntary Manslaughter and Criminal Negligence

Homicides caused by mere recklessness or criminal negligence may be treated as manslaughter and in jurisdictions that classify voluntary/involuntary, these are considered involuntary. ORDINARILY THE LOWEST MENS REA ASSOCIATED W/ CRIMES IS RECKLESSNESS This category is often reserved for the clueless D. Factors the courts consider in deciding whether D committed involuntary manslaughter: 1. Nature of the risk resulting from Ds conduct and there must be a significant risk of death

2. Level of risk resulting from Ds conduct 3. Balance the nature and level of the risk against the social utilities of Ds conduct Many jurisdictions define involuntary manslaughter in such a way as to impose a subject (focus on the Ds perspective) element. This subjective element focuses on whether T was conscious of the risk of death. It is a killing w/o due caution and circumspection to such a degree that the Ds behavior warrants criminal punishment. 1. Parents who leave their children in a hot car causing the child to die 2. Parents not adequately feeding their children 3. Parents failing to get medical care for an ill child 4. People leaving a loaded gun out where children can reach it 5. Restaurants serving tainted foods. If the D actually realizes the risk of his behavior and still acts in a manner that poses a substantial and unjustifiable risk to human life, the D may be guilty of murder gross recklessness can justify a finding of recklessness for murder. If the D does not realize the risk, but a reasonable person in the Ds situation would have realized the risk, the D has acted negligently and it is up to the jury to decide whether it is so gross as to be deserving of punishment.

Model Penal Code Reckless/Negligent Homicide

A person who kills another recklessly is guilty of manslaughter, unless the D demonstrates extreme indifference to human life. Negligent homicide requires proof that the D acted negligently in killing his victim Manslaughter requires proof that D acted recklessly in killing his victim Recklessness is judged by the standard of a law abiding person as opposed to the reasonable person standard used for negligence Negligent Killings are NOT classified as manslaughter separate category of negligent homicide. KILLINGS THAT MAY BE MANSLAUGHTER UNDER COMMON LAW MIGHT BE LABELED AS NEGLIGENT HOMICIDE UNDER THE MPC Key Question to Ask: Whether the D consciously disregarded the risk to human life or should have known of the risk? If Former D is guilty of at least manslaughter if not murder. If Later D is guilty of negligent homicide.

Model Penal Code - EMED

Extreme Mental or Emotional Disturbance The MPC does not distinguish between voluntary and involuntary manslaughter. It recognizes two types of killings as manslaughter: 1. Recklessly Killing another person 2. Killing another person under circumstances that would ordinarily constitute murder but which homicide is committed as the result of extreme mental or emotional disturbance.

The extreme emotional disturbance must have a reasonable explanation or excuse which is determined from the viewpoint of a person in the actors situation under the circumstances as he believes them to be. The standard modifies the CL doctrine of heat of passion in several ways: 1. Does not require that there be a specific act or provocation it is enough if the D suffered from a condition that caused the D to react in an emotional manner. 2. No reason to be concerned about whether there was too much cooling time before the killing. The D MUST be suffering from the disturbance at the time of the killing. 3. No artificial restrictions on evaluating whether an act of provocation was legally sufficient. Even words may be enough to trigger the Ds extreme emotional disturbance.

Felony Murder______________________________
D is guilty of murder b/c the intent to commit the felony substitutes for the intent to kill or cause grievous bodily harm. - At common law, one way to establish malice aforethought was to show that D caused the death of another during commission of a felony - In early common law the doctrine applied to all felonies now it only applies to dangerous felonies - The D need not have any particular mens rea related to the death The crime of felony murder does not require that the D possess homicidal intent, or that D have acted recklessly or negligent w/ regard to the element of death HOWEVER the D does need to possess the mens rea for the underlying felony - A felony murder conviction is appropriate notwithstanding the absence of a high risk of death if the death occurred during commission of a dangerous felony - A felony murder conviction can be sustained whether or not the death is accidental - A felon is strictly liable for all killings committed personally or by an accomplice in the course of the felony. Bank robber intends to rob a bank w/o killing anyone so uses a toy guy, however, one of the banks customers has a heart attack and dies. Under Felony Murder Doctrine, D is still guilty of murder even though it wasnt intended. - Common Law, felony murder committed under any of the following felonies was first-degree murder: Burglary Rape Kidnapping Robbery Arson Mayhem - Everything thing else would be a second-degree murder charge.

Inherently Dangerous Felonies

These limitations still apply for felonies that are not specifically listed in qualifying statutes for felony murder in the applicable jurisdiction. Concerned about the harshness of the doctrine, many jurisdictions requires that the underlying felony be on that is already inherently dangerous to human life.

Merger Doctrine
This doctrine blocks some of the most serious felonies from application of the felony murder doctrine. In many jurisdictions, because of the harshness of the FMD, the assault of a crime would merge with the FM charge and the D would only be convicted of the assault If the felony is not independent, then the felony merges with the homicide and cant serve as the basis for a felon-murder conviction If the underlying felony is an integral part of the homicide itself, the felony murder doctrine is not applied. D is charged w/ assault w/ intent to kill and felony murder. Break into house w/ intent to assault V; once D breaks in, its burglary. If D assaults and kills victim during burglary, no FMR applies. If D breaks in w/ intent to steal and ends up killing the victim, FMR applies the operative felony then is burglary w. intent to steal money, not the assault.

During the Commission of the Felony

The charged death must have occurred during the commission of the felony. Must satisfy two conditions: 1. It was sufficiently temporally and geographically related to the commission of the felony Bank robbers robbed a bank, successfully fled, and, after getting home and counting their loot, drove to a local bar to celebrate. While driving they accidentally kill a pedestrian Felony Murder doctrine would prolly not apply likely just face charges of manslaughter. If the pedestrian was hit while the bank robbers were speeding away from the bank the felony murder rule would apply. Ordinarily, a felony begins w/ the preparations for the crime and does not end until the Ds are in custody or have reached a position of temporary safety. If one of the bank robbers in cleaning her weapon to ready it to rob the bank, accidentally causes it to discharge and the bullet hits a passerby, the robbers would be guilty of felony murder. 2. The felonious conduct was the cause of the death. (Res Gestae Rule)

Felony Murder Causation Issues

In the felony murder situation, the issue is whether the felonious conduct was sufficiently related to the death that occurred to hold the felons responsible. Determining whether the felony was the cause of the death, courts look to several issues: 1. Who did the killing? 2. Who was killed?

3. Are there any other facts that indicate the killing was not in furtherance of the underlying felony? 1. Who did the killing? If 3 robbers enter a jewelry store and one felon shoots the store owner, the felony murder rule would hold all co-felons responsible for the victims murder. If 3 robbers enter a jewelry store and the owner, meaning to shoot a co-felon out of selfdefense, accidentally kills another customer in the store: courts will adopt one of two theories to determine who is responsible, the felon or the store owner. Agency Theory Applied by a majority of jurisdictions. A felon is only responsible for the death of a victim if that death was caused directly by one of the felons. If a third party causes the death, the felons are not responsible. o If the felon uses the store owner as a human shield and the police accidentally shoot the store owner during a gun battle, the felons are not guilty of felony murder because the death did not occur at the hand of one of the felons. Proximate Cause Theory A felon is responsible for any death that occurs during the felony regardless of whether the felon directly caused the death so long as the death was sufficiently related to the felons conduct. Even if the felons bullet did not kill the victim, the felon is still responsible for felony murder b/c the felons conduct precipitated the death. When a felons attempts to commit a forcible felony set in motion a chain of events which were or should have been within his contemplation when the motion was initiated, he should be held responsible for any death which by direct and almost inevitable consequence results from the initial criminal act. 2. Who was killed? Some courts do not apply the felony murder doctrine when the victim is a co-felon and not an innocent person. 3. Did it further the felony? Courts may relieve co-felons of responsibility for unanticipated actions by a fellow felon that are not in furtherance of the common purpose of their felony. While the felons are robbing the bank, one of the felons decides to rape one of the customers and then kills her the felons could argue that they are not responsible b/c the death occurred during a separate felony. If one of the felons actions are so unpredictable and outside the common purpose of the felony, the co-felons should not be held responsible.

Model Penal Code 210.2

Provides that if a death occurs during the commission of certain listed felonies, there is a presumption that the D acted w/ recklessness and extreme indifference to human life. Engaging in or being an accomplice in the commission of, an attempt to commit, or flight after committing or attempting to commit:

1. Robbery 2. Rape 3. Deviate Sexual Intercourse by threat/force 4. Arson 5. Burglary 6. Kidnapping 7. Felonious Escape Under the MPC a death that occurs during a felony meets the standards for murder but can be argued. Under Common Law once a death occurs during a felony, it is automatically murder. THE MODEL PENAL CODE REJECTS THE FELONY MURDER DOCTRINE, instead, the murder statute considers whether the D was engaged in certain listed felonies The MPC only permits a murder conviction when a homicide is committed purposely or knowingly, or is committed recklessly under circumstances manifesting extreme indifference to the value of human life when a D is engaged in one of the above felonies at the time he causes a death recklessness and extreme indifference to the value of human life are presumed. The presumption is only for certain felonies!

Attempt_______________________________
Attempt is a separate crime but if a D is successful in his attempt, the crime of attempt merges with the completed crime and the D is only guilty of the completed crime. - Attempt may be charged as a felony. - Most jurisdictions punish attempt less severely than the completed crimes. - MPC Approach = punish attempts the same as the completed crimes, except for crimes punishable by death or life imprisonment.

Mens Rea Requirement

Majority rule is that attempt is a SPECIFIC INTENT crime that requires the highest level of mens rea: purposely. In order to attempt a result crime must intend the result Some jurisdictions treat an attempt as deserving slightly less punishment than the completed crime Can attempt a conduct crime w/o intending a result CL has lower sentences for attempts focus on what harm was actually done Even if a lower mens rea would suffice for prosecuting the completed crime, an attempt of that crime requires a strong showing that the D actually intended to complete the offense. Attempted Murder: Crime of murder only requires that the D act with gross recklessness. The crime of attempted murder requires that the D have the purpose to kill him victim. D shot his gun at victims in another car. D claimed he was only trying to scare the victims, not kill them. If believed, the D would not be guilty of attempted murder b/c he did not act with the purpose to kill. Even though he would have been guilty of murder if he had actually hit one of his victims. Courts can use a Ds knowledge of the likely consequences of his acts to help prove intent.

D who throws a grenade into a crowded room, D claimed his purpose was just to disperse the crowd; it would not be difficult though for the prosecution to argue that Ds true plan was to think the crowd by killing many of those inside the room. Some jurisdictions uphold attempt convictions if the D does not act w/ purpose but has the mens rea required for the completed offense.

**Remember, the majority approach requires that the D have the PURPOSE for the victim to drown. Merely knowing that she could drown, or acting negligently, would be insufficient** Special Issues regarding Mens Rea for Attempt - Strict Liability Crimes? Attempted Felony Murder: A majority of states do not recognize attempted felony murder. - Must a D act purposely w/ regard to all of the attendant circumstances of a crime? Attempted Statutory Rape Some courts attempt requires that the D act purposely w/ regard to all the attendant circumstances of the crime, even those that may be covered by the strict liability standard for the completed crime. Some courts do not require that the D act w/ purpose as to those attendant circumstances of a crime that the D would not need to know to be guilty of the completed crime D could be guilty of attempted statutory rape regardless of whether it was the Ds specific intent to have sex w/ a girl he knew to be underage. MPC Requires that the mens rea for the attendant circumstances is the same as for the completed crime.

Actus Reus Requirement for Attempt

Different courts have promoted different standards to determine when the D has crossed the line from mere preparation to actual attempt: First Step Rarely Employed Once it is clear that the D has the purpose to commit a crime, anything the D does that could lead to the completion of a crime would be a sufficient actus reus. Last Step (Last Act Test About to pull the trigger) Early Common Law D was not guilty unless he had done all he could to commit a crime and it was only b/c of bad luck that he was unable to do so. D wants to kill another person. D pulls the trigger on the gun but the gun jams and the bullet misses the victim D has taken the last step. Physical Proximity Approach Proximity requires a first or some subsequent step in a direct movement towards the commission of the offense after the preparations have been made and close proximity to the victim If D is planning on killing a victim, the D would need to be physically near enough to the victim to put the victim at risk Dangerous Proximity Approach

5.

6.

7.

8.

Traditional Test. Focuses both on how much the D has done to complete the crime and how much is left to be completed. In determining whether the Ds actions fall w/in dangerous proximity, courts traditionally focus on 6 facts: 1. How many steps the D has taken 2. How much more action is required for the D to complete the harmful act 3. Why the harm never occurred 4. The amount of harm likely to result 5. The seriousness of the prospective harm 6. The appropriateness of law enforcement interference w/ the Ds acts. Holmes Requirements: 1. Nearness of the danger 2. Greatness of the harm 3. Degree of apprehension felt D constructed and arranged combustibles in the building so that they were ready to be lighted. The closest the D got to actually lighting the materials was driving a prospective accomplice to within a quarter mile of the building D did not pass the level of mere preparation and could not be convicted of attempted arson. Unequivocality Test D is not guilty of attempt unless his actions unambiguously demonstrate the Ds intent to commit a crime. Broadest Test When does the act go beyond equivocal action and show that D was unequivocally goes to commit the crime? Conduct is the manifestation of the crime D buys a box of matches, intending to burn a haystack, he still may not be guilty of attempt b/c there are many lawful explanations for buying matches. Indispensable Element Test D must have acquired the indispensable instrument to commit crime D must have a gun if he wants to shoot a person Probable Non-Desistance Test An attempt will be found when, in the ordinary course of events, w/o interruption from an external source, the actor reaches a point where he would have voluntarily desisted from his efforts to commit the crime. Substantial Test - Strong Corroborative of Intent (MPC)

Model Penal Code Actus Reus 5.05

Generally broader as to what would constitute an attempt Uses Substantial Factor Test 1. Focuses on what has been done rather than what needs to be done to complete the crime 2. Very broad as to what encompasses a substantial step D must take a substantial step strongly corroborative of the actors criminal purpose.

Certain acts are per se attempts at fulfilling the actus reus requirement: Lying in wait Possessing materials specifically designed to commit the crime. Focuses both on what the D has done toward completing the crime and whether those steps clearly corroborate the Ds intent. Sentencing: MPC uses subjective approach so even if crime wasnt committed, D is still at same guilty level

Model Penal Code Mens Rea 5.05

A D who acts with the purpose of causing or w/ the belief that his conduct will cause the prohibited result satisfied the mens rea for attempt. Broader in the sense that it only requires a belief that action may cause harm and not necessarily intent to cause harm A purposeful actor who has his or her conscious object to cause a death, supposing they satisfy the actus reus component of attempt, will be convicted of attempt notwithstanding the fact that punishment for the completed crime may be imposed at a lower threshold of mens rea. Under the MPC the attempt is punished as harshly as the object crime More flexible than the CL standard and allows the prosecution to prove the mens rea for attempt in those situations in which the D may not with to cause a particular result but certainly believes that he will. Allows the mens rea attempt to dip down to = knowingly. D put a bomb on airplane w/ purpose of destroying documents, and the D undoubtedly believed that he would also kill anyone onboard that plane. If it fails to explode, under the MPC the D would still be guilty of attempt. Under CL, prosecutors would have to argue why the Ds purpose was to both destroy the documents and kill those aboard.

**Under the Model Penal Code actus reus requires (1) a substantial step strongly corroborative of intent AND (2) certain actions, such as lying in wait**

Attempt Defenses Common Law

Abandonment/Renunciation - Only available to those Ds who have a sincere change of heart, not those who are just waiting for a better time or more vulnerable victim to harm. - Common Law Abandonment Some courts will recognize an abandonment defense if the D voluntarily and completely stops his criminal efforts. D grabs a woman but decides not to rape her b/c she starts to scream, this D would not have an abandonment defense b/c he has not truly renounced his criminal purpose, he is just looking for a better opportunity. - Model Penal Code Renunciation Affirmative defense if:

1. D abandons his effort to commit the crime or prevents it from being committed; and 2. The Ds conduct manifests a complete and voluntary renunciation of his criminal purpose If the D abandoned his efforts b/c he was afraid of getting caught or was looking for more advantageous circumstances under which to commit the crime, he would not be entitled to a renunciation defense. If 1 actors abandons, but accomplice doesnt abandon accomplice could still be guilty of attempt

There is little difference between the common law and the MPC in this category.

Impossibility - Defense of impossibility arises when a D has done everything possible to commit a crime, but unexpected factual/legal circumstances prevent the target crime from being completed. - Many impossibility situations that could be labeled as factual impossibility could also be interpreted as legal impossibility cases. - Depending on how it is classified, the D may or may not have a defense. - Factual Impossibility NOT A DEFENSE TO CRIMINAL ATTEMPT Pickpocket trying to pick an empty pocket Pulling the trigger on a weapon that misfires Trying to infect another person w/ a disease even though it turns out the D is not infected Shooting at a victim who was already dead. The D has still engaged in activity that is deserving of punishment he has the mens rea for the crime and has taken the last step toward doing so. - Legal Impossibility COMMON LAW, THIS WAS A FULL DEFENSE TO ATTEMPT Pure Legal Impossibility occurs when a D wants to violate the law, but there is no law prohibiting the Ds behavior. D does not act w/ a guilty conscience. Smoking marijuana believing it is illegal to do so, but when there is no law prohibiting marijuana in that jurisdiction Taking a lawful tax deduction believing it is an unlawful deduction Having sex with someone the D believes is a minor, but is in fact of legal age to consent. - Hybrid Impossibility D intends to commit a crime, but some legal characteristic of the attendant circumstances of his conduct make it impossible for him to commit that crime. Can be used as a defense Can be either one of the above Shooting a corpse the D mistakenly believes to be alive Trying to hunt deer out of season when it is in fact still hunting season Offering a bribe to a person who turns out not to be a juror.

Model Penal Code Defenses of Attempt

No defense of impossibility

A D is guilty of attempt if he purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believed them to be. Hybrid Legal impossibility is a defense available under 5.05 (2) If the D has the necessary mens rea and actus reus for a crime, just ask: Would there have been a crime had the circumstances been as the D believed them to be? o Yes D is guilty of attempt. Under the receiving stolen property hypo if the D intended to receive stolen property and took the necessary action to obtain it, he would be guilty of attempted receipt of stolen property, even if the property turned out not to be stolen. Escape Hatch: Situations in which it is so unlikely that the D would have caused harm that it makes no sense to convict him of an attempted crime Pure legal impossibility cases would probably still be dismissed under the MPC D goes fishing in an area where he believes it is illegal to fish. Rather than deciding if this is factual or legal impossibility, the MPC would use the following 3 step approach: 1. Did the D have the mens rea and actus reus for the crime of attempt? 2. If the facts were as D believed them to be, would the D have been guilty of a crime? 3. If there any reason to mitigate or dismiss the attempt charged? o In the fishing care, yes, the fact that its not illegal to fish in that area is an indication that D really possesses no threat of harm.

Attempt for strict liability may depend on if D acted w/ recklessness or negligence if the crime was never completed (statutory rape)

Solicitation______________________________
The crime of solicitation can apply whenever a D recruits, encourages, directs, counsels, or induces another person to commit a crime. - The offense of solicitation is complete even if no further steps are taken towards commission of the target offense. - JUST ASKING ANOTHER PERSON TO COMMIT A CRIME IS A CRIME IN ITSELF. - Actus Reus May be purely verbal Includes any command, request or encouragement to another to commit a crime Solicitation has to be effectively communicated At CL, if communication was never received, no solicitation (could be attempted solicitation) No furtherance necessary after D asks A to commit a crime - Mens Rea Specific Intent Crime D must have the purpose to promote or facilitate the commission of a crime. If D is just kidding, the D is not guilty of solicitation. D must intentionally ask A to commit the crime

Differences between Solicitation and Attempt 1. Attempt requires that some act be taken toward commission of the crime. Solicitation can occur much earlier when a plan to commit a crime is just beginning. 2. Solicitation is attempted conspiracy 3. Solicitation involves a third party who is recruited. Attempt may be done by the D alone. 4. Overt act doesnt have to lead directly to commission of a crime where in attempt it does 5. Attempt generally carries a heavier sentence than solicitation b/c the D as done more. MPC No matter what acts the solicitor commits, he cant be guilty of attempt b/c it is not his purpose to commit the offense personally. Solicitation ConspiracyAttemptCommitted Crime

Using another as an instrumentality of crime

By using an innocent instrumentality to commit her crime, the D has not solicited a crime. The D is responsible for any crime committed by that person on the Ds behalf. D asks a friend who is traveling to the USA to take some clothes for him, unbeknownst to his friend; the clothes have drugs sewn in them. D is guilty of illegally importing the drugs. Not solicitation b/c the friend he asks has no idea that he is helping w/ the commission of a crime.

If a D solicits a person to kill her husband, and the hit man does the job, the D is guilty of murder as an accomplice. Solicitation will merge with the completed crime and the D will be punished only for the more serious offense. If a D asks another person to commit a crime and that person agrees but does not actually commit the crime, the D is guilty of solicitation and conspiracy. Solicitation is an invitation to join a conspiracy. When a D is guilty of soliciting a person to assist in a crime and that person agrees, the court will not punish the D for both solicitation and conspiracy, rather, solicitation and conspiracy merge for purposes of sentencing.

Model Penal Code

A person is guilty of solicitation to commit a crime if: 1. The actors purpose is to promote or facilitate the commission of a substantive offense 2. With such purpose, he commands, encourages or requests another person to engage in conduct that would constitute the crime, an attempt to commit it, or would establish the other persons complicity in its commission or attempted commission. Broader than CL because: 1. Applies to all crimes 2. Specifically recognizes a solicitation to commit an attempt 3. Does not require that the person solicited be the actual perpetrator of the crime

4. Makes an un-communicated solicitation a solicitation in itself, not just attempted solicitation. Graded at same level as target crime Renunciation allowed as a defense to the crime Solicitation can be charged for all crimes, not just serious crimes Recognizes solicitation to commit an attempted crime Doesnt matter if its not communicated and doesnt matter whether or not A received the communication

**If the crime being solicited is a misdemeanor that is an indication that only the MPC would apply. If the D actually asking the person to commit the crime or just help in finding someone (you want my help in finding someone to buy pot from) this is more of an indication that only the MPC would apply. Also, if the person does not actually receive the message, under common law this would only be attempted solicitation under MPC this would be solicitation**

Accomplice Liability__________________________
Accomplice liability is not a separate crime, it is a theory by which a D is guilty of a crime b/c he is responsible for another persons criminal behavior. - Can exist for attempt crimes as well Patty has agreed to help her boyfriend rob a bank and will act as the getaway driver, her boyfriend goes in and robs the bank. Patty is guilty of bank robbery b/c as an accomplice she is guilty of the substantive crime she helped her boyfriend commit, she is not guilty of being an accomplice. - All participants are guilty of the substantive crime they help commit, regardless of whether it was originally their idea to commit the crime or they played a primary role. - Common Law Categories: 1. Principal in the First Degree This was the actual perpetrator of the crime. 2. Principal in the Second Degree The person who aided and abetted the principal by being present, or nearby. The lookout or getaway driver. i. Constructive lookout ii. Actual is there throughout the crime 3. Accessory before the Fact The person who helped prepare for the crime. Cased the bank or purchased the disguises, but did not participate in the actual robbery. 4. Accessory After the Fact Person who, knowing that a felony had been committed, received, relieved, comforted, or assisted the felon. Helps culpable person avoid trial/arrest. Today, all of the participants, except for an accessory after the fact, are equally liable for the crime. In a robbery, the robber, getaway driver, and the person who planned the robbery would all be subject to the same punishment. Modern approach has several important rules regarding accomplice liability: 1. Principals need not be convicted The prosecution need only prove that a crime was actually committed and the accomplice participated before or during its commission. The accomplices liability does not depend on whether the principal is apprehended or convicted. 2. No need to charge specific form of complicity

 All Ds, other than accessories after the fact, may be charged directly w/ the substantive crime committed. **Under the Common Law, prosecutors would have to designate the defendants into their categories and a principal in the second degree would only be guilty if the principal in the first degree was guilty. Under modern law, the rules are more flexible and a D can be guilty regardless of whether or not the principal in the first degree is apprehended and convicted** Accessory after the Fact - Under both CL and modern statutes, accessories after the fact are treated as less culpable than principals or accessories before the fact. - If the D did not know about the crime until after it was committed, she is technically only an accessory after the fact. Using Another Person as an Instrument to Commit a Crime - If a person unknowingly or unwittingly participates in a crime, that person is not an accomplice but is considered a mere instrument by which the actual perpetrator committed the offense. A asks B to deliver a sealed envelope to a bank teller, inside is a note demanding the banks money; B is innocent agent and not an accomplice to the crime.

Mens Rea Accomplice Liability

The D acted w/ the purpose to have the crime succeed. To be an aider and abettor, it is not enough that one does something that assists w/ a crime. The prosecution must prove that the D spoke/acted w/ the purpose to encourage or assist another in the commission of a crime. Focus must be on the Ds purpose when uttering the words, not the effect of the Ds conduct on the principal Primary method of establishing a purpose to aid and abet is that the accomplice had a stake in the venture. Mattress salesman has a well-known prostitute enter his store. The salesman may have his suspicions about how the best is to be used, but his primary interest is in selling a mattress. The salesman has no nexus to the prostitutes business as his purpose in making the sale is not to promote prostitution but to sell the bed. Both the CL and MPC set the mens rea requirement at purpose in order to ensure the maximum autonomy for individuals. Reckless or Negligent Crimes: By definition it is impossible to intend a negligent result. Accomplice liability for negligent crimes requires that the D: 1. Had the purpose to assist the principal 2. Was negligent regarding the results Drag Racing: Competitor careened out of control and killed passengers in an oncoming car D was held to be guilty of criminally negligent homicide b/c he purposely encouraged and participated in the activity that negligently resulted in the deaths. -

MPC A D need only act w/ the kind of culpability that is sufficient for commission of the offense, if an offense only requires a negligent state of mind, proof of negligence is sufficient to convict the accomplice. Strict Liability Crimes To be guilty of a strict liability crime, the principal need not have any mens rea as to attendant circumstances BUT the accomplice must have at least known that his actions are helping in a criminal endeavor. 1. If a person helped the D arrange his date w/ a minor, that person could only be charged w/ being an accomplice to statutory rape if he KNEW that the girl was underage.

**Suspicion is not enough to satisfy the mens rea requirement for most accomplice situations. The mens rea requirement is set at purposeful so that innocent persons who may tangentially assist criminals are not caught up in the system someones actions, w/o the necessary mens rea do not make him an accomplice**

Actus Reus Accomplice Liability

Aiding, Abetting, Counseling or Encouraging At CL, liability derived from liability of the principal have to be charged w/ same crime that principal is Mere presence alone isnt sufficient for complicity trivial amount of assistance is sufficient To be an accomplice, the D must provide an act of assistance. Can be either a positive act or omission. A police officer, who stands idly by and does not intervene w/ the robbery, even though he has a duty to do so, may be an accomplice by omission if he has the purpose of allowing the robbery to occur. Tally did not provide aid, assistance or encouragement to the murderers. Tally made his statements after the Skelton Brothers had set off to kill Ross, and there was no indication that they learned about the comments (or would learn about the comments) until after the crime had been committed. As a result, despite his expression of sympathy, Tally did not provide aid, assistance or encouragement to the murderers. If the two had worked together on robberies in the past, a court might infer that Patricia accompanied Lane on this robbery to provide support and encouragement 1. Speech alone may be a sufficient actus reus for accomplice liability if it is intended to encourage or help the principal commit the crime. 2. Mere presence is insufficient for an actus reus unless it is offered as a form of encouragement. 3. The accomplices help need not contribute to the criminal result o A person can be guilty of aiding and abetting even if the criminal result would have occurred anyway and the Ds actions had no actual impact on the outcome. 4. The principal need not be aware of the accomplices acts 5. The accomplices acts must be capable of assisting the principal o D sees the principal about to kill the victim and yells words of encouragement by the principal is dead and unaware of Ds

presence under CL there is no accomplice liability. Under the MPC there is accomplice liability as it focuses on the Ds actual blameworthiness, not the fortuity of success. Liability for Foreseeable Offenses - General rule is that an accomplice is only responsible for those crimes he purposely helps to succeed. - Majority of jurisdictions not extend accomplice liability to both intended and those crimes that are reasonable foreseeable or are the natural and probable consequences of the Ds acts. - D asked a friend to obtain information at any cost. Friend ended up killing in order to get the information. Even though D never indicated or even considered that they would do that, he was convicted as an accomplice to murder b/c the killing was reasonable foreseeable given his request. Abandonment and Withdrawal Defense - The MPC recognizes an abandonment defense if the D terminates his complicity prior to the commission of the offense and either: 1. Wholly deprives it of effectiveness; or 2. Gives timely warning to law enforcement authorities or otherwise makes proper efforts to prevent the crime.

Relationship Between the Parties - Accomplice liability depends on proof that a crime was committed and the D assisted in the commission of the crime; it does not depend on the prosecution and conviction of the principal. Principals and accomplices may be excused from crimes for the following reasons: 1. Public Authority Justification Defense If the principal was working for law enforcement, the accomplice may still be convicted. MPC would also impose liability of an accomplice even though he helps an innocent party engage in criminal conduct. 2. Protected Class of Persons An accomplice may be immune from charges if he is within a class of persons protected by the charged statute. 3. Culpable-but-unconvictable Principal The principal may have immunity from prosecution but this defense does not automatically shield an accomplice from prosecution 4. Acquitted Principal If the principal and the D are tried in separate proceedings, the acquittal of the principal does not preclude the conviction of the accomplice 5. Different Degrees of Culpability 6. Feigned Accomplice

Model Penal Code 2.06

Under the Model Penal Code, a person can be regarded as "legally accountable" for the conduct of another, and therefore guilty of complicity, in any of three situations: He solicits such other person to commit the crime;

He aids or agrees or attempts to aid such other person in planning or committing it; Having a legal duty to prevent the commission of the offense, fails to make proper effort to do so; or When the law explicitly declares that particular conduct constitutes complicity.

Complicity arises under the MPC only when defendant aids or agrees or attempts to aid another person in planning or committing an offense. Accomplice liability can be imposed under the MPC on one who, having a legal duty to prevent the commission of the offense, fails to make proper effort to do so. Accomplice liability can be imposed under the MPC on one who solicits another person to commit a crime. Accomplice liability can be imposed under the MPC when the law explicitly declares that the particular conduct in question constitutes complicity. Instead of using the common law mens rea of "intent," the MPC focuses on whether plaintiff had the "purpose of promoting or facilitating commission of the offense." Model Penal Code 2.06 (3). It is not correct to suggest that the MPC specifically expands the mens rea requirement for all crimes to allow conviction for knowing, reckless or negligent promotion or facilitation of the commission of an offense. **The result is likely to be the same under the common law and the MPC**

**Can words spoken to the victim be enough to establish accomplice liability? Yes, words alone may be enough but they must (1) be intended as encouragement; and (2) be capable of providing assistance**

Self Defense______________________________
A D is justified in using force to protect himself from the threat of immediate and unlawful force. - General elements of self-defense: 1. Honest and Reliable fear The jury must look at the objective (reasonable grounds for belief) and the subjective (D must actually believe) elements of reasonableness for self-defense Some states will permit the D who is unreasonably mistaken about the belief that he was justified in using force (or magnitude of force used) to assert an imperfect claim of self-defense which would lead to a mitigation of the defense from murder to manslaughter NOT ACQUITTAL A and B are in a bar together. A is annoyed at B for flirting w/ As date so he shoots B. B was carrying a gun, but A didnt know that A cant claim selfdefense b/c he was not in fear when he shot him. MPC 3.04: 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 - This is only subjective standard and rids of the CL standard requiring that the actors belief be reasonable

If a jury decides that the D actually (honestly) believed that he was under imminent deadly attack, then the jury would have to render an acquittal MPC: D may use deadly force if he honestly and reasonably fears becoming the victim of a serious felony crime (rape, kidnapping or robbery) Takes a more subjective approach A Ds subjective belief that force was necessary is sufficient for self-defense unless the D is charged w/ a crime requiring a mens rea of only recklessness or negligent. If charged w/ negligent homicide, a claim of self-defense would have to involve fear that was reasonable. If charged with murder, even an unreasonable fear could be used. 2. Imminent and unlawful threat It is only to be used in situations where there are no alternatives to using force against the other person. The common law required that the threat be immediate or imminent even if the D reasonably believed that the V would carry it out soon MPC it is sufficient that the actor reasonable believed the use of defensive force was immediately necessary on the present occasion. 3. Proportional Response to that threat A person may only use that force which is necessary to protect him from attack. If a D acts in self-defense against an attacker and an innocent party is accidentally injured, the D may be excused from causing that injury unless the D acted negligently or recklessly w/ regard to that third person If the only way D can avoid a battery is to push the V into the way of a fast-moving car, under these circumstances, pushing V into the way of a fast-moving car is not justified and D must abstain and seek compensation for the battery after the fact MPC provision extends the use of lethal force in self-defense to cases in which the D faces those crimes (kidnapping, rape) in which serious harm is most likely to occur. Use of Deadly Force is appropriate when actor believes that such force is necessary to protect himself against: o Death o Serious Bodily Injury o Kidnapping o Rape 4. Defendant was not the initial aggressor There is a distinction between instigators and aggressors. A D who has reached a safe haven and then intentionally returns to a scene of violence is ordinarily viewed as an aggressor not entitled to use self-defense. An initial aggressor may reclaim the right to use self-defense by communicating to his adversary his intent to withdraw and then by attempting to do so in good faith. If his adversary continues to pursue him, the D may then protect himself with force. Circumstances where the initial aggressor can regain the right to self defense: Where the initial aggressor used non-deadly force and the victim responds with deadly force

Where the initial aggressor used or threatened deadly force but then successfully communicated his withdrawal from the altercation either expressly or impliedly to the intended victim MPC an initial aggressor only loses the privilege of self-defense if he provokes the use of force w/ the initial purpose of causing death or serious bodily harm. If an initial aggressor only threatens a moderate, non-deadly use of force and the victim escalates the encounter into one involving the threat of deadly force, the D may defend himself against the deadly attack. If D unlawfully starts a nonlethal conflict, he does not lose his privilege of self-defense if V escalated it into a lethal assault 5. Duty to Retreat This duty is only applied when the D knows he can retreat w/ complete safety. Majority of jurisdictions which impose a duty to retreat make an exception when the D is attached in his home. MPC A D does not have a duty to retreat from his home or place of work, unless he is the initial aggressor or is assailed in the workplace by someone he knows to be a co-worker. If a child is under attack the actor must if possible pick him up and retreat with him rather than use fatal force in his defense The dwelling-workplace exception to the retreat rule applies here if the place is the dwelling or place of work of either D or T MPC 3.05 (2) - When the actor would be obliged to retreat before using force in self-protection, he is not obliged to do so before using force for the protection of another person unless he knows that he can thereby secure the complete safety of such other person - When the person whom the actor seeks to protect would be obliged to retreat if he knew that he could obtain complete safety by doing so, the actor is obliged to try to cause him to do so before using force in his protection if the actor knows that he can obtain complete safety in that way - Neither the actor nor the person whom he seeks to protect is obliged to treated when in the others dwelling or place of work to any greater extent than in his own.

Imperfect Self-Defense What happens to a D who meets some of the requirements for self-defense, but not all of them? Ordinarily gives a person a partial defense to a charge of homicide. A D who has an honest, but unreasonable fear of his victim can reduce his charge from murder to manslaughter. MPC A mistake as to the need for force is a defense except for offenses that only require recklessness or negligence. The D as reckless or criminally negligent in killing b/c of his unreasonable fear and therefore reduce the charge.

MPC 3.04: Self-defense is justified when the actor believes the force is immediately necessary on the present occasion. This language was meant not to limit the privilege of using defensive force to cases where the danger of unlawful violence is imminent

There would be a privilege to use defensive force to prevent as assailant from going to summon reinforcements, given a belief that it is necessary to disable him to prevent an attack by overwhelming numbers

Defense of Another
The CL recognized as justifiable homicide the killing of another where it is committed for the prevention of some atrocious crime which cannot be avoided Two primary approaches to this issue: 1. Majority says that a D may use force in defense of a third person if he reasonable believes such force is necessary to defend that third person from imminent unlawful attack. D would be justified in using defense if it would prevent armed robbery even if he was defending a stranger 2. Minority requires that the D stand in the shoes of the person being defended and that the defense fails unless the person under attack would have had the right to use selfdefense. Under CL, the intervener bears the risk that his perception of the situation, though reasonable, is wrong the person protected must in fact have been justified in using the same degree of force in self-defense Plain clothed office would not be justified in using self-defense against this Many CL jurisdictions restricted the defense of others to the defense of close relatives, employer/employee If the D is related to the victim by a work relationship, D many be able to defense because of being bound to protect by a duty to do so Cant protect if they are strangers

MPC 3.05: Use of Force for the Protection of Other Persons - Use of force upon or toward the person of another is justifiable to protect a third person when: 1. The actor would be justified under 3.04 in using such force to protect himself 2. Under the circumstances as the actor believes them to be, the person whom he seeks to protect would be justified in using such protective force 3. The actor believes that his intervention is necessary for the protection of such other person

Defense of Property__________________________
Only limited force may be used to defend property - Deadly force may be used to protect a resident when her home is being invaded. - If lives could be at risk = deadly force may be used against an intruder - If home is unoccupied = deadly force cant be used. - MPC has very detailed rules for the use of force in defense of property: 1. A person is being dispossessed of her dwelling 2. An intruder is committing a felony against the Ds property (burglary/arson) and has used deadly force against the D 3. Attempting to use force, other than deadly force, to prevent a felony would expose the D to substantial risk of serious bodily harm

Necessity_________________________________
A person who commits a crime b/c it is the lesser of two evils can invoke the necessity defense. - Has a broader reach then self-defense cases. - Mountain climber who is caught in the middle of an unexpected snowstorm breaks into a cabin to avoid certain death. Ordinarily breaking in would be a crime of trespass but b/c it was the lesser of two evils and the D did not have any other alternatives, her actions were justified and she will be afforded a necessity defense. - Example Situation: Distributing needles to prevent HIV transmission Stealing food to avoid starvation Violating traffic laws to speed a patient to the hospital Breaking a dam to avoid the flooding of a village Some court escaping prison to avoid intolerable conditions - Strict requirements are imposed on asserting the defense, under the common law they were: 1. D faces a choice of evils Economic necessity alone is insufficient to justify the commission of a criminal act. The choice is ordinarily between suffering immediate physical harm and committing a crime. 2. There are no apparent legal alternatives The defense should only be used as a last resort and if there is a lawful alternative, the D must select it. Ds wife is very ill. Rather than taking her to the ER, D breaks into a local pharmacy for drugs, b/c the D had a lawful alternative, the defense of necessity does not apply. D needs to know that there is a lawful alternative. 3. There is an imminent harm If the threat is in the future, the D likely has time to find another alternative. Was the threat imminent enough when she engaged in her illegal conduct? 4. D chooses the lesser evil The Ds actions can only be justified if society agrees that she made the right decision under the circumstances. Objective Standard it is insufficient that the D honestly believed that she picked the lesser evil. Many jurisdictions do not allow a necessity defense in homicide even when it is allowed though they only do so when a D risks fewer lives to save more lives. 5. D may not create the necessity A D cant create her own necessity to violate the law and then rely on the necessity defense to justify her actions. MPC A D who creates her own necessity does not lose the right to assert the defense for intentional crimes, she may be prosecuted for reckless or negligent offenses if she was reckless or negligent in creating the situation. 6. There has been no legislative decision to prohibit the necessity defense in that situation

Model Penal Code

The MPC necessity is broader than the CL defense in three ways: 1. There is no immanency requirement. Immanency of harm is one factor to be considered in deciding whether the D had a lawful alternative. 2. There is no absolute prohibition on self-created necessity. 3. Necessity is available in homicide prosecutions. While most CL jurisdictions do not allow the necessity defense in homicide situations, the MPC does not have this limitation.

Duress___________________________________
If a D is compelled to commit a crime by another persons use of force or threat to use force, the D may claim the defense of duress. - The D has acted w/o a fair opportunity to exercise free will and therefore is not deserving of punishment.

Common Law Requirements

1. A Threat of Death/Serious Bodily Harm A person threatens to kill the D unless he carries drugs onto a plane, this threat would satisfy the duress defense. Threats of lesser harm may qualify under the MPC Threats of economic harm never qualify for a duress under CL or MPC 2. Imminently Posed 3. Against the D or a close friend/relative Later CL includes threats to close friends or relatives. MPC allows threats to any person to trigger duress. 4. Creates such fear that an ordinary person would yield Most important factor. Both the CL and the MPC impose a reasonableness requirement on the duress defense. A BW whose abusive spouse tells her that he will beat her up unless she steals some groceries before he returns from work. Ordinary person would simply leave the home, but another battered woman may find it reasonable to believe that has no choice. CL has been reluctant to relax this standard for fear it will give everyone an excuse. 5. The defendant did not put himself in the situation 6. The defendant is not seeking to raise the defense to a homicide

Intoxication_________________________________
Part of the excuse defenses Voluntary Intoxication Common law takes a more restrictive approach to voluntary intoxication. Supreme court has held that a D is not constitutionally entitled to raise a voluntary intoxication defense. Some jurisdictions bar the defense altogether In jurisdictions where it is allowed, it is only permitted to reduce specific intent crime.

D can argue that b/c he was intoxicated, he could not form the necessary mens rea for the crime charged If charged with assault w/ intent to murder prosecutors need to prove that not only did the D assault the V, but specifically that he wanted to kill him and intoxication can be held to be a defense to this type of conviction. Not allowed as a defense to a crime that only requires a reckless act. Drunk Driving/Vehicular Homicide/Battery/Assault Voluntary intoxication may be used to argue that D did not form the high level of mens rea required for certain crimes Premeditation (requires a cool deliberate thought) MPC 2.08: Allows voluntary intoxication to negate the mens rea of any crime, except for crimes requiring recklessness or negligence

**If a D forms the intent to commit a crime and then drinks to give himself courage to complete the task, he is NOT entitled to claim intoxication. The D formed the intent for the crime before becoming intoxicated and his intoxication does NOT negate that performed intent** **If deciding whether or not D has an intoxication defense, most important thing to do is determine whether you are dealing with a specific intent crime that requires a sophisticated level of intent or a general intent crime that is on par w/ recklessness and negligence standard of the MPC** Involuntary Intoxication Complete defense if it causes the D to commit a crime he would not have otherwise committed While D is not looking, someone slips a drug into his drink. After drinking the doctored drink, the D hallucinates and commits a crime. D has a full defense to the crime if, in the hallucinated state, he was unaware of the criminal nature of his acts. Take takes three forms: 1. Unwitting Intoxication Person is unaware that he is ingesting alcohol or a drunk If the D is aware that his drink is altered, but does not know what the effect will be of the adulterant, the D CANT claim involuntary intoxication as he chose to take the risks 2. Coerced Intoxication Person is forced to ingest a drug or alcohol 3. Pathological Effect Intoxication Refers to medication or alcohol producing an unexpected grossly excessive effect. o D takes an aspirin but has an unnatural reaction and it has the same effect on him as LSD would have on others. D may be able to argue involuntary intoxication because of the unexpected, extreme mind-altering effect of the aspirin. MPC 2.08(4): Intoxication grossly excessive in degree, given the amount of intoxicant, to which the actor does not know he is susceptible

MPC 2.08: Intoxication that is not self-induced or is pathological can serve as a full defense, if it has the same impact as insanity it causes the actor to not know what he is doing or to lose the ability to conform his conduct to the law. **When answering question like this, assess each Ds chances of arguing involuntary intoxication. If someone has an idea that the substance would probably have some mind-altering effect on her, even though she may not realize how much of an effect, would not have a good argument for involuntary intoxication**

Insanity____________________________________
Insanity, if proved, is a full defense to a criminal charge. Insane persons can still form mens rea, it is only that their intent was generated by a diseased mind. Insanity defense focuses on whether the D whose diseased mind has caused her to form criminal intent should be punished, nor whether the D formed the mens rea for the offense. MNaghten Standard Traditional legal insanity test Under this test, D is presumed sane, to prove insanity must demonstrate: 1. At the time of the commission of the offense; 2. The defendant was laboring under a defect or disease of the mind; and 3. The defendant did not know The nature and quality of his acts; or That his acts were wrong Under the MNaghten test, a D is insane if he has a mental disease or defect that caused him not to know the nature and quality of his acts or that his acts were wrong. D thinks that he is chopping open a watermelon, however, he is hallucinating and he is really chopping open a persons skull this D would meet the MNaghten standard. If D knew that he was chopping open a persons skull, but could convince a jury that b/c of his mental disease or defect he had no idea that his conduct was wrong, he too would have an insanity defense under the MNaghten standard.

**If through the facts of the question it reveals that D knows of the nature of his acts (in his statement he says Im sorry that people will have to die, meaning he knows that he may kill people) he would not meet the standards of the MNaghten test**

Conspiracy_________________________________
The gist of the offense of conspiracy lies in the unlawful agreement. A mere agreement to commit a crime is conspiracy. **Whenever there are more than 2 defendants in a fact pattern, you should automatically examine the problem for possible conspiracy or accomplice liability or both** Conspiracy is a separate crime carrying its own penalties Allows the apprehension of potential criminal conduct at an earlier stage than attempt

Members of a conspiracy are vicariously responsible for the criminal acts of their coconspirators, even w/o proof of accomplice liability if it was in furtherance of the crime Conspiracy allows the apprehension and prosecution of large groups of individuals It is a continuing offense that gives prosecutors a longer time to file charges Venue for conspiracy charges exists anywhere in which an act of the conspiracy occurred To be guilty of Conspiracy: Defendant must (1) agree to commit a crime; (2) w/ the intent to have the crime succeed and in some jurisdictions, (3) one of the conspirators must have committed an overt act toward the commission of the crime. Punishment depends on the jurisdiction

Substantive Consequences
1. Conspiracy is a separate crime If two or more persons agree to commit a crime AND commit it, each is guilty of at least conspiracy and the completed offense Different under the Model Penal Code 2. Conspiracy punishes preparatory conduct The mere act of agreeing to commit a crime is sufficient for the conspiracy even if there is no substantial step toward completing that crime 3. Conspirators have co-conspirator liability Once a D joins a conspiracy, they can be responsible for all acts of the co-conspirators done within the scope of the conspiracy, even w/o evidence of accomplice liability. 4. Under Federal Law conspiracy aggravates the degree of the crime Conspiring to commit a misdemeanor is a felony even though the target offence, when accomplished, would only be a misdemeanor. Many states reject this approach.

Actus Reus Requirement Conspiracy

Actus Reus of conspiring = to agree to commit a crime Can be either express or implied. Words/actions/similar motives and even gestures like a nod, wink, or handshake are enough to demonstrate agreement. Mere presence at a crime scene is not necessarily enough to prove that the D agreed to commit the crime A and B independently decide to rob a bank, w/o any conduct with each other, A enters through the front door and B enters through the back door and rob the bank at the same time. Ds parallel actions do not necessarily prove that they had an agreement. D need not know all of the members of the conspiracy or have contact with them. It is sufficient if a D knows he is agreeing w/ others to commit a crime. D agrees to help in a narcotics conspiracy. D need not know the identity of the supplier or distributors yet the D is still a co-conspirator with those individuals. Not all conspirators must join the conspiracy at the same time.

Mens Rea Requirement Conspiracy

Requires two mens rea:

Intent to agree (join the conspiracy) To be guilty of conspiracy, the jury must find that the Ds words or actions indicated that the D intended to join the conspiracy W/ the purpose to commit a crime As w/ accomplice liability, conspiracy requires that the D have the purpose to commit a crime. If A asks B and C to help her package white powder that A knows to be cocaine and plans to sell on the streets. B and C are only guilty of conspiracy to distribute if their purpose is to assist in the distribution of drugs. They are not guilty if they believe that they are helping A store baby power for his own use. When purpose is the required mens rea, knowledge alone is INSUFFICIENT to convict a D of conspiracy. There are ways that a jury can infer a Ds purpose to have a crime succeed: D has a stake in the illegal venture, as demonstrated by her inflation of rates charged for the illegal use of her business D provides goods or services that serve no legitimate use The volume of business the D conducts w/ those buyers who engage in illegitimate activities is grossly disproportionate to any legitimate demand and use of the Ds services or products. D need only know of those attendant circumstances that the D would need to know for the substantive crime. If D agreed w/ others to attack a person, but did not know that person was a federal officer, the D would still satisfy the mens rea requirement b/c the status of the victim was not a material element for the assault or conspiracy charge.

**When answering conspiracy questions, dont just focus on Ds words, focus on his intent. If D was just kidding when he responded he didnt have the purpose to join a conspiracy**

Overt Act Requirement

An overt act is any legal or illegal act done by any of the conspirators to set the conspiracy in motion A and B decide to rob a bank. A calls the bank to see what time it opens. As acts is sufficient to be an overt act for both A and B. Doesnt take much to satisfy the overt act requirement only need to show that the conspiracy has gotten off the ground and proceeded beyond the mere idea state into action. Jury only needs to find that ONE conspirator committed ONE overt act.

Co-Conspirator Liability Pinkerton Rule

Pinkerton Rule: a conspirator is responsible for all acts of her co-conspirators during the course of and in furtherance of the conspiracy; even if the conspirator is unaware these acts are being committed. D can be charged w/ conspiracy even though he could not be charged as an aider or abettor in the crime. Co-conspirator liability is broader than accomplice liability b/c it applies even if the coconspirator is unaware that the crime is being committed and has done nothing to help the commission of the crime.

D need not anticipate that a co-conspirator would commit that crime It is sufficient if the crime committed was reasonable foreseeable and was a natural consequence of the conspiracy. MPC has rejected the Pinkerton rule Pinkerton rule is not applied retroactively: Conspirator is not guilty of substantive offences committed by co-conspirators prior to his joining the conspiracy even if those acts by the co-conspirators may be used as evidence to prove the general conspiracy.

Scope of the Agreement Single or Multiple Conspiracies

If a D is charged w/ the acts of another conspirator, she can avoid liability if it can be shown that they were members of different conspiracies. Wheel Conspiracy All the conspirators are tied together through the same middleman. If the separate spokes of the wheel have a vested interest in the success of one anothers illegal conduct, there is a single wheel conspiracy and each individual member is responsible for the crimes of every other member of the conspiracy. One way to show a common interest is to prove that the individual conspirators relied on the success of each other in succeeding in their plan. o If the individual used part of the proceeds obtained by the others, a common venture would be shown If the only connection among the spokes if that they know the same middleman, there are multiple small conspiracies and the spokes of the wheel are NOT liable for one anothers act. Chain Conspiracy Conspirators participate in a single conspiracy by performing different roles along a single distribution line. Although they might not know each conspirators identity, they know that there must be someone at the various stages to ensure that the scheme works Combined Conspiracy Have elements of both wheel and chain conspiracies There may be a line of distribution but parties along that line may also have multiple customers who operate more like a wheel conspiracy Multiple retailers who were the spokes of mini wheel conspiracies were not responsible for each others sales transactions because the court saw them more as competitors than collaborators. Multiple Objectives to One Conspiracy In figuring out the scope of a conspiracy, do not be misled by the fact that there may be multiple objectives to a single conspiracy. If a conspiracy has its goal to commit several crimes, it is still ordinarily viewed as one conspiracy. D might agree to import and distribute illegal drugs. Even though the conspiracy has two objects, it is still one conspiracy.

Rules Regarding Parties to Conspiracy

Ds can also argue that the agreement was not between two or more persons that qualified as conspirators under the law. Gebardi Rule A person who is protected by the law that the Ds are conspiring to violate cannot be a valid party to the conspiracy. D hires children to work in a sweat shop, against child labor laws. Under the Gebardi rule, b/c the children are protected by the child labor laws, they do not qualify as co-conspirators so there is no conspiracy. If D had an assistance that helped him hire the children then there is a conspiracy because two qualified conspirators is enough to sustain a conspiracy charge. Wharton Rule If it is impossible to commit the substantive offense w/o cooperative action, the preliminary agreement between the parties to commit the offense is not an indictable conspiracy. Prohibits double counting the conspiracy and the substantive offense. Bigamy/Adultery/Incest/Gambling/Buying and Selling contraband If the only two persons involved in a bribe are the giver and recipient, they are guilty of bribery but could not also be charged w/ conspiracy to bribe. MPC takes s similar approach but calls it something different. Bilateral Rule Traditionally, a conspiracy required two guilty minds. Thus, a person could not be convicted of conspiring with an undercover cop. Some jurisdictions (and the MPC) have adopted to the unilateral concept If the D believes he is conspiring w/ another to commit a crime, he is guilty of conspiracy regardless of whether the other person can be convicted. A corporation cannot conspire solely w/ its own agents.

Duration of Conspiracy and Abandonment/Withdrawal Defense

Conspiracy BEGINS the minute two or more persons agree to commit a crime Conspiracy ENDS when it has been abandoned or its objectives have been achieved. A conspirator may limit her liability by withdrawing from a conspiracy and renouncing her involvement: Under CL, a co-conspirator could end her Pinkerton Liability for the future crimes of coconspirators by withdrawing from the conspiracy, but would still be on the hook for the original crimes of the conspiracy. D would have to take affirmative actions to announce her withdrawal to ALL the other conspirators. In some jurisdictions, would also have to notify law enforcement. Under MPC: statute of limitations for conspiracy begins to run once the D has either informed her co-conspirators or notified the authorities that she is terminating her association. Also an affirmative defense if the D successfully thwarts the success of the conspiracy. If D does this, she can avoid liability for even the initial conspiracy she joined.

**Under Common Law, there was no way out of a conspiracy once a D joined, at best, a D could limit her liability for future co-conspirator crimes. Under the MPC, a D may be able to renounce a conspiracy and avoid criminal liability if she prevents its commission**

Model Penal Code 5.05

The punishment for conspiracy is the same as provided for the most serious offense that the parties conspired to commit. The crime of conspiracy MERGES w/ the completed target offense UNLESS the prosecution proves the conspiracy involved the commission of additional offenses not yet committed or attempted. Overt Act Requirement: general requirement of an overt act for conspiracies, but no overt act requirement for most serious crimes. The MPC has REJECTED the Pinkerton Rule A conspirator is only guilty of the substantive crime of a co-conspirator if there is evidence of accomplice liability. The MPC does not specifically recognize the Wharton Rule but provides that a D is not an accomplice if the conspiracy is inevitably incident to the commission of his crime. If the D believes he is conspiring w/ another to commit a crime, he is guilty of conspiracy regardless of whether the other person can be convicted. Under MPC: statute of limitations for conspiracy begins to run once the D has either informed her co-conspirators or notified the authorities that she is terminating her association. Also an affirmative defense if the D successfully thwarts the success of the conspiracy. If D does this, she can avoid liability for even the initial conspiracy she joined.